text:
    A95A2537.
    TRANAKOS v. MILLER et al.
    (470 SE2d 440)
   Andrews, Judge.

The underlying action was filed in December 1986 and has meandered through the legal system ever since. John and Rachel Miller sued Arthur P. Tranakos individually and d/b/a The Snuggery, Inc., claiming breach of contract, fraud, deceit, legal malpractice, breach of fiduciary responsibilities, cancellation of promissory notes, and violation of Georgia’s Racketeer Influenced and Corrupt Organizations Act. The Millers later amended their complaint to include the Tranakos Grandchildren Trust as a defendant. The Millers’ case was consolidated with a related case brought by William R. Murray, Ken Ramsey, Mike Roberts, and Leola and Donald Haugh.

After protracted litigation including multiple appeals, the case appeared to be finally resolved by March 1, 1994, the scheduled day of trial. Opposing counsel, in a conference call, allegedly jointly informed the trial judge’s calendar clerk (actually her substitute, a floating calendar clerk) that the case was settled. It is undisputed that the attorneys participated in a three-way telephone conference call with the calendar clerk. According to the terms, Tranakos agreed to pay a total of $1,250,000, $250,000 to each party and consented to judgment against him as to each count. The oral settlement agreement was not memorialized that day and subsequently unravelled. John Miller, the estate of Rachel Miller, William R. Murray, Ken Ramsey, Mike Roberts, and Leola and Donald Haugh (collectively “Miller”) then filed a second motion to enforce the settlement agreement.

In support of the motion to enforce the settlement, Miller’s attorney, Robert Moss, filed his own affidavit, attached the transcripts of four recorded telephone conversations with Michael D. Bolen, Tranakos’ attorney and submitted the actual tape recordings to the clerk of the court for filing. Robert Moss made these recordings without Bolen’s knowledge or permission.

According to the transcript of April 19, 1994, Tranakos’ counsel did not dispute that there had been an agreement or that Tranakos had agreed to pay each claimant $250,000. Bolen advised opposing counsel, Moss, there was, however, a problem with the agreement because Tranakos had decided to strike the language whereby he consented to judgment on the specific counts. According to Bolen, Tranakos had retyped the agreement just omitting that section and had already mailed it to Moss.

According to the transcript of May 3, 1994, Bolen failed to contradict or disagree with Moss’s statement, “[W]e agreed on the agreement, we mentioned it to the Clerk, we agreed on the amount and we agreed it was for all counts.” Moss warned Bolen that he had just finished dictating a motion to enforce the settlement agreement.

According to the transcript of June 13, 1994, Bolen again admitted they had spoken with the judge’s calendar clerk, that he had been acting for Tranakos and that they told the clerk the terms of the consent judgment. Bolen explained that Tranakos had experienced a “change of heart” and was now “fussing about” the amounts.

According to the transcript of June 15,1994, Bolen stated that he thought he had Tranakos’ authority when he agreed to the consent judgment. Bolen told Moss he had discussed the settlement with Tranakos and Tranakos told him he had authority to make the phone call. Bolen also stated that it was his understanding that Tranakos had agreed to the $250,000 per plaintiff amount.

In opposition to Miller’s motion, Tranakos filed his affidavit and that of his attorney, Michael D. Bolen, and a letter from Moss to Bolen dated February 7, 1994. Tranakos claimed that there was no settlement agreement and that this situation was analogous to that of November 1991 when Miller filed the first motion to enforce settlement. That time, the same trial court judge refused to grant the motion to enforce settlement because he concluded there was a conflict as to whether there was a settlement agreement. Tranakos claimed that Bolen had only limited authority and could not bind him unless he provided his express, written consent. Tranakos also testified that because of Bolen’s ill health, he refrained from contacting Bolen and was unaware of the settlement discussions until he received a copy of the proposed consent judgment which he deemed unacceptable. Tranakos testified that Moss knew that any settlement was expressly subject to Tranakos’ prior approval.

In his affidavit, Bolen testified that neither he nor his client had authorized a settlement and that there had never been a final settlement agreed to by all the parties. He testified that Moss was fully aware that Tranakos had to approve any settlement agreement. Bolen also claimed that during the January and February settlement discussions he had been gravely ill, could not meet with Tranakos, and was confused as to the state of these negotiations. Finally, Bolen testified that Tranakos had not authorized him to enter into any settlement.

On July 18, 1994, the trial court entered an order to enforce the settlement agreement, and signed a consent judgment in favor of the plaintiffs and against Tranakos as to each count. The court entered judgment for $250,000 for each claimant and awarded post-judgment interest. Implicit in the court’s enforcement order are findings that: 1) Bolen was authorized to settle the case; 2) an enforceable settlement agreement was reached; and 3) Bolen was competent at the time the settlement negotiations were reached.

On August 17, 1994, Tranakos filed a motion for a new trial. In denying the motion, the court deemed it to be a motion for reconsideration of the court’s order granting plaintiffs’ second motion to enforce the settlement agreement. In a later order denying Miller’s motion to dismiss notice of appeal, the court corrected itself and noted that the motion for new trial should not have been construed as a motion for reconsideration because the court made a factual determination of whether Tranakos’ attorney was competent. The court concluded that Tranakos’ notice of appeal was timely as being based on the court’s denial of a motion for new trial.

1. Tranakos contends that the trial court erred in ruling that there was a settlement agreement between the attorneys which was binding on him. Tranakos claims that he made it expressly clear to opposing counsel that he personally would have to provide consent to any agreement. He argues that because he did not consent, there was no agreement.

“Factual findings made by the trial court will not be set aside unless clearly erroneous. Mutual Ins. Co. of New York v. Dublin Pub, 190 Ga. App. 94, 95 (378 SE2d 497) (1989).” Johnson v. Gwinnett County, 215 Ga. App. 79, 81 (449 SE2d 856) (1994). With that in mind, we consider the evidence.

Tranakos states that on July 18,1994, the trial court held a “nonevidentiary hearing.” We note that Tranakos failed to sustain his burden of having a transcript of the hearing sent for appellate review. Young v. First American Bank &c., 196 Ga. App. 348 (396 SE2d 73) (1990). Lacking a transcript of the hearing, we presume the judge correctly ruled on the issues presented. Attwell v. Heritage Bank Mt. Pleasant, 161 Ga. App. 193 (291 SE2d 28) (1982). The record evidence includes the affidavits of Tranakos, his counsel and opposing counsel. Additionally, the trial court noted that in making its determination as to whether there was a settlement agreement, it considered the entire record.

The record includes the following. While this case was pending, Tranakos devolved from a licensed, practicing attorney to a convicted felon. Particularly pertinent is evidence relating to Tranakos’ truthfulness and obstructionism. Several months before the filing of the instant action, the United States Tax Court suspended Tranakos from further practice before it for two years from February 7,1986. In the accompanying memorandum to the federal tax court’s suspension order, the panel noted that Tranakos offered into evidence “a document falsely appearing to be a corrected Form W-2,” that “he knew not to be what it appeared on its face to be” and termed this “an inexcusable misleading of the Court.” In addition to other findings of wrongdoing, the panel determined that Tranakos had “specifically misrepresented the facts with respect to the filing” of a particular case.

At about the two-year point in the underlying litigation, Tranakos was convicted in the United States District Court of Wyoming for conspiracy to commit fraud, obstruction of justice, and aiding and assisting in counseling, procuring, and advising the preparation of false tax returns. On March 3, 1989, the district court sentenced Tranakos to serve four years with an additional five years on probation.

Prior to his federal conviction, Tranakos was held in contempt of court and confined for about one week to a federal penitentiary for contempt for his refusal to comply with an Internal Revenue subpoena. During the pendency of this litigation, on multiple occasions, the previous trial court sanctioned Tranakos holding him in contempt of court for his wilful failure to comply with discovery. In his deposition taken for this case, Tranakos admitted that on the advice of his attorney he had surrendered his license to practice law in Georgia.

In this case, acting as the trier of fact, the trial court sorted through the facts, the affidavits and counter-affidavits, and other evidence in the record and concluded that Tranakos’ attorney was competent, there had been a settlement agreement and it was binding on Tranakos. The record shows Tranakos’ credibility was undercut by his federal conviction for fraud including assisting in the preparation of false tax returns and his suspension from federal tax court practice for, inter alia, making serious misrepresentations to the tax court. Tranakos’ attorney’s credibility was undercut by the transcripts of the four recorded telephone conversations. Having reviewed relevant portions of the record and transcript, we cannot say the trial court’s factual findings were clearly erroneous. Johnson, 215 Ga. App. at 81. Accordingly, the trial court correctly determined that there was a settlement agreement.

Having decided that there was an oral settlement agreement, we must next determine whether that oral agreement was enforceable under the circumstances here. Oral settlement agreements made between counsel, if established, are enforceable. Here, the tape transcripts demonstrate there was an agreement as to all the counts and a sum certain for each claimant. See Crystal Cubes &c. v. Kutz, 201 Ga. App. 338, 340 (3) (411 SE2d 53) (1991) (holding confirming letters between attorneys sufficient to show settlement agreement); see generally LeCroy v. Massey, 185 Ga. App. 828 (366 SE2d 215) (1988) (holding where existence of agreement contested, absence of writing prevents its enforcement). Generally, where the very existence of the settlement agreement is disputed, it may be established only by a writing. Id. at 829. Here, the written transcripts satisfy the writing requirement by providing certainty and finality as to the exact terms of the agreement. Kutz, 201 Ga. App. at 340.

“ ‘Verdicts and judgments rendered by consent of counsel in good faith and without any fraud or violation of express instructions given by the client to the attorney and known to the adverse party or his attorney are binding upon the client, the consent of counsel being in law the consent of the parties they represent.’ (Cits.)” Phoenix Properties &c. v. Umstead, 245 Ga. 172 (264 SE2d 8) (1980). See OCGA § 15-19-5 and Uniform Superior Court Rule 4.12.

In this case, when Bolen acted on Tranakos’ behalf he believed he had received settlement authority from Tranakos and as he later told Moss, he had been in telephone contact with his client. The fact that Tranakos later had a change of heart is irrelevant as to whether on March 1, 1994, Bolen had settlement authority. Tranakos has offered no evidence that the opposing parties or their counsel were made aware that at the time of the settlement telephone call to the calendar clerk, his attorney, although exercising settlement authority, lacked that authority. “[F]rom the perspective of the opposing party, in the absence of knowledge of express restrictions on an attorney’s authority, the opposing party may deal with the attorney as if with the client, and the client will be bound by the acts of his attorney within the scope of his apparent authority. The client’s remedy, where there have been restrictions not communicated to the opposing party, is against the attorney who overstepped the bounds of his agency, not against the third party.” Brumbelow v. Northern Propane Gas Co., 251 Ga. 674, 675 (308 SE2d 544) (1983).

Decided March 1, 1996

Reconsideration denied March 27, 1996

Gray don W. Florence, Jr., for appellant.

Moss & Rothenberg, Robert A. Moss, for appellees.

2. Tranakos’ contention that the trial court erred in ruling that his motion for new trial was actually a motion for reconsideration was rendered moot by the trial court’s order of March 1,1995, wherein the court corrected itself and concluded that motion was, in fact, a motion for new trial. Also, we deny Miller’s motion to dismiss appeal, having found Tranakos’ appeal of this case was timely under OCGA § 5-6-38 (a).

3. As to the final two enumerations of error, Tranakos fails to support them with argument, authority, and citation to the record. Consequently, to the extent that these enumerations are not disposed of by our holdings in Divisions 1 and 2, they are deemed abandoned. Pappas v. Southeast Universal Dev., 202 Ga. App. 627, 628 (4) (415 SE2d 190) (1992); Court of Appeals Rule 27 (c) (2) and (3).

Judgment affirmed.

McMurray, P. J., and Blackburn, J., concur.

       The motion to enforce settlement agreement, which is an unofficial copy, not file-stamped, does not show John Miller or the estate of Rachel Miller as parties to the filing of the motion.

       Judge William Daniel originally had this case from 1986 until he recused himself on March 2, 1989, and it was apparently reassigned to Judge Isaac Jenrette.


source: Caselaw Access Project

author: McMurray, Presiding Judge.

license: Public Domain

text:
    A95A2745.
    SOUTHERN COMPANY et al. v. HAMBURG.
    (470 SE2d 467)
   McMurray, Presiding Judge.

This defamation action arose after The Southern Company (“Southern”) issued two press releases regarding the suspension and discharge of Jeffrey R. Hamburg as President and Chief Executive Officer of a Southern subsidiary known as Southern Electrical International, Inc. (“SEI”). Southern, SEI and Paul DeNicola, Southern’s executive vice president and member of SEI’s board of directors (defendants), filed this appeal, challenging the sufficiency of the evidence with regard to awards on Hamburg’s claims for defamation, breach of his employment contract, and attorney fees and expenses of litigation under OCGA § 13-6-11. We affirm in part, reverse in part, and remand for consideration of the probative evidence supporting Hamburg’s claim for attorney fees and expenses of litigation.

On October 3, 1991, Kimberly Dozier, a reporter with a leading utility industry publication known as The Energy Daily, received a telephone call from a man who said that SEI’s president and chief executive officer “is being fired.” The tipster “didn’t identify himself and told [the reporter] to look into it.” Dozier hung up and immediately telephoned Gale Klappa, Southern’s vice president in charge of public relations. Klappa responded by dictating the following press release: “An internal review of Southern Electric International’s business practices is being conducted to determine whether the company’s ethical standards have been met. SEI President Jeff Hamburg is cooperating with this review, and pending the outcome of the evaluation, J. R. Harris, who recently served as vice president of our investor relations office in New York, has assumed Hamburg’s administrative responsibilities at SEL More detailed information will be made available at the conclusion of this review — which we expect to be completed by early next week.”

Three days later, during a Sunday evening meeting on October 6, 1991, SEI’s board of directors voted to discharge Hamburg and, at 10:00 the next morning, Gale Klappa telephoned Kimberly Dozier and told her, “we’ve got the rest of the story[,] or the results of our investigation are done [and we] have a statement, would you like it?” Klappa then read a prepared statement and affirmed that SEI’s investigation involved “the Pego Plant, [a] 600 megawatt oil plant [in Portugal].” A written memorandum from Klappa was later forwarded to Dozier and made available to other news publishers across the country. The memorandum is captioned, “News Advisory From Southern Electrical International — a subsidiary of The Southern Company.” It states as follows: “Over the past several days, the board of directors of Southern Electric International has been conducting an internal review of the business practices of the organization. SEI — a subsidiary of The Southern Company — designs, builds, owns, and operates cogeneration and independent power production facilities. SEI also provides a broad range of technical services to industrial companies and utilities in domestic and international markets. The internal review focused primarily on a project under development in Portugal. Acting on the results of the investigation, the SEI board has dismissed the president and chief executive of the company. Jeff Hamburg has served in this position since July of 1989. All information obtained from the review is being provided to the appropriate government agencies. ‘We’re committed to taking decisive action when our business standards are not met,’ said Paul DeNicola, a member of the SEI board and executive vice president of The Southern Company. On an interim basis J. R. Harris, who recently served as vice president in The Southern Company’s investor relations office in New York, has been named president of SEI. ‘We will begin a search for a new president immediately,’ DeNicola said, ‘and I’m confident that the quality of service and expertise that SEI employees have provided to their clients throughout the world will be maintained today and in the years ahead.’ ”

Kimberly Dozier authored an article in the October 8, 1991, edition of The Energy Daily captioned, “SEI’s Hamburg Fired For Unethical Acts.” The article states: “Southern Electric International fired its President and Chief Executive Officer Jeff Hamburg on Monday for unethical business practices in bidding for a coal-fired power plant in Portugal, the SEI board said. Hamburg has served in these positions since July 1989. Hamburg was dismissed after the SEI board conducted an internal review of the company late last week, the board said. The resulting information is being given to the appropriate government agencies, added Southern Co. Spokesman Gale Klappa. SEI is the Southern Co. affiliate that designs, builds, owns and operates cogeneration and independent power production facilities. ‘We’re committed to taking decisive action when our business standards are not met,’ said Paul DeNicola, a member of the SEI board and executive vice president of the Southern Co. J. R. Harris, who recently served as vice president in Southern’s investor relations office in New York, has been named SEI’s interim president. The Portugal project that led to the investigation is a two-unit, 600 megawatt coal-fired facility north of Lisbon. The Portuguese national power agency, Electricidade de Portugal, is selling the partially constructed plant as part of its plan to privatize its power industry. The buyer would complete one unit of the plant by 1993, and the second by 1995, and would sell power back to the power agency. SEI is the major player in one of four groups that submitted bids for the project in June. The Portuguese government is expected to make a decision on the bid by or before the end of the next year, Klappa said.”

Vice President Klappa telephoned Kimberly Dozier a day or so after the appearance of her October 8, 1991, article and “said that in their statement they never directly said what [Dozier] reported, [i.e.,] that Mr. Hamburg was fired for unethical business practices, to which [Kimberly Dozier] replied, but your first release said that the investigation was into the company’s ethical standards, your second release said acting on the results of the investigation the board has dismissed the president, and then two paragraphs down you have a company spokesman, Paul DeNicola,. . . saying, we’re committed to taking decisive actions when our business standards are not met. [Dozier then asked Klappa,] What do you want? Would you like us to publish a correction?” Klappa responded, “no, that won’t be necessary, I just wanted you to keep in mind for the next time you read a story on this, that we never said that.”

After his discharge, Jeffrey R. Hamburg brought an action against defendants, seeking damages for defamation, intentional infliction of emotional distress and breach of his employment contract. Hamburg also sought attorney fees and expenses of litigation pursuant to OCGA § 13-6-11, alleging that defendants acted in bad faith, have been stubbornly litigious, or have caused him unnecessary trouble and expense. Defendants asserted truth as a defense to Hamburg’s defamation claims and alleged (in the pre-trial order) that they were justified in discharging Hamburg “for cause, gross negligence and/or willful misconduct by virtue of his blatant insubordination, his efforts to funnel money to SEI’s foreign partners under highly suspicious circumstances and other misconduct.” Hamburg’s response was that defendants maliciously and publicly trumped-up charges against him to screen their long-time knowledge of alleged improprieties by SEI’s Portuguese partner, information that may have required SEI’s withdrawal from bidding on the prospectively profitable “Pego Project.” Hamburg claimed (in the pre-trial order) that defendants set him up as a “scapegoat.”

After almost three years of litigation, the case was tried before a jury upon a tangle of conflicting evidence. The jury returned a special verdict, awarding Hamburg $181,000 on his breach of contract claim, $624 in medical expenses and no general damages on his intentional infliction of emotional distress claim, and $543,000 in lost earnings, $2,000,000 in general damages and no punitive damages on his defamation claim. The jury also found Hamburg entitled to attorney fees and expenses of litigation. The trial court conducted a hearing and received evidence on this finding and later entered judgment, awarding Hamburg an aggregate amount of $2,009,689 for attorney fees and expenses of litigation. This appeal is from the denial of defendants’ joint motion for judgment notwithstanding the verdicts (“j.n.o.v.”) as to Hamburg’s defamation, breach of contract and attorney fees and expenses of litigation claims. Held:

1. Defendants challenge the denial of their motion for j.n.o.v. as to Hamburg’s defamation claim, contending the press releases Gale Klappa gave the media were not defamatory, as a matter of law, because neither statement targets a particular individual with regard to the reported ethics investigation. Defendants also assert that the second press release accurately reports that Hamburg was discharged after an investigation of SEI’s “business practices” and that both of the carefully worded statements cannot be enlarged, via innuendo, to convey a derogatory meaning. In support of these assertions, defendants cite Zielinski v. Clorox Co., 215 Ga. App. 97, 99 (2) (450 SE2d 222); Hylton v. American Assn. &c., 214 Ga. App. 635, 638 (3) (448 SE2d 741); Cox Enterprises v. Bakin, 206 Ga. App. 813, 816 (1) (426 SE2d 651), and Armscorp of America v. Daugherty, 191 Ga. App. 19, 20 (380 SE2d 729).

“ ‘To sustain an action for libel, “ ‘the (allegedly) defamatory words must refer to some ascertained or ascertainable person, and that person must be the plaintiff. If the words used really contain no reflection on any particular individual, no averment or innuendo can make them defamatory. An innuendo can not make the person certain which was uncertain before.’ Where the words of the alleged libelous matter are so vague and uncertain that they could not have been intended to refer to any particular person, or the published words are incapable of any other construction other than (that) they are not defamatory of the plaintiff, the petition is subject to (dismissal). (Cits.) ‘A publication claimed to be defamatory must be read and construed in the sense in which the readers to whom it is addressed would ordinarily understand it. So the whole item . . . should be read and construed together, and its meaning and signification thus determined. When thus read, if its meaning is so unambiguous as to reasonably bear but one interpretation, it is for the judge to say whether that signification is defamatory or not. If upon the other hand, it is capable of two meanings, one of which would be libelous and actionable and the other not, it is for the jury to say, under all the circumstances surrounding its publication, including extraneous facts admissible in evidence, which of the two meanings would be attributed to it by those to whom it is addressed or by whom it may be read.’ ” Ledger- Enquirer Co. v. Brown, 214 Ga. 422, 423-424 (105 SE2d 229) (1958).’ Fiske v. Stockton, 171 Ga. App. 601, 602 (1) (320 SE2d 590).” Davis v. Copelan, 215 Ga. App. 754, 763 (1) (452 SE2d 194).

In the case sub judice, we cannot say that the two press releases issued by Gale Klappa on October 3 and 7, 1991, are not defamatory as a matter of law. The first press release states that SETs internal investigation is aimed at determining compliance with SETs ethical standards and that Hamburg has been placed on administrative leave during the investigation. The second press release states that SEI’s internal investigation resulted in Hamburg’s discharge and then quotes defendant “Paul DeNicola, [as] saying, we’re committed to taking decisive actions when our business standards are not met.” Under these circumstances and in light of evidence that Hamburg was not considered for an executive position at another major corporation because of dissemination of the two press releases at issue, we cannot say that defendants’ statements about Hamburg and the internal investigation at SEI (when taken together) do not authorize the jury’s finding that defendants were referring to Jeffrey R. Hamburg and that the press releases did impugn his character and reputation in the business community. Indeed, Gale Klappa’s rejection of Kimberly Dozier’s offer to retract her report that SEI fired Hamburg because of unethical acts reinforces the jury’s finding that defendants intended to publicly censure Hamburg by conveying that he was fired for unethical “business practices.”

2. Defendants further challenge the denial of their motion for j.n.o.v., arguing that Hamburg failed to present evidence refuting their defense that the press releases were true.

The problem with defendants’ contention is that the damaging inference conveyed by the press releases (i.e., that Hamburg unethically pursued a foreign venture on behalf of SEI) is a conclusion which can only be refuted by attacking the factual basis of the accusation. To this extent, Hamburg presented ample evidence that he had no firm reason to believe that his actions in managing the “Pego Project” were improper or were otherwise subject to criticism. Hamburg also offered extensive evidence that SEI’s internal investigation was tainted by clandestine communications, unfounded rumors and careless or deliberate conclusions regarding his knowledge of and participation in a bribery scheme that was allegedly contrived by SEI’s Portuguese partner. Hamburg testified that defendants never told him about any such impropriety, which SEI and Southern undisputedly knew about over six months before Hamburg’s suspension, and this testimony is corroborated by proof that defendants never formally or informally charged Hamburg with any impropriety before his suspension on October 3, 1991. Hamburg testified that the information defendants withheld would have controlled certain promises he extended to SEI’s Portuguese business partner, promises which were the primary focus of SEI’s internal investigation.

“While the truth of the charge made may always be proved in justification, Code Ann. § 105-708 [now OCGA § 51-5-6], nevertheless, truthfulness is a question of fact for the jury. Lester v. Trust Co. of Ga., 144 Ga. App. 526, 528 (241 SE2d 633) (1978).” Hub Motor Co. v. Zurawski, 157 Ga. App. 850, 852 (3) (278 SE2d 689). The conflicting evidence in the case sub judice regarding the truth or falsity of facts underlying defendants’ charge that Hamburg acted unethically in exercising his authority as SEI’s President and Chief Executive Officer was sufficient to create a jury question. “ ‘If there is any evidence to support the verdict, this court, on appeal, will not disturb it.’ Hinson v. O’Quinn, 159 Ga. App. 589 (284 SE2d 97). Our standard of review when presented with a challenge to the verdict on the general grounds was enunciated well in the case of Williams v. Stankowitz, 149 Ga. App. 865, 866 (256 SE2d 147): ‘We will not weigh the evidence, and in fact are precluded from doing so. (Cits.) In the absence of legal error, an appellate court is without jurisdiction to interfere with a verdict supported by some evidence even where the verdict may be against the preponderance of the evidence. (Cit.) We will not speculate as to what evidence the jury chose to believe or disbelieve; on appeal, this court is bound to construe the evidence with every inference and presumption being in favor of upholding the jury’s verdict, and after the verdict is approved by the trial judge, the evidence must be construed so as to uphold the verdict even where there are discrepancies. (Cits.)’ See also Barry v. J. C. Penney Co., 159 Ga. App. 587, 588-589 (284 SE2d 91).” Jeff Goolsby Homes Corp. v. Smith, 168 Ga. App. 218, 219 (1) (308 SE2d 564).

3. Further, it is contended by defendants that the trial court erred in denying their motion for j.n.o.v. with regard to Hamburg’s defamation claim, arguing that there was no evidence to support the jury’s $543,000 award for lost earnings. This enumeration is without merit. “ ‘Statements which tend to injure one in his or her trade, occupation, or business have been held to be libelous per se, and one need not prove special damages in such instances. Walker v. Sheehan, 80 Ga. App. 606, 611 (56 SE2d 628) (1949); Dickey v. Brannon, 118 Ga. App. 33, 35 (162 SE2d 827) (1968).’ Hub Motor Co. v. Zurawski, 157 Ga. App. 850, 852 (3)[, supra].” Stalvey v. Atlanta Business Chronicle, 202 Ga. App. 597, 599 (1), 600 (414 SE2d 898).

The trial court did not err in denying defendants’ motion for j.n.o.v. with regard to Hamburg’s defamation claim.

4. Defendants next contend the trial court erred in denying their motion for j.n.o.v. with regard to Hamburg’s claim for attorney fees and litigation expenses, arguing that there is no evidence to support the jury’s finding that they acted in bad faith, were stubbornly litigious, or caused Hamburg unnecessary trouble and expense. Defendants assert that Hamburg is not entitled to damages under OCGA § 13-6-11 because there was a bona fide controversy over their liability for defamation as well as for breach of Hamburg’s employment contract.

“ ‘A plaintiff may recover for bad faith concerning the transactions and dealings out of which the cause of action arose. OCGA § 13-6-11; (cits.). A bona fide controversy within the contemplation of the code section pertains solely to the issue of stubborn litigiousness or causing the plaintiff unnecessary trouble and expense. Despite the existence of a bona fide controversy as to liability, a jury may find that defendant “acted in the most atrocious bad faith in his dealing with the plaintiff.” (Cits.)’ Fidelity Nat. Bank v. Kneller, 194 Ga. App. 55, 63 (3) (390 SE2d 55) (1989).” Walther v. Multicraft Constr. Co., 205 Ga. App. 815, 816 (2) (423 SE2d 725). And if there is any evidence to support a jury’s finding of bad faith concerning the transactions and dealings out of which the cause of action arose, the award will not be set aside on appeal as the question of liability under OCGA § 13-6-11 is a matter for the jury. Spring Lake Property Owners Assn. v. Peacock, 260 Ga. 80, 81 (390 SE2d 31); R. T. Patterson Funeral Home v. Head, 215 Ga. App. 578, 585 (5) (451 SE2d 812).

Although the evidence supporting Hamburg’s bad faith claims in the case sub judice appears to be mostly circumstantial, we cannot say that absolutely no evidence was presented in support of his claims that SEI acted in bad faith in discharging him without severance pay, in violation of Hamburg’s employment contract, and that defendants acted in bad faith in publishing statements that diminished Hamburg’s character and reputation in the business community. Hamburg’s testimony indicates that, before his discharge from SEI, he enjoyed a reputation for good character and honesty, explaining how he grew from humble roots, worked through the ranks and ultimately achieved recognition and respect as a strong corporate leader. Hamburg’s testimony also reveals that his abilities and good name caused others (including Southern and SEI) to seek him for top leadership positions. Also, that before his discharge from SEI, he received favorable reviews and rewards from SEI for doing his job well. Hamburg asserted, however, that improprieties allegedly precipitated by SEI’s Portuguese partner and made known to defendants in March 1991, caused his fortunes to change. In this vein, Hamburg testified that defendants neither advised him about alleged improprieties that arose at a meeting defendants’ agents had with SEI’s Portuguese partner in March 1991, nor approached him about their suspicions that he may be an accomplice to an alleged bribery scheme that was then contrived by SEI’s Portuguese partner. Further, Hamburg showed that defendants never allowed him to answer to such charges during a clandestine investigation defendants initiated before his suspension on October 3, 1991. More persuasively, however, is Hamburg’s evidence that certain agents of SEI and Southern had interests (conflicts) which may have motivated baseless charges concerning illegal activities by Hamburg and SEI’s Portuguese partner. This evidence (although hotly disputed) is sufficient to authorize the jury’s finding that SEI acted in bad faith in discharging Hamburg without severance pay and that defendants acted in bad faith in issuing negative statements about Hamburg’s character. Moreover, the fact that defendants decided to issue statements to the media indicating that Hamburg is an unethical person, would authorize a finding that defendants recklessly (with wanton disregard for the consequences) published the damaging press releases. To say otherwise, ignores that the defamatory comments at issue are not subject to objective proof, such as “he did this” or “she did that.” But are statements which, when read together, infer a pejorative characterization which, intrinsically, is subject to varying opinions and perspectives.

The trial court did not err in denying defendants’ motion for j.n.o.v. with regard to Hamburg’s claim for attorney fees and expenses of litigation.

5. Defendants contend there was insufficient evidence to support the trial court’s award of $2,009,689 for attorney fees and expenses of litigation. We agree.

“ ‘ “An award of attorney fees is unauthorized if [Hamburg] failed to prove the actual costs of [his attorneys] and the reasonableness of those costs. (Cit.)” Fiat Auto U.S.A. v. Hollums, 185 Ga. App. 113, 116 (5) (363 SE2d 312) (1987).’ Southern Cellular Telecom v. Banks, 209 Ga. App. 401, 402 (433 SE2d 606).” Mitcham v. Blalock, 214 Ga. App. 29, 31 (2) (447 SE2d 83). In the case sub judice, Hamburg offered the testimony of his lead attorney who identified billing and expense summaries, which abstract (according to the witness) relevant billings and expenses generated on behalf of Hamburg. While these summaries record the efforts and expenses of Hamburg’s lead attorney, most of the reported billings and expenses were generated by persons who did not testify at the hearing. Consequently, the billing summaries “constitute nothing more than ‘hearsay, and hearsay, even when admitted into evidence without objection, lacks probative value to establish any fact. Howell Mill/Collier Assoc. v. Pennypacker’s, 194 Ga. App. 169, 171 (2) (390 SE2d 257).’ Mitcham v. Blalock, 214 Ga. App. 29, 31 (2), 32 . . . supra.” Citadel Corp. v. All-South Subcontractors, 217 Ga. App. 736, 737 (1), 738 (458 SE2d 711). Accordingly, to the extent that nonprobative evidence was considered in awarding attorney fees and expenses of litigation, the trial court’s award cannot be sustained. The case “must be reversed in part ‘and the case remanded for an evidentiary hearing to establish the amount of attorney fees attributable to [probative evidence offered at the hearing]. See Southern Cellular Telecom v. Banks, 209 Ga. App. 401, 402, supra.Mitcham v. Blalock, 214 Ga. App. 29, 31 (2), 33[, supra].” R. T. Patterson Funeral Home v. Head, 215 Ga. App. 578, 585 (5), 586, supra. See City of College Park v. Pichon, 217 Ga. App. 53, 55 (4) (456 SE2d 686).

Decided March 15, 1996

Reconsiderations denied March 27, 1996

Jones, Day, Reavis & Pogue, W. Lyman Dillon, David M. Monde, for appellants.

Arnall, Golden & Gregory, Kevin B. Getzendanner, Scott E. Taylor, for appellee.

6. The trial court did not err in denying SEI’s motion for j.n.o.v. with regard to Hamburg’s claim for breach of his employment contract. The employment contract provided for the payment of a specific sum if Hamburg was discharged for any reason other than conduct constituting a crime, gross negligence or wilful misconduct. Hamburg presented evidence refuting SEI’s claim that he was discharged for any of these reasons. See Jeff Goolsby Homes Corp. v. Smith, 168 Ga. App. 218, 219 (1), supra. The jury was therefore authorized in finding that Hamburg was entitled to severance benefits under his employment contract.

Judgment affirmed in part, reversed in part, and remanded with directions.

Andrews and Blackburn, JJ., concur.

       Dozier authored an article conveying the content of this press release in the October 4, 1991, edition of The Energy Daily. The article is captioned, “Internal Review Initiated at SEI,” and states as follows: “Atlanta-based Southern Electric International, a subsidiary of The Southern Co., is under internal review ‘to determine whether the company’s ethical standards have been met,’ Southern Co. spokesman Gale Klappa told The Energy Daily late Thursday. SEI President Jeffrey Hamburg is on administrative leave and is cooperating with the review, Klappa said. J. R. Harris, who recently served as vice president of Southern Co.’s investor relations office in New York, has assumed Hamburg’s administrative responsibilities at SEI, pending the outcome of the evaluation, Klappa added. Klappa was not at liberty to release details on who reported SEI’s questionable business practices, nor whether an outside agency was or would be involved with the review, which is expected to be completed by early next week, he said. SEI is subject to Securities and Exchange Commission review as a subsidiary of its registered holding company and parent. SEI is The Southern Co.’s ‘diversified subsidiary,’ which builds and operates power plants for other utilities in the U.S. and abroad, and provides technical expertise to other utilities, Klappa said. Southern has never broken out SEI’s separate earnings, he added. Hamburg could not be reached for comment.”


author: Andrews, Judge.

text:
    A95A2814.
    ZELLER v. HOME FEDERAL SAVINGS & LOAN ASSOCIATION OF ATLANTA.
    (471 SE2d 1)
   Andrews, Judge.

Paulette Zeller sued Home Federal Savings & Loan Association of Atlanta (“Home Federal”) alleging that Home Federal had wrongfully foreclosed its security deed on her property. Seeking to reverse summary judgment, Zeller enumerates four errors primarily challenging Home Federal’s compliance with the statutory notice requirement of OCGA § 44-14-162.2 (a). For the following reasons, we affirm.

Summary judgment is appropriate when the court, viewing all the facts and evidence and reasonable inferences from those facts in a light most favorable to the non-movant, concludes that the evidence does not create a triable issue as to each essential element of the case. Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991). Viewed in a light most favorable to Zeller, the record shows the following facts. On June 24, 1987, Zeller executed a promissory note in favor of Home Federal together with a security deed securing property located at 4969 Elizabeth Drive, Mableton, Georgia (“property address”). Thereafter, on several occasions during the life of the note, Zeller failed to make the requisite monthly payments and Home Federal sent written notice to Zeller at the property address. In August 1992, Zeller moved to 302 East Eighth Street, Rome, Georgia (“Rome address”). Home Federal continued to send notices of default to the property address based on the bank’s policy of using the property address unless and until a borrower provided a signed letter giving written authorization from the borrower for the use of a different address.

Home Federal’s policy was to send all of its correspondence via certified mail to the property address and to simultaneously send via non-certified mail the same correspondence to any mailing address a borrower provided. Thus, Home Federal sent a blizzard of paperwork to Zeller, both by certified mail and regular mail. Pursuant to its procedures, Home Federal continued to send certified mail to the property address and regular mail to the Rome address which Zeller had given. Home Federal’s correspondence included default letters sent to Zeller in May, July, August, October, November and December 1992 and more breach letters in January, February, March, May, June, and July 1993. In September 1993, Home Federal sent Zeller a foreclosure and acceleration letter via certified mail.

At some point, Zeller called Home Federal and spoke with a loan counselor and informed her that she had moved to Rome. The representative made a written notation on Zeller’s file. Some of Zeller’s payment checks had her Rome address. However, the record fails to show that Zeller ever provided written authorization to Home Federal to use her Rome address or any other address. The loan counselor testified that Zeller never gave her notice that she should correspond with her at the Rome address.

On December 7, 1993, Home Federal conducted a foreclosure sale of the property. On April 5, 1994, following advertising and notice, a second foreclosure sale was conducted and the highest bidder was again Home Federal. It is undisputed that prior to the sale, Home Federal sent written notice pursuant to OCGA § 44-14-162.2 by certified mail to the property address.

Finding Zeller failed to provide any evidence that she gave Home Federal specific written notice informing Home Federal of her Rome address, and finding that Home Federal provided Zeller with proper notice to the property address, the trial court granted summary judgment to Home Federal.

1. Zeller contends that summary judgment must be reversed because Home Federal failed to comply with the statutory notice requirements of OCGA § 44-14-162.2.

Decided February 28, 1996

Reconsideration denied March 27, 1996.

Farless & Newton, Floyd H. Farless, for appellant.

Morris, Schneider & Prior, Larry W. Johnson, for appellee.

OCGA § 44-14-162.2 (a) provides in pertinent part: “Such notice shall be in writing and shall be sent by registered or certified mail, return receipt requested, to the property address or to such other address as the debtor may designate by written notice to the secured creditor.” (Emphasis supplied.)

Zeller argues that Home Federal’s actual knowledge of her Rome address triggered a duty for Home Federal to send the OCGA § 44-14-162.2 (a) notice to her Rome address. We disagree. The plain language of the statute requires that the debtor designate in writing another address to the secured creditor. A telephone call, a notation on a file by an employee of Home Federal, and the receipt of payment by checks with the new address, do not show compliance with the requirement that Zeller designate an address by “written notice.” We find that Zeller’s failure to provide written notice to Home Federal of her Rome address as required by OCGA § 44-14-162.2 (a) defeats her contention that Home Federal was obligated to notify her at the Rome address.

2. Similarly, we are unable to find merit to Zeller’s claim that the trial court erroneously ruled that Home Federal had a choice of where to send notice to Zeller. OCGA § 44-14-162.2 (a) plainly requires the secured creditor send notice to the property address unless the debtor designates in writing another address. As discussed in Division 1, the trial court correctly determined that because Zeller failed to designate another address in writing, Home Federal complied with the statute by its certified mailing of the foreclosure notice to the property address. See McCollum v. Pope, 261 Ga. 835 (411 SE2d 874) (1992) (actual receipt of OCGA § 44-14-162.2 notice of initiation of proceeding to exercise the power of sale in a mortgage, security deed or other lien contract immaterial).

Because Home Federal pierced Zeller’s pleadings and eliminated an essential element of Zeller’s wrongful foreclosure claim, Home Federal was entitled to summary judgment as a matter of law. See Lau’s Corp., 261 Ga. at 491.

3. Based on our discussion in Division 1, Zeller’s other enumerations are rendered moot.

Judgment affirmed.

McMurray, P. J., and Blackburn, J., concur.


author: Beasley, Chief Judge.

text:
    A96A0057.
    DEPARTMENT OF ADMINISTRATIVE SERVICES v. DEAL.
    (470 SE2d 817)
    Decided March 27, 1996

      Michael J. Bowers, Attorney General, William C. Joy, Senior Assistant Attorney General, Teresa E. Lazzaroni, Assistant Attorney General, Webb & Lindsey, Mark D. Oldenburg, for appellant.

      Perry & Walters, R. Kelly Raulerson, Varnell & McKay, Judy H. Varnell, for appellee.
   Beasley, Chief Judge.

The Department of Administrative Services appeals a summary judgment granted to Deal. On September 18, 1993, Deal’s automobile collided with one driven by Barbara Lyles, a DOAS employee acting within the scope of her employment. The Department paid workers’ compensation benefits to Lyles, and this suit seeks recovery of those benefits from Deal pursuant to a prior version of OCGA § 34-9-11.1. Lyles settled her claim against Deal and his liability insurer on April 15, 1993, giving Deal a full release of all claims. At no time prior to July 1994 did DOAS give Deal or his insurer notice of any right of subrogation or right to recover the benefits it paid to Lyles.

As conceded by the Department, this case is identical in its issues to another case which was pending. It has now been decided, and we agree with the panel in that case. Rowland v. Dept. of Admin. Svcs., 219 Ga. App. 899 (466 SE2d 923) (1996).

Summary judgment was properly awarded to defendant Deal.

Judgment affirmed.

Birdsong, P. J., and Blackburn, J., concur.


author: Smith, Judge.

text:
    A96A0429.
    JOHN ALDEN LIFE INSURANCE COMPANY v. GWINNETT PLANTATION, LTD. et al.
    (470 SE2d 482)
   Smith, Judge.

John Alden Life Insurance Company (Alden) foreclosed on certain real property on May 2, 1995. On May 11, 1995, Alden filed a petition for confirmation of foreclosure sale in Gwinnett County Superior Court because there was a deficiency between the amount of the debt and the sale price of the property. The summons attached to the petition was stamped in the clerk of court’s office “Assigned to Judge Winegarden,” and the application recited that Alden was “report[ing] the sale under power to this court within thirty . . . days.” Alden’s counsel stated via affidavit that he personally hand delivered and filed the application with the clerk of court’s office and was told that the application was assigned to Judge Winegarden. Alden took no further action to report the sale to a superior court judge, however. Appellees, against whom the application had been filed, moved to dismiss. The trial court granted the motion, concluding that Alden failed to report the sale to a judge as required by OCGA § 44-14-161, and Alden appeals.

Decided March 27, 1996.

Snellings & Ferguson, Stanley T. Snellings, for appellant.

OCGA § 44-14-161 (a) provides in relevant part that “no action may be taken to obtain a deficiency judgment unless the person instituting the foreclosure proceedings shall, within 30 days after the sale, report the sale to the judge of the superior court of the county in which the land is located for confirmation and approval and shall obtain an order of confirmation and approval thereon.” Alden argues that the assignment by the clerk to Judge Winegarden was tantamount “to reporting the sale to the judge as required by law.”

We disagree. OCGA § 44-14-161 must be strictly construed because it is a statute in derogation of common law. Bentley v. North Ga. Prod. Credit Assn., 170 Ga. App. 361, 362 (1) (317 SE2d 339) (1984). “The judge himself, not the clerk of court, is the one to whose attention the report of sale and its particulars must be brought. [Cits.]” Id. See also Goodman v. Vinson, 142 Ga. App. 420 (236 SE2d 153) (1977); compare Dukes v. Ralston Purina Co., 127 Ga. App. 696 (194 SE2d 630) (1972).

Cornelia Bank v. Brown, 166 Ga. App. 68 (303 SE2d 171) (1983) is distinguishable on its facts. There, the petition for confirmation of sale was presented at the chambers of the superior court judge. The judge was not present, “but his secretary, acting upon authority previously given to her by the judge, affixed the judge’s signature stamp to the order scheduling a hearing on the petition.” Id. at 68. We found that the petitioner technically complied with the statute because the petition was presented “to the office of the superior court judge in the manner authorized by the judge.” Id. at 69.

Here, the petition was not presented by Alden to the office of the superior court judge in any manner whatsoever; Alden even admits that nothing prevented its attorney “from going to Judge Winegarden’s office for the purpose of delivering this application to him personally.” Alden clearly failed to comply with OCGA § 44-14-161. The trial court did not err in dismissing the petition.

Judgment affirmed.

Pope, P. J., and Andrews, J., concur.

Andersen, Davidson & Tate, Thomas T. Tate, for appellees.


text:
    A96A0686.
    KORDARES v. GWINNETT COUNTY et al.
    (470 SE2d 479)
   Smith, Judge.

The trial court wrote an excellent, thorough, complete and correct order in granting appellees’ motion for summary judgment. We adopt the trial court’s order, set out below in full, verbatim, as our opinion in this case.

Order of the Trial Court.

“Plaintiffs allege that Gwinnett County and several of its employees caused the death of James Kordares by negligently designing, constructing, maintaining, repairing and inspecting Briscoe Road Bridge (hereinafter ‘the bridge’). Plaintiffs also assert a nuisance claim.

“According to the deposition of Plaintiffs’ expert, A.O. White, Plaintiffs claim Briscoe Road Bridge was constructed with inadequate footings. As a result, Plaintiffs contend, the bridge partially collapsed and James Kordares was killed when he attempted to cross the bridge. Plaintiffs have apparently abandoned their claims of negligent design and construction. Rather, Plaintiffs claim that the County and its employees failed to perform a subsurface inspection of the bridge, and thus failed to discover the alleged deficiency.

“Plaintiffs do not claim that the County had notice of the deficiency, but instead, contend that the County would have had notice if it had conducted a subsurface inspection. Plaintiffs appear to claim that had the County discovered the deficiency, the County should have replaced the bridge, as the alleged deficiency obviously could not have been corrected by repair or maintenance.

“In their Motion for Summary Judgment, Defendants contend that the negligence claims against the County are barred by Sovereign Immunity. Defendants further assert that Plaintiffs cannot recover from the County for personal injuries and wrongful death on a nuisanee claim. Lastly, Defendants argue that the County employees are immune from individual liability because their actions were discretionary and were performed in their official capacity. After careful consideration of the file, including the pleadings, motions, responses, briefs and exhibits, and after hearing oral argument, the Court finds that Defendants are entitled to judgment as a matter of law on all of Plaintiffs’ claims. The Court therefore grants Defendants’ Motion for Summary Judgment.

“First, the Court finds that the County is immune from negligence liability. The doctrine of sovereign immunity applies to all state department and agencies, including counties, regardless of the purchase of liability insurance. Ga. Const. 1983, art. I, sec. II, para. IX (amended 1990); Gilbert v. Richardson, 264 Ga. 744 [(452 SE2d 476)] (1994) (O.C.G.A. § 33-24-51 provides that a county waives its sovereign immunity to the extent of amount of liability insurance purchased for the negligence of employees arising from the use of a motor vehicle). See also O.C.G.A. § 36-1-4 (‘a county is not liable to any suit for any cause of action unless made so by statute’). The Georgia Constitution further dictates that sovereign immunity ‘can only be waived by an Act of the General Assembly which specifically provides that sovereign immunity is thereby waived and the extent of such waiver’.

“None of the statutes cited by the Plaintiffs waive the County’s immunity as to bridges. Specifically, O.C.G.A. § 32-4-41, enacted in 1973, has never been held to constitute a waiver of the sovereign immunity of counties. That statute states that ‘[t]he County shall plan, designate, improved, manage, control, construct and maintain an adequate county road system . . .’ The statute does not explicitly waive immunity, nor does it indicate that a failure to fulfill a specified ‘duty’ results in liability for personal injuries. Rather, Article 4, ‘State, County and Municipal Road Systems’, of which the statute is part, designates which governmental entity has fiscal responsibility for and power over certain aspects of the road system.

“A number of Georgia cases have held, without specifically addressing O.C.G.A. § 32-4-41, that counties are immune from liability for negligence suits arising on county roads. For example, in Woodard v. Laurens County, 265 Ga. 404 [(456 SE2d 581)] (1995), a driver was injured in an automobile accident when another driver failed to obey a stop sign. The driver sued the county, alleging that the county negligently inspected and maintained the stop sign. The Georgia Supreme Court held that the county was protected by sovereign immunity. Id. See also Department of Transportation v. Price, 208 Ga. App. 320 [(430 SE2d 602)] (1993) (county immunity from liability for injury occurring on county road); Christian v. Monroe County, 203 Ga. App. 342 [(417 SE2d 37)] (1993); Marion v. DeKalb County, 821 F. Supp. 685 (N.D.Ga. 1993).

“Plaintiffs rely on Purvis v. Virgil Barber Contractor, 205 Ga. App. 13 [(421 SE2d 303)] (1992), for the argument that O.C.G.A. § 32-4-41 waives sovereign immunity as to county roads. In Purvis, the plaintiff was injured on a county road and sued the contractor who was paving the road. The Georgia Court of Appeals held that the county, not the contractor, was responsible for roads and construction, pursuant to O.C.G.A. § 32-4-41, and traffic control devices, pursuant to O.C.G.A. § 32-6-50. The county was not a party to the suit.

“Purvis does not support the Plaintiffs’ position here. The Court in Purvis merely stated that the county was responsible for the roads instead of the contractor. The court did not state that the county was liable, nor did it address sovereign immunity.

“Plaintiffs further cite to § 95-1001, a statute that provided county liability for bridges prior to 1973. Although that statute was superseded and replaced in 1973 with O.C.G.A. § 32-4-1 et seq. (State, County and Municipal road Systems), Plaintiffs argue that its intent somehow survived in O.C.G.A. § 32-4-41 (duties of a county). But the Court finds no language in § 32-4-41 indicating that a county is liable for defective bridges, and any waiver of sovereign immunity must be explicit. Ga. Const. 1983, art. I, sec. II, para. IX.

“The Court further finds that O.C.G.A. § 32-4-71 is inapplicable. That statute provides that if a contractor performing bridge work fails to take a performance bond, the county is liable for 7 years for injuries caused by defective bridges. Nevertheless, the statute does not provide county liability where the county itself undertakes the bridge work, as here.

“Accordingly, the Court finds that the County is immune from negligence liability and grants Defendant Gwinnett County’s Motion for Summary Judgment as to the negligence claims.

“Similarly, the County is not liable for nuisance claims arising from personal injuries or wrongful death. Georgia Courts consistently reject these type of nuisance claims against counties. Canfield v. Cook County, 213 Ga. App. 625 [(445 SE2d 375)] (1994); Christian, 213 Ga. App. at 343 (summary judgment granted in favor of county on plaintiff’s nuisance claim arising from collection of water on road surface allegedly resulting in personal injury in automobile); Kitchen v. CSX Transportation, 6 F.3d 727 (11th Cir. 1993); Marion, 821 F.Supp. at 687.

“In Canfield, the plaintiff was injured in a motorcycle accident on a county road. The plaintiff asserted a nuisance claim against the county. The Georgia Court of Appeals, affirming the grant of summary judgment in the county’s favor, held that a county is only liable for a nuisance ‘in the context of a taking of public property for public purposes amounting to an inverse condemnation.’ Id. Thus, this Court finds that Plaintiffs cannot recover pursuant to their nuisance claim and Defendant Gwinnett County is entitled to judgment as a matter of law on this claim.

“Lastly, the Court finds that the individual employees of the County are immune from liability in this action. The Georgia Constitution provides that county employees are immune from suit for discretionary acts performed without malice in their official capacity. Woodard, 265 Ga. at 406; Gilbert v. Richardson, 264 Ga. 744 [(452 SE2d 476)] (1994).

“Here, Plaintiffs do not allege that the employees acted with malice. Rather, Plaintiffs allege that the employees negligently performed a ministerial function.

“ ‘Whether the acts upon which liability is predicated are ministerial or discretionary is determined by the facts of the particular case.’ Woodard, 265 Ga. at 407. The Court finds that the acts of inspection, or failure to properly inspect, and the subsequent alleged failure to replace the bridge, are discretionary in this particular case.

“In Woodard, the plaintiff alleged negligent inspection and maintenance of a stop sign. Id. at 405. The plaintiff claimed that the stop sign had become obscured by tree limbs and that ‘the procedures for discovering and removing such obstructions were inadequate’. Id. at 407. The Georgia Supreme Court found it determinative that there was no contention that the county employees failed to follow established procedures. Id. The court held, ‘[t]he decision on whether to adopt other or additional inspection and maintenance procedures is left to [the employees’] personal judgment and is therefore discretionary and not ministerial’. Id. See also Peele v. Dobbs, 196 Ga. App. 684 [(396 SE2d 600)] (1990) (alleged negligent inspection and approval by county building inspector is discretionary act).

“In the present case, county employees generally inspected county bridges once or twice per year. (Depo. of Kim Conroy at p. 40). However, Plaintiffs fail to assert the existence of any policy or procedure, written or otherwise, dictating the method of the inspection. Plaintiffs do not allege that any County policy or procedure required a subsurface inspection. Nor do the Plaintiffs allege that any of the employees were instructed to perform a subsurface inspection. On the contrary, Defendants’ unrefuted testimony is that there was no law or policy specifying the method or frequency of inspection of bridges like the Briscoe Bridge and that no employee was instructed to conduct a subsurface inspection. (Black Aff., Conroy Aff., and Dempsey Aff.)

“The Court finds that in this case, like in Woodard, there was no procedure or instruction which the individual Defendants failed to follow, and therefore, the acts upon which liability is premised were discretionary. Therefore, the Court grants summary judgment to the individual Defendants on all claims. [Trial court order ends.]”

Decided March 27, 1996

Wall & Noonan, Douglas T. Noonan, James D. Nichols, Jr., for appellant.

Boyce, Ekonomou & Atkinson, John E. Underwood, Sr., Richard A. Carothers, for appellees.

Judgment affirmed.

Pope, P. J., and Andrews, J., concur.

       Plaintiffs do not claim negligent design and construction in their Statement of Material Fact submitted in response to Defendants’ Motion for Summary Judgment. Even if they had, these claims are barred by the 8 year statute of limitations for damages for wrongful death arising from any deficiency in the design or construction of any improvement to real property. O.C.G.A. § 9-3-51. Defendants submitted an uncontroverted affidavit from a longtime resident of the area stating that the bridge was at least 40 years old. Moreover, Plaintiff has cited no evidence that Gwinnett County or any of the individual defendants participated in the design or construction of this bridge.


text:
    A95A1894, A95A1895.
    FRENCH QUARTER, INC. et al. v. PETERSON YOUNG SELF & ASSELIN et al. (two cases).
    (471 SE2d 9)
   Beasley, Chief Judge.

This appeal by clients and guarantors involves whether a verdict and judgment in a suit for attorney fees should be for $641,000 or for half that much, $320,500. The trial itself was only about damages, as the court directed a verdict on liability. There is a second question, which is whether the court properly dismissed the defendants’ counterclaim for failure to attach an affidavit required by OCGA § 9-11-9.1.

The verdict, which was a form submitted to the jury complete except for amounts, dates, and signature, stated: “We, the jury find in favor of Plaintiff Peterson Young Self and Asselin against Defendants Howard Allgood, Shirley Allgood, and French Quarter, Inc., jointly and severally, in the sum of $293,500.00 dollars and against American Demolition, Inc. in the sum of $293,500.00 dollars.

“We, the jury find in favor of Plaintiff Peterson Dillard Young Self and Asselin against Defendants Howard Allgood, Shirley Allgood, and French Quarter, Inc., jointly and severally, in the sum of 27.000. 00 dollars and against American Demolition, Inc. in the sum of 27.000. 00 dollars. This 19 day of August, 1994.”

The jury was dispersed without a request that the jury be polled. In fact, defendants’ counsel announced as to the verdict: “It looks right to me, Your Honor.” The court received and published the verdict, and it was recorded the same day. The court entered the conforming judgment about three weeks later as to some defendants (French Quarter, Inc. and American Demolition of Georgia, Inc.) and almost six months after that against the remaining defendants (Howard and Shirley Allgood) because judgment against them had been stayed pending bankruptcy.

Between the entry of the two judgments, some 28 days after the first judgment was entered, all four defendants moved the court to amend or mold the jury verdict pursuant to OCGA §§ 9-12-5 and 9-12-6, or alternatively to set aside the first judgment pursuant to OCGA § 9-11-60 (d) (2) and (g). The court denied the motion the same month, long before the entry of the second judgment. Defendants French Quarter and American Demolition appealed from the first judgment and from the denial of the motion, within 30 days of an extension order. The trial court had extended the time for filing the notice of appeal until “thirty (30) days from the date of determination of defendants’ post-trial motions,” purportedly in accordance with OCGA § 5-6-39. That Code section allows a maximum extension of 30 days from the date of the order of extension. Notice of appeal from the second judgment and from the order entered prior to trial which dismissed the counterclaim of defendants the Allgoods and American Demolition was filed by the Allgoods within 30 days of entry of judgment against the Allgoods. Thus, the two appeals, such as they are, are timely.

1. Pretermitting the procedural questions and the question of which parties are properly appealing what, the court properly denied the motion. First, the motion sought change in the verdict in a matter of substance (amounts), not mere form, so it was too late to even consider amendment. OCGA § 9-12-7; Force v. McGeachy, 186 Ga. App. 781, 783 (1), 784 (368 SE2d 777) (1988). OCGA §§ 9-12-5 and 9-12-6 are of no assistance to defendants.

Second, none of the bases urged by defendants which the law allows for setting aside a judgment in OCGA § 9-11-60 (d) (2) and (g) has been shown by defendants to be present in this case. Defendants French Quarter and American Demolition are the only two parties who appealed the denial of the motion. Their brief argument in their second enumeration seems to be that the court misunderstood the verdict, so that the judgment was based upon “mistake,” as provided for in OCGA § 9-11-60 (d) (2). It is evident from a plain reading of the verdict that the judgment accurately reflected the expressed intention of the jury, which it must. See OCGA § 9-12-9. Defendants do not argue that it constituted a “clerical mistake” under OCGA § 9-11-60 (g), the other subsection cited in the motion.

2. The first and third enumerations of error contend that in the two judgments, the trial court erred in adding together the liabilities of the principal and the guarantors so that there was a double recovery for the same debts. The pleadings, the evidence, the admission of liability which preceded the directed verdict on that aspect of the case, and the jury verdict all speak against this argument and conclusively discredit it. All of the defendants were liable guarantors of the fees incurred by each other as principals, see OCGA § 10-7-1, and each was a liable principal for the fees incurred when that person or entity was a client. French Quarter was the only party which was solely a guarantor, and it was a guarantor of American Demolition and the Allgoods; the verdict and judgment reflected that distinction. Neither the plaintiff law firms nor the jury nor the judge added together the liabilities of principals and guarantors; the defendant client/principals and guarantors, all of whom except French Quarter had dual roles in that they were sometimes client/principals and sometimes guarantors, were not charged twice for the same debt. The jury, in fact, did not award the entire amount claimed by plaintiffs.

3. Two years before the trial, the court on plaintiffs’ motion dismissed defendants’ counterclaim for failure to attach an expert affidavit pursuant to OCGA § 9-11-9.1. The counterclaim alleged that plaintiffs’ negligent misrepresentations and breach of contract as to legal services proximately caused damages of $2 million, which defendants sought to recover.

On appeal, defendants assert that this was error because the court’s order could be construed to preclude the defense of failure of consideration as to the plaintiffs’ fee claims. Yet, at the same time, defendants admit that “[t]he trial judge permitted defendants to offer evidence of failure of consideration and instructed the jury accordingly.” The enumeration is patently specious. Even if the court were wrong, no harm resulted.

The trial court’s order, which explains the role reversal and consequent burden reversal which attends counterclaims, is totally correct. The affidavit was clearly required. Hardman v. Knight, 203 Ga. App. 519 (417 SE2d 338) (1992); Richmond Leasing Co. v. Cooper, Cooper, Maioriello & Stalnaker, 207 Ga. App. 623 (1) (428 SE2d 603) (1993); Barr v. Johnson, 189 Ga. App. 136 (375 SE2d 51) (1988). Defendants argue their counterclaim merely reincorporates their defenses of setoff and recoupment, and that as “defenses” rather than “claims” they are not subject to the statutory affidavit requirement. “Contrary to defendant’s contention, setoff and recoupment are counterclaims and not defenses.” Swim Dixie Pool Corp. v. Kraemer, 157 Ga. App. 748 (1) (278 SE2d 448) (1981). See Gwinnett Commercial Bank v. Flake, 151 Ga. App. 578, 579 (1) (260 SE2d 523) (1979). In the instant case it is even more obvious, as the allegations and prayer for relief were presented by defendants in an express counterclaim and not merely in their answer.

4. Upon full consideration, we find that the appeal is frivolous. In accordance with Court of Appeals Rule 15 (b), we impose a penalty of $1,000 against the appellants and their counsel, jointly and severally in each case, which amount shall be added to the judgments by the trial court upon remittitur.

Judgment affirmed.

Pope, P. J., and Ruffin, J., concur.

Decided March 12, 1996

Reconsideration denied March 28, 1996

Jack M. Bernard, for appellants.

Peterson, Dillard, Young, Asselin & Powell, Malcolm D. Young, Jr., David J. Larson, for appellees.


text:
    A95A1948.
    BUNCH v. MATHIESON DRIVE APARTMENTS, INC.
    (470 SE2d 895)
   Smith, Judge.

After a fire began near the gas oven in Starlyn Pettis’s apartment, she died from smoke inhalation. Sandra Bunch, Pettis’s mother, brought this action for the wrongful death of Pettis and to recover funeral expenses. She alleged that Mathieson Drive Apartments, Inc. (Mathieson) negligently failed to furnish the apartment with a smoke detector and that this alleged negligence was the proximate cause of Pettis’s death.

The case was tried to a jury. Evidence was presented that on the night of Pettis’s death she smoked marijuana and consumed a large amount of alcohol. Two blood alcohol analyses were performed after her death, one revealing a .27 blood alcohol concentration, and one revealing a .30 blood alcohol concentration. Expert testimony established that these levels were such that the average person would be “almost anesthetized” or would “pass out.” Investigation revealed that the gas range was turned on and that the wooden cabinet around it ignited. A box of frozen lasagna was discovered on one of the counters in the kitchen. The fire investigator opined that Pettis had attempted to leave the burning apartment but was overcome by smoke and passed out. He stated that no smoke detector was installed in the apartment when the fire occurred. The owner of the apartment building testified, however, that a smoke detector had been installed in the kitchen prior to the fire. Moreover, the inspector acknowledged that he found a smoke detector in a plastic bag in a closet, and a previous tenant testified a smoke detector existed in the apartment when she lived there.

The evidence showed that prior to the fire in which Pettis died, a “near” fire occurred in her apartment. Upon learning that smoke was billowing out of the apartment, the owner attempted to enter the locked apartment by striking and kicking the door. Unable to break down the door, he returned with a pass key to find smoke coming from a pot on the stove and Pettis asleep on the sofa. She remained asleep until after the fire was extinguished. He testified that the smoke detector originally installed in the apartment was missing and that its place was covered by a decorative basket. When he returned a short time later to install another smoke detector, Pettis would not allow him to enter the apartment. Some evidence was presented that Pettis complained about the smoke detector going off when she was cooking. An air conditioning repairman testified that he had observed the smoke detector, but in “late September just before the fire” it was missing, and that Pettis told him she had removed it.

Evidence was also presented that Pettis often consumed large amounts of alcohol, that she often smoked marijuana and used other drugs, and that her abuse of alcohol affected her work performance as a receptionist at a dance school. Her work records indicated that during the five years she worked there, she was late to work fifty-four times and absent for eighty days. She quit her job of five years without notice when a “no-smoking” policy was implemented at the dance studio where she worked. Some evidence was presented that she admitted to an alcohol problem. Her former employer testified that Pettis was “very depréssed” when she drank alcohol and that she felt unloved by her mother. Some evidence also indicated that Pettis had financial problems.

The verdict form provided to the jury was in the following format: “I. We the jury find for the plaintiff in the amounts that follows [sic]: (a) Wrongful death__(b) Funeral expenses --OR II. We the jury find for the defendant. [ ] Check box if applicable.” The jury returned a verdict with the word “zero” written in the blank next to wrongful death and with “100%, $7,050.00” written in the blank next to funeral expenses. The box to be checked if the jury found for the defendant was left blank.

Bunch moved for a mistrial, and later for a new trial, on the ground that a finding of entitlement to funeral expenses combined with a finding of zero value for the wrongful death of Pettis was inconsistent. In denying Bunch’s motions, the trial court acknowledged that the verdict appeared to be inconsistent but nevertheless found that the jury could have “utilized the concept of comparative negligence in arriving at a determination of liability.” Also, according to the trial court, the evidence presented authorized the jury to find that Pettis placed no value on her own life. The court stated that the evidence of excessive alcohol consumption and evidence that a prior fire had occurred in her apartment authorized the jury to find that Pettis’s life was worth nothing to her. The trial court agreed that “from a moral standpoint ... all life . . . has value.” Nonetheless, it found that “there exists [sic] in our range of human experiences situations we can readily identify where . . . human beings . . . place no value on their own life; they commit suicide.” Bunch appeals the denial of her motion for new trial.

1. Whether to grant or deny a new trial on the grounds asserted by Bunch was within the “sound legal discretion” of the trial court. OCGA § 5-5-25. Although we recognize the deference that must be given to a trial court’s denial of a motion for new trial, because the verdict was inherently inconsistent and ambiguous, we conclude that the trial court abused its discretion in upholding the verdict and denying Bunch’s motion for new trial.

Jordan v. Ellis, 148 Ga. App. 286 (250 SE2d 859) (1978) provides some guidance in our analysis. Following their son’s death in an automobile accident, Mr. and Mrs. Jordan filed separate suits. Mr. Jordan sued for funeral and other expenses, and Mrs. Jordan sued for wrongful death. Id. The suits were consolidated and were tried to the same jury. The jury found against both defendants involved in the litigation. Mr. Jordan obtained a full recovery of the expenses sought, while Mrs. Jordan obtained recovery of only a fraction of the full value of her son’s life as shown by the evidence. Id.

Mrs. Jordan, but not Mr. Jordan, appealed, contending the verdicts were “inconsistent, illogical, inadequate, and illegal.” (Punctuation omitted.) Id. Based on the pleadings, the evidence, and the court’s charge, this Court found that “the jury applied different rules of law to the amount of damages which were recoverable.” Id. at 289. We concluded the only reasonable deduction from the jury’s award of full recovery to Mr. Jordan was that the jury, in his case, found no negligence on the part of his deceased son. Id. We also concluded, however, that comparative negligence principles were applied by the jury in determining the amount of damages for Mrs. Jordan’s claim for the loss of that son’s life. Id. We found these verdicts to be inconsistent, with Mrs. Jordan’s verdict based on a correct legal theory, and Mr. Jordan’s verdict based on an incorrect theory. Id. at 291. Because Mr. Jordan did not appeal, however, we did not reverse. We stated, “As both [parties] are not before us we cannot place all parties back where they started.” Id.

Here, Bunch, acting both as administrator and individually, appeals the verdict. All parties who were before the trial court are before us. In this case, as in Jordan, and as acknowledged by the trial court, the verdict is inconsistent. It is subject to conflicting interpretations. The verdict indicates, at least to some extent, the jury’s finding that Mathieson was liable, because the box to be checked if the jury found for Mathieson was left blank. It also seems to reflect, as in Jordan, that the jury applied comparative negligence principles in reaching its verdict on Bunch’s claim for the value of Pettis’s life.

Comparative negligence principles, however, do not resolve the facial inconsistencies. If a jury finds the plaintiff less negligent than the defendant, it may find for the plaintiff but may reduce the plaintiff’s damages in proportion to his negligence. “Where the evidence authorizes the jury to find that both parties are at fault, but the defendant slightly more so, so as to give the plaintiff a cause of action, a verdict for a small amount of damages is proper and should not be disturbed.” (Citations and punctuation omitted; emphasis supplied.) Waggoner v. Bevich, 127 Ga. App. 877, 879 (2), 880 (195 SE2d 246) (1973). The explicit award for 100 percent of funeral expenses indicates a finding that Pettis was not negligent, because the funeral expenses were not reduced by any amount. The zero damages award on the wrongful death claim, however, seems to indicate that the jury found Pettis to be equally negligent or more negligent than Mathieson. If this were the case, Mathieson should have been found not liable, and no damages should have been awarded. The amounts of the two damage awards to Bunch and the finding of liability against Mathieson are contradictory and irreconcilable.

We recognize that if possible, even ambiguous verdicts should be upheld. See, e.g., Harrison v. Martin, 213 Ga. App. 337, 340 (1), 344 (444 SE2d 618) (1994). This verdict, however, is inexplicable, and we find it impossible to uphold. The trial court should not have entered judgment on the verdict. “A contradictory verdict is repugnant and void; no valid judgment can be entered thereon.” Lynas v. Williams, 216 Ga. App. 434, 438 (454 SE2d 570) (1995). See also LDS Social Svcs. Corp. v. Richins, 191 Ga. App. 695, 698-699 (382 SE2d 607) (1989). The verdict was “too uncertain to be the basis of a valid judgment. It is the duty of a trial judge not to receive an indefinite, imperfect or ambiguous verdict.” (Citations and punctuation omitted.) Zurich American Ins. Co. v. Bruce, 193 Ga. App. 804 (1), 805 (388 SE2d 923) (1989). “Whenever a verdict is ambiguous and uncertain in its meaning ... , it is proper to have the jury retire again for the purpose of rendering another verdict, under proper instructions from the court. It is better to do this than to receive the verdict, which would probably have to be set aside on motion for a new trial, resulting in the expense and trouble of another trial.” (Citations and punctuation omitted.) Colley v. Dillon, 158 Ga. App. 416, 417-418 (280 SE2d 425) (1981).

The trial court attempted to reconcile the contradictory verdicts by speculating as to the jury’s intent in reaching its verdict, but it did not give the jury proper instructions or provide a less ambiguous verdict form. The trial court surmised that some people, as evidenced by their own lifestyles, may place little or no value on their own lives, and it further observed that comparative negligence principles may have been involved in the case; the court then simply entered judgment on the verdict. The trial court’s observation that the jury could have based its wrongful death verdict on comparative negligence principles was apt; the record is replete with evidence of Pettis’s own, perhaps even gross, disregard for her own well-being. We, too, have speculated that the jury reached inconsistent verdicts on the funeral expenses and wrongful death claims based on comparative negligence principles. These speculations, though, do not change the fact that the verdict is inexplicable, and they do not change the law that abhors ambiguous, uncertain verdicts. See Lynas, supra; Zurich American, supra. The trial court should have refused entry of judgment on such a verdict.

Finally, we could also attempt to reconcile the verdict by speculating that the jury found Mathieson liable yet determined that Pettis placed no value on her own life. Such a speculation does not salvage this verdict. We agree with the Minnesota Court of Appeals that “it is difficult to visualize a case where a human being does not have some monetary value in addition to special damages incurred by next of kin. . . . This is the presumption that must be overcome; it is a rare life that is monetarily worthless.” (Citations and punctuation omitted.) Ferguson v. Orr, 427 NW2d 732, 735 (Minn. App. 1988). As here, the jury in Ferguson found liability on the part of the defendant yet awarded zero damages. We make no ruling here as to the value of Pettis’s life; such a finding (thankfully) is inherently one for the jury. The presumption that a worthless life is rare simply cannot be overcome by a verdict as ambiguous and inconsistent as that here. The trial court abused its discretion in entering judgment on the verdict and denying Bunch’s motion for new trial, and we must reverse.

2. Bunch insists that the appropriate remedy is reversal for new trial on damages only. We disagree. While the jury did not expressly find for and impliedly found against Mathieson, the verdict, as discussed in the whole of Division 1, was ambiguous and inconsistent. On one hand, if comparative negligence principles were applied, as found by the trial court, the zero verdict for wrongful death implies that Pettis was equally negligent or more negligent than Mathieson. In such a circumstance, no damages at all should have been awarded, and the award of funeral expenses reflects a “sympathy” verdict for Bunch. On the other hand, though, the simple fact is that the jury did not specifically find for Mathieson. Because the verdict was ambiguous and contradictory, liability was not conclusively established. This case is therefore remanded for new trial on the issues of liability and damages.

Judgment reversed.

Birdsong, P. J., and Johnson, J., concur.

On Motion for Reconsideration.

1. Mathieson contends that in Division 1, this Court has improperly distinguished Jordan v. Ellis, 148 Ga. App. 286 (250 SE2d 859) (1978), erroneously finding that Bunch appealed both as administrator and individually. Bunch has appealed only in her individual capacity, as the mother of Starlyn Pettis, but this difference does not warrant a different holding.

The issue of whether Bunch appealed the jury’s verdict individually or in her capacity as administrator is irrelevant to our analysis of Jordan. In Jordan, two separate civil actions were brought by two different individuals: an action for wrongful death by the child’s mother and an action for funeral and other expenses by the father. The two actions were consolidated for trial, the jury delivered separate verdicts in the two actions, and the mother alone appealed only the wrongful death action. 148 Ga. App. at 286. We were unable to review the claims of a party to a case when neither the party nor the case was before us. Id. at 291.

In contrast, Bunch’s claims were made in the form of a single action both below and in this Court, and the jury rendered a single verdict. Bunch understandably did not appeal issues on which she prevailed, but she, the verdict, and the action in its entirety are before this Court. See generally Waldroup v. Greene County Hosp. Auth., 265 Ga. 864, 865 (1), 866 (463 SE2d 5) (1995).

More importantly, the verdict here, unlike that in Jordan, makes it impossible to determine the jury’s intent. The Jordan jury awarded a reduced amount of damages that could be attributed only to an improper application of comparative negligence principles. The jury here rendered an ambiguous, inconsistent, and consequently inexplicable verdict. It is impossible to determine what legal principles the jury applied to Bunch’s claims. We can speculate, as did the trial court, as to the jury’s intent. Such speculation, however, cannot overcome the presumption that it is a rare life that has no value. See Ferguson v. Orr, 427 NW2d 732 (Minn. App. 1988). The verdict cannot be upheld.

Decided March 12, 1996

Reconsideration denied March 28, 1996

Gambrell & Stolz, Irwin W. Stolz, Jr., Charles N. Bowen, Seaton D. Purdom, Gary A. Barnes, for appellant.

Swift, Currie, McGhee & Hiers, Stephen L. Cotter, Dennis A. Brown, for appellee.

2. Mathieson also contends that our holding ignores the principle that a finding as to the value of one’s life is for the jury. Our opinion recognizes that principle and acknowledges that the trial court aptly observed the presence of comparative negligence on the part of Pettis. The verdict, however, is ambiguous and does not clearly reflect an intent to find that Pettis placed no value on her own life.

3. Finally, Mathieson contends that we overlooked Palo v. Meisenheimer, 199 Ga. App. 24 (403 SE2d 881) (1991). The issue in Palo involved the inadequacy of damages, not the inconsistency of a verdict. Our ruling in this case is not that the award of zero damages is adequate or inadequate but simply that the verdict is inexplicably inconsistent and ambiguous and therefore cannot be upheld.

Motion for reconsideration denied.

       Bunch also sued Maytag Corporation, the manufacturer of the oven, the individuals who installed the oven, and Mathieson Drive Apartments, Inc. in prior actions. Summary judgment or partial summary judgment was granted to all defendants. We consolidated the appeals from these judgments in Bunch v. Maytag Corp., 211 Ga. App. 546 (439 SE2d 676) (1993). Originally, Bunch claimed that Mathieson negligently installed and maintained the gas oven and also failed to furnish the apartment with a smoke alarm. The trial court granted partial summary judgment to Mathieson, finding that no evidence showed that an act or omission by Mathieson in the maintenance and installation of the oven was the proximate cause of the fire. We affirmed, finding that Bunch failed to show that Mathieson had been negligent and also that her contention against Mathieson was abandoned pursuant to Court of Appeals Rule 15 (c) (2) (now Rule 27 (c) (2)). 211 Ga. App. at 549. Thus, the only claim remaining against Mathieson concerned the alleged negligent failure to provide a smoke detector.

        Ferguson does not, as contended by Mathieson, state that an award of zero damages is proper if an estrangement existed between the decedent and an heir. Instead that case states, “[I]f it is shown that there was an estrangement between the decedent and an heir, the jury is free to reflect that in the award.” 427 NW2d at 735.


author: Pope, Presiding Judge.

text:
    A95A1989.
    In the Interest of R. E. W., a child.
    (471 SE2d 6)
   Pope, Presiding Judge.

Appellant-father and appellee-mother were divorced in November 1988. Pursuant to the agreement of the parties, custody of their three-year-old daughter was awarded to the mother and the father was allowed only supervised visitation in his mother’s home. In November 1993, five years after the parties’ divorce, the father filed the present complaint seeking to expand his visitation privileges to include, inter alia, unsupervised visitation. The superior court referred the matter to the juvenile court pursuant to OCGA § 15-11-5 (c). Following a hearing, the juvenile court entered an order extending the weekend visitation period, but refused to allow unsupervised visitation or specific periods of holiday and summer visitation. We granted the father’s application for discretionary appeal, and the father timely filed his notice of appeal to this Court. We now reverse the order of the juvenile court.

The record shows that for the four years preceding the hearing the father has been engaged in a monogamous homosexual relationship, and that he and his partner own a three bedroom, two bath home in Yorktown, Virginia, where the father is the manager of a funeral home. The father testified that he does not believe that his daughter’s best interests would be served by informing her of the sexual nature of his relationship with his partner, and that he would actively conceal the sexual aspects of their relationship and the fact of his homosexuality from her. The father also testified that he and his partner each have their own bedroom, and that few people know they have a sexual relationship.

The father also testified about his love for his daughter and his belief that their relationship would be fostered by unsupervised visitation which would allow them to participate in activities outside his mother’s home, such as going to amusement parks and taking trips together. The father also testified that he attends church in Virginia, and that he and his daughter would attend church together when she visited. The evidence shows that the father sends his daughter cards and presents for occasions (and sometimes for no reason) and that he tries to visit his daughter on her birthday and at Christmas. The father testified that although he usually does not spend Easter with his daughter, he has always mailed to her a hand-made Easter basket.

The father’s mother testified that she has visited her son in his home on several occasions, and that she had never observed anything that would indicate that he and his partner have a sexual relationship. The mother testified that she did not learn of her son’s homosexuality until the initiation of the present proceedings, and that even though she now knows the nature of her son’s relationship with his partner, she has never observed any displays of affection between them or anything to indicate they are more than just friends.

Visitation rights of non-custodial parents are subject to review and modification upon the motion of either parent every two years without the necessity of showing a material change in circumstances. OCGA §§ 19-9-1 (b) and 19-9-3 (b). The standard to be applied in deciding visitation rights is the best interests of the child. Further, it is the express policy of this state to encourage contact between a child and the non-custodial divorced parent. OCGA § 19-9-3 (d). “Although the trial court is vested with discretion in these matters which will not be disturbed absent abuse, we can affirm the trial court only if there is reasonable evidence to support the decision.” Lightfoot v. Lightfoot, 210 Ga. App. 400, 403 (3) (436 SE2d 700) (1993).

The juvenile court premised its denial of the father’s request for unsupervised visitation on the finding that the father was engaged in an “immoral” homosexual relationship, and that the father could not be “trusted to . . . see that his relationship does not occur in such a manner as to come to the attention of the child.” The juvenile court found the father to be untrustworthy because, prior to the divorce, he had been discovered by the mother with another man in the marital bedroom. The court also found that the father had “followed” his present partner to Virginia, and that the father was concerned primarily with his own wishes and desires.

We agree with the father that the juvenile court erred in concluding that the pre-divorce incident cited above shows that the father cannot presently be trusted to keep his word that, while in his care, his daughter will not be exposed to sexual conduct of any nature regardless of the gender of the participants. See Mink v. Mink, 195 Ga. App. 760 (395 SE2d 237) (1990) (physical precedent only). Moreover, our review of the record discloses no competent evidence to cast doubt on the father’s testimony that he believes it in his daughter’s best interests to conceal the sexual nature of his relationship with his partner, and that he intends to act accordingly. Accord In re Marriage of Walsh, 451 NW2d 492, 493 (Iowa 1990). The juvenile court thus erred in reaching the opposite conclusion.

As the father points out, the juvenile court also went to great lengths to define the father’s lifestyle as immoral and illegal, and noted that it had “regularly disallowed contact of people who are living in immoral relationships whether it was heterosexual or homosexual.” We agree with the juvenile court that in some instances a parent’s “immoral conduct” might warrant limitations on the contact between parent and child; but only if it is shown that the child is exposed to the parent’s undesirable conduct in such a way that it has or would likely adversely affect the child. See Hayes v. Hayes, 199 Ga. App. 132 (404 SE2d 276) (1991) (in which the court noted that both parents were engaged in meretricious relationships, but that there was no evidence that either party committed sexual acts in the child’s presence). In this regard, we agree with those courts from other jurisdictions that have held that the primary consideration in determining custody and visitation issues is not the sexual mores or behavior of the parent, but whether the child will somehow be harmed by the conduct of the parent. “Visitation rights must be determined with reference to the needs of the child rather than the sexual preferences of the parent. The best interests of the child remain paramount.” In the Matter of Marriage of Cabalquinto, 669 P2d 886, 888 (Wash. 1983). See also Birdsall v. Birdsall, 243 Cal. Rptr. 287, 290 (Cal. App. 1988) (affirmative showing of harm or likely harm to the child is necessary in order to restrict parental visitation); In the Matter of Marriage of Ashling, 599 P2d 475, 476 (Or. Ct. App. 1979) (restrictions not warranted as long as lesbian mother’s sexual practices remain discreet, “a requirement whatever the sexual preferences of the parties might be”); Brinkley v. Brinkley, 336 SE2d 901, 902 (Va. Ct. App. 1985) (extent to which child is exposed to an “illicit” relationship must be given careful consideration). “Too long have courts labored under the notion that divorced parents must somehow be perfect in every respect. The law should recognize that parents, married or not, are individual human beings each with his or her own particular virtues and vices. ... In domestic relations cases the courts should recognize that all parents have faults, and look not to the faults of the parents, but to the needs of the child.” Conkel v. Conkel, 509 NE2d 983, 985-986 (Ohio Ct. App. 1987).

Decided March 7, 1996

Reconsideration denied March 28, 1996

Raymond & Dalton, Philip T. Raymond III, Susan L. Dalton, for appellant.

Raymond M. Kelley, Jr., for appellee.

Based on the evidence of record in this case, we find absolutely no basis for the juvenile court’s conclusion that continued restricted visitation is in the best interests of the child. Indeed we agree with the father that continued restricted visitation will probably raise more questions than the alternative in the mind of this very bright child who will undoubtedly begin to question the restricted nature of her relationship with her father. Accordingly, the juvenile court is directed on remand to award the father customary unsupervised weekend, holiday and summer visitation, with whatever reasonable restrictions are necessary to ensure the best interests of the child. Specifically, the juvenile court is authorized to consider the possible detrimental effect on the child of frequent out-of-state travel, including the possibility of interference with school and other activities, and fashion the visitation accordingly. See Katz v. Katz, 264 Ga. 440 (445 SE2d 531) (1994).

Judgment reversed and case remanded with direction.

Beasley, C. J., and Ruffin, J., concur.