concurring specially.
I concur in the judgment and in the assessment of a penalty as provided by OCGA § 5-6-6, but we need not rule on the direction of a verdict on the fraud defense, as is done in Division 1, because appellant did not enumerate it as error. See Hess Oil & Chem. Corp. v. Nash, 226 Ga. 706, 709 (177 SE2d 70); Bryant v. BMC of Ga., 188 Ga. App. 124, 125 (2) (372 SE2d 280) (1988); see also the writer’s dissents in ITT Fin. Svcs. v. Gibson, 188 Ga. App. 188, 190 (372 SE2d 468) (1988); Taylor v. State, 186 Ga. App. 113, 115 (366 SE2d 422) (1988). The only enumeration of error is that the trial court erred in failing to charge the jury on the “defenses” of “fraud and unclean hands.” Not having challenged the direction of a verdict on fraud, which appellant acknowledges the court did at the conclusion of the evidence and before the proposed charges were discussed, that issue is not presented for our resolution.
What is more, it indicates the frivolous nature of the appeal, for it would be useless to reverse the judgment for the refusal to give the jury instruction when the directed verdict stands unassailed and unchanged.
Moreover, appellant did not properly preserve the objection to the refusal to give the requested charge, as it is not in the record as *795such. OCGA § 5-5-24 (b). Appellant does cite that portion of the trial transcript where it noted its objection to the court “not charging our request on five.” We can, it is true, glean its content. Immediately prior to this objection, when counsel asked the court if “number five” would be given, counsel described it as “That’s the clean hands. That relates to attaching the document to the court pleadings.” The court read aloud what apparently was requested: “Now, clean hands is a defense against a claim in equity.”
Decided July 11, 1995. Wall & Noonan, W. Alford Wall, Thomas J. Hills, for appellant. Clifford H. Hardwick, for appellee.Even if this were regarded a sufficient record basis upon which this Court should rule on the merits of the charge, it certainly does not constitute a charge on fraud. And yet, in this Court, appellant claims the court erred in failing to charge on fraud as well as unclean hands. Such imprecision contributes to the conclusion that the appeal “was taken up for delay only.”
I am authorized to state that Presiding Judge Pope, Judge Smith and Judge Ruffin join in this special concurrence.