Kim v. McCullom

Blackburn, Judge.

Bok Ja Kim appeals the judgment of the trial court, entered after a bench trial, finding her liable for the unpaid portion of a note she signed to finance the purchase of a business.

On March 25, 1994, Shaun G. McCullom sold Kim a restaurant business located in the Grant Building in downtown Atlanta. Kim paid one-half of the purchase price at the time of closing and signed a note to pay the remaining $15,000 in monthly installments. As a part of the sale, McCullom agreed to assign the restaurant’s existing lease to Kim; however, by its own terms, the lease required the landlord’s prior written consent to any assignment. Kim and McCullom agreed that Kim could rescind the restaurant sale within seven days if the landlord’s written consent was not forthcoming.

Despite receiving no formal assignment of the lease from the landlord, Kim proceeded to operate the restaurant. Her initial payment under the note, due on April 25, 1994, was not made until June 3,1994. She made no further payments. On June 20,1994, McCullom commenced the underlying suit. While she ceased making payments on her note, Kim continued to operate the restaurant and made rental payments to the landlord through October 1994. In November or December of that year, she abandoned the restaurant altogether and left the state. To prevent a default under the lease, on which he was still the named tenant, McCullom reentered the premises and reopened the restaurant. In doing so, McCullom incurred $2,985 in expenses.

After a bench trial, the trial court awarded McCullom $13,750 in principal owed under the note plus interest, as well as the $2,985 in expenses incurred to reopen the restaurant. After entry of the judgment, Kim tendered all amounts due thereunder to McCullom with payment conditioned upon redemption of the collateral that secured the note which included the restaurant’s fixtures, equipment, and inventory. When this conditional tender was rejected by McCullom, Kim filed a motion for modification of judgment or, in the alternative, for entry of satisfaction of judgment seeking to enforce her right of redemption pursuant to OCGA § 11-9-506 or to have the judgment *440declared satisfied pursuant to OCGA § 11-9-505 (2) because McCullom retained possession of the collateral. The motion was denied, and this appeal ensued.

1. In her first three enumerations of error, Kim contests the trial court’s determination that McCullom had fulfilled his obligation to assist in obtaining the landlord’s consent to the lease assignment and that Kim had no right to rescind under this provision of their sales agreement. Assuming without deciding that the trial court erred in making this determination, we find no harm resulted from the alleged errors. The record clearly reveals that Kim did not attempt to rescind the sales contract until months after she stopped paying the note.' “The right of a party to rescind a contract depends upon that party’s not having breached the contract himself.” (Citations and punctuation omitted.) Williams v. Dienes Apparatus, 200 Ga. App. 205, 207 (407 SE2d 408) (1991). Consequently, in light of her own breach, Kim was foreclosed from rescinding her sales agreement regardless of whether its condition concerning the assignment of the lease was met.

2. In her fourth enumeration, Kim asserts that the trial court erred in awarding McCullom the expenses he incurred to re-open the restaurant as he had not specifically prayed for these damages in his pleadings. According to the record, McCullom’s first mention of these expenses came at trial and evidence of their amount was admitted over Kim’s repeated objection. “When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. If evidence is objected to at the trial on the ground that it is not within the issues made by the pleadings, the court may allow the pleadings to be amended and shall do so freely when the presentation of the merits of the action will be subserved thereby and the objecting party fails to satisfy the court that the admission of such evidence would prejudice him in maintaining his action or defense upon the merits.” (Citations and punctuation omitted; emphasis in original.) Burger King Corp. v. Garrick, 149 Ga. App. 186, 188 (253 SE2d 852) (1979); see also OCGA § 9-11-15 (b). In this case, Kim did not satisfy the trial court that the admission of this evidence would prejudice her as the trial court permitted the amendment over Kim’s repeated objection of undue surprise. We do not find that the trial court erred in permitting the amendment. “Not only is the right of amendment very broad, but so is the court’s discretion in this regard, and its determination will not be disturbed absent abuse.” Henderson v. Easters, 178 Ga. App. 867, 870 (345 SE2d 42) (1986).

3. In her fifth and sixth enumerations of error, Kim asserts errors concerning the trial court’s failure to consider whether Kim should receive credit on her debt for the collateral that secured the *441note. Particularly, she asserts that the trial court erred in not requiring McCullom to account for the collateral and in not permitting her to present evidence of the value of the collateral at the time of McCullom’s alleged repossession. The record reveals that at no time during the trial did Kim ask McCullom to account for the collateral, nor does it reveal that Kim ever sought to introduce evidence of the value of the collateral. “On appeal, this court does not review issues which were not raised and ruled on below.” Tyler v. Bennett, 215 Ga. App. 87, 88 (449 SE2d 666) (1994). Accordingly, neither of these enumerations presents issues appropriate for appellate review.

4. In her final enumeration, Kim asserts that the trial court erred in not granting her post-judgment motion regarding the status of the collateral. As noted above, a review of the record reveals that Kim did not make any arguments pertaining to the collateral during the trial. In fact, Kim filed affidavits and exhibits to her post-judgment motion in order to supply the court with pertinent evidence concerning the collateral that had not been submitted during trial. OCGA § 9-11-60 provides the exclusive method by which civil judgments may be attacked. Daniels v. McRae, 180 Ga. App. 732, 734 (350 SE2d 317) (1986). It does not permit the use of post-judgment motions to raise arguments or introduce evidence previously known to the parties but not addressed at trial. See Complete AAA Mfg. Corp. v. C & S Nat. Bank, 119 Ga. App. 450, 452 (2) (167 SE2d 734) (1969) (issues raised in a post-judgment motion, but not “asserted at the trial, can not now be asserted as a basis for reversal”). Accordingly, the trial court did not err in denying Kim’s post-judgment motion.

Judgment affirmed.

Birdsong, R J., concurs. Beasley, C. J., concurs specially.