text:
    A01A2056.
    MUSE v. TREADAWAY et al.
    (561 SE2d 481)
   Pope, Presiding Judge.

In this case we are presented with the question of whether the guardian of the person of an incapacitated adult may file suit seeking to set aside deeds executed by the ward while he was allegedly incapacitated, or whether the suit should properly be filed by the ward’s guardian of property. This issue appears to be one of first impression in this state. We conclude, based upon our review of the applicable law, that the guardian of the property, and not the guardian of the person, has the proper standing to file such a complaint.

G. L. Treadaway, a 93-year-old man, was declared incompetent on September 22, 2000. His daughter, Juanita Muse, was appointed the guardian of his person on December 8, 2000. On December 18, 2000, attorney Rex W. Garner was appointed the guardian of Tread-away’s property. Muse filed suit on December 29, 2000, seeking to set aside on the grounds of incapacity, fraud and undue influence three deeds executed by her father on July 7, 2000, prior to the declaration of incompetency. Garner filed his own lawsuit to set aside the deeds on January 16, 2001.

In response to Muse’s lawsuit, the defendants, Jerry Lee Treadaway, Gwendolyn Joann Meadows and Gloria Irene Treadaway Hunt, asserted that Muse has no standing to seek to set aside the deeds. Rather, they assert that Gamer, as guardian of the property, is the true party in interest. The defendants deny the allegations of wrongdoing asserted in both lawsuits.

Muse filed a motion to strike the defendants’ standing defense. In that motion, Muse asserted that she has standing under OCGA § 29-5-3 (b) (6) and that Garner’s action is subject to abatement as it was the same as her action. After a hearing, the trial court denied the motion and dismissed Muse’s complaint, concluding that the guardian of the person was not the proper party to bring the lawsuit.

1. Under Georgia law, a judge of the probate court may appoint a guardian of the person or a guardian of the property, or both, for an incapacitated adult. OCGA § 29-5-1 (a). The appointment of a guardian of the person is appropriate to the extent that incapacitated adults “lack sufficient understanding or capacity to make significant responsible decisions concerning their persons or to the extent that they are incapable of communicating them.” OCGA § 29-5-1 (a) (1). The probate court may appoint a guardian of the property to the extent that the incapacitated adult is incapable of managing his estate and to the extent “that the appointment is necessary either because the property will be wasted or dissipated unless proper management is provided or because the property is needed for the support, care, or well-being of such adultf ].” OCGA § 29-5-1 (a) (2).

Each guardian’s range of responsibilities and duties corresponds to these respective areas of incapacity. OCGA §§ 29-5-3; 29-5-4. Therefore, the guardian of the person is granted custody of the ward and is charged, inter alia, with maintaining the individual rights and dignity of the ward and with making arrangements for the ward’s “support, care, well-being and appropriate habilitation, training, and education.” OCGA § 29-5-3 (b) (1), (2), (3). The only property for which the guardian of the person has any responsibility is the “clothing, furniture, vehicles, and other personal effects of the ward which are with the ward,” and the guardian is charged only with taking “reasonable care” of such items. OCGA § 29-5-3 (b) (5).

The guardian of the property, in contrast, is granted extensive powers over the ward’s property subject to approval from the probate court. The guardian may sell, lease, encumber, exchange or otherwise dispose of the ward’s real or personal property. OCGA §§ 29-2-3; 29-2-4; 29-2-7; 29-5-4. He or she can make repairs or improvements to the ward’s property or can run a farm or business owned by the ward in his stead. OCGA §§ 29-2-11; 29-2-12. The guardian of the property may even make investments in land on behalf of his ward. OCGA § 29-2-14. These powers are, of course, governed by the ward’s right “to have his property utilized to provide adequately for his support, care, education, and well-being.” OCGA § 29-5-7 (g) (3).

Although nothing in the Georgia Code explicitly authorizes the guardian of the property to file suit to set aside a deed, the Supreme Court of Georgia has recognized that such a guardian “certainly has standing to bring suit to set aside a deed on the ground that the deed was executed by the guardian’s ward while the ward was incompetent.” Loftis v. Johnson, 249 Ga. 794, 795 (294 SE2d 511) (1982) (plaintiff co-guardian of property). Accordingly, it is clear that Garner, as guardian of the property, had standing to bring his complaint.

No such clear authority exists, however, to support Muse’s standing to assert her lawsuit. As guardian of the person, Muse is granted no power over and is charged with no responsibility for Treadaway’s real property. Rather, her powers are the same as that of a parent over his child. OCGA § 29-2-1. Parents are considered the natural guardians of their children. OCGA § 29-4-2 (a). And a natural guardian has no power to demand or receive the property of his child until the natural guardian becomes the legally qualified guardian of the child’s property. OCGA § 29-4-2 (b). Here, Garner, and not Muse, is the legally qualified guardian of Treadaway’s property. Because Muse stands in the shoes only of a natural guardian with regard to Treadaway’s property, she “may not act as a representative of his . . . property interests.” Lynn v. Wagstaff Motor Co., 126 Ga. App. 516, 518 (191 SE2d 324) (1972).

Decided March 8, 2002

Jones & Ledbetter, Howard W. Jones, for appellant.

Bailey & Govignon, William P. Bailey, George P. Govignon, for appellees.

Muse points, however, to OCGA § 29-5-3 (b) (6), which states that a guardian of the person “[m]ay participate in such legal proceedings, in the name of the ward, as are appropriate for the support, care, education, or well-being of the ward.” She asserts that this provision gives her standing to assert her claim because Treadaway depends upon rental income from the property for his support. Although this provision may allow Muse to participate in a lawsuit where appropriate to perform her duties to her ward, we find nothing in the language of this provision to confer standing upon her to initiate a lawsuit over property as to which she has no power, rights or obligations. Rather, Garner, as guardian of the property, has the obligation to ensure that Treadaway’s property is properly utilized for his “support, care, education, and well-being,” OCGA § 29-5-7 (g) (3), and he has the standing to protect Treadaway’s interests in this matter.

Accordingly, we find that the trial court properly dismissed Muse’s complaint.

2. Muse’s remaining enumeration of error is rendered moot by our holding above.

Judgment affirmed.

Blackburn, C. J., and Mikell, J., concur.

       “The power of a guardian over the person of his ward shall be the same as that of the parent over his child, the guardian standing in the place of the parent. In like manner it shall be the duty of a guardian to protect and maintain and, according to the circumstances of the ward, to educate him.” OCGA § 29-2-1.

       Although this requirement may not apply where a child’s property is worth less than $10,000, OCGA § 29-4-2 (b), it was asserted here that Treadaway’s property is valued in excess of $800,000 to $1 million.


source: Caselaw Access Project

author: Miller, Judge.

license: Public Domain

text:
    A01A2240.
    HOSPITAL CORPORATION OF LANIER, INC. v. DOSTER et al.
    (561 SE2d 846)
   Miller, Judge.

Hospital Corporation of Lanier, Inc. admitted to giving E. B. Wallis an overdose of the drug Demerol during his visit to its hospital. A jury trial to determine causation and damages resulted in a verdict of $863,180 for Wallis. On appeal Lanier complains of eviden-tiary rulings allowing in evidence of its financial condition, evidence of settlement negotiations, and cumulative evidence of liability. We find that no evidence of the corporation’s financial condition or of settlement negotiations was admitted at trial. We further find that the court did not abuse its discretion in allowing a limited amount of evidence of liability to be considered by the jury, as such helped show causation. Accordingly, we affirm.

An appellate court is required to construe the evidence in favor of the verdict. Under this standard of review, the evidence shows that a Lanier nurse mistakenly gave Wallis nine times the amount of Demerol prescribed by the treating physician, which caused Wallis immediately to experience respiratory arrest. As a result, Wallis suffered permanent brain damage. Wallis’s daughters met with Lanier’s CEO to inquire into the accident and to seek financial assistance to help care for their debilitated father. The CEO advised them to obtain legal counsel.

Wallis sued Lanier to recover damages, and Lanier eventually admitted liability for the overdose, but contested causation and damages. Lanier moved in limine to exclude evidence of its parent corporation’s financial condition and to exclude cumulative evidence of liability. The court granted the first motion, which was unopposed, but reserved ruling on the second motion, explaining that some evidence of liability would be needed to address the causation issue. The court also cautioned the parties not to bring in evidence of any settlement negotiations.

At trial evidence came in that Lanier was a “for-profit” corporation, that Lanier’s CEO advised the daughters to seek legal counsel, and that Lanier’s conduct fell below the standard of care. During closing argument, Lanier asked the jury to award Wallis the cost of providing him a sitter for the remainder of his life. The jury awarded $863,180.

Lanier’s three enumerations of error all focus on the admission of certain items of evidence. “Admissibility of evidence rests in the sound discretion of the trial court.” We discern no abuse of discretion by the trial court.

1. Lanier contends that the court erred in allowing Wallis to reference Lanier’s size and profitability. This complaint is belied by the record, as the statements actually made pertained to other matters.

Lanier first complains about the remarks in Wallis’s opening statement that the twice-removed parent of Lanier (Columbia/HCA) was the largest health care corporation in the world and that Lanier and its parents were “for-profit” corporations. There are at least three problems with Lanier’s complaint. First, in its motion in limine and attendant argument, Lanier did not seek to exclude references to Columbia/HCA’s size but only to its financial condition (such as net revenues and net worth), even though Wallis forewarned that he intended to reference the size for purposes of identification. Second, Lanier raised no objection when the remarks were made, thus waiving the issue for appeal. Third, the only evidence at trial on these matters was that as part of its corporate name Lanier accurately included in parentheses that it was a “for-profit” corporation, to which evidence Lanier posed no objection. There was no evidence of Lanier’s (let alone Columbia/HCA’s) size or its financial condition, such as net revenues, net worth, or even whether Lanier made a profit at all. Wallis’s closing argument that Lanier could have paid a $1,000 per hour medical expert to examine Wallis in a futile attempt to find evidence of no damages was not a comment on Lanier’s financial condition, as the argument in context focused on the futility of such a ploy, not on Lanier’s finances.

Lanier’s arguments were therefore either waived or are unsupported by the record. In any case, we fail to discern any abuse of discretion by the trial court.

2. Lanier argues that evidence of settlement negotiations came in when Wallis queried its CEO regarding his conversations with Wallis’s daughters, in which he advised them to obtain legal counsel. Such evidence does not constitute admissions or propositions made with a view to a compromise. No evidence showed that Lanier engaged in any efforts to compromise in these discussions.

Even assuming such were settlement discussions, and noting that Wallis’s counsel alleged during his opening statement that the CEO had made admissions of liability during the discussions with the daughters, we hold that the admission of such evidence was harmless error where Lanier freely stipulated and in fact argued to the jury that it was liable for the overdose and any consequent damages. Referencing concessions of liability in settlement discussions cannot be harmful where the defendant concedes liability at trial.

Decided March 8, 2002.

Weinberg, Wheeler, Hudgins, Gunn & Dial, Johnathan T. Krawcheck, Christopher H. Smith, for appellant.

Whitmer & Law, James H. Whitmer, George H. Law III, for appellees.

Lanier also complains that the court erred in allowing Wallis to question the CEO regarding phone calls to his home office about compromising Wallis’s claim. The record indicates otherwise, as the court sustained Lanier’s objection to this line of inquiry. Again, such would have been harmless anyway in light of the stipulation of liability.

With regard to the second enumeration of error, we discern no abuse of discretion by the trial court.

3. Focusing on its admission of liability, Lanier in its third enumeration argues that the trial court erred in allowing Wallis to present evidence of negligence, as such cumulative evidence was prejudicial. Lanier fails to specify, however, how it was prejudiced. Moreover, whether the probative value of evidence is outweighed by its tendency to unduly prejudice the jury is a matter left to the sound discretion of the trial court. Thus, a trial court’s decision to admit cumulative testimony is subject to an “abuse of discretion” standard of review. Having reviewed the trial testimony, which contains relatively few references to negligence, we discern no manifest abuse of that discretion here, particularly where the negligence testimony helped establish a foundation to show causation.

Judgment affirmed.

Andrews, P. J., and Eldridge, J., concur.

       Pending the appeal, Wallis died, and the co-executors of his estate were substituted as party-appellees.

       (Citation omitted.) Deese v. Carroll City County Hosp., 203 Ga. App. 148, 150 (2) (416 SE2d 127) (1992).

        See Burgeson v. State, 267 Ga. 102, 107 (4) (475 SE2d 580) (1996).

       See Witty v. McNeal Agency, 239 Ga. App. 554, 556 (1) (b) (521 SE2d 619) (1999) (failure to contemporaneously object to evidence waives issue).

       See OCGA § 24-3-37; Graves v. Graves, 252 Ga. 27, 28-29 (1) (310 SE2d 901) (1984) (“vague and unfocused” discussions do not fall within the protection of OCGA § 24-3-37).

        Ostroff v. Coyner, 187 Ga. App. 109, 116-117 (5) (369 SE2d 298) (1988) (where evidence does not show any effort to compromise, OCGA § 24-3-37 affords no protection).

       See Deese, supra, 203 Ga. App. at 150 (2).

        Carroll v. State, 261 Ga. 553, 554 (2) (408 SE2d 412) (1991).

        Lucas v. State, 234 Ga. App. 534, 537 (2) (507 SE2d 253) (1998); accord Reeb v. Daniels Lincoln-Mercury Co., 193 Ga. App. 817, 820 (3) (389 SE2d 367) (1989).

       Cf. Southeastern Security Ins. Co. v. Hotle, 222 Ga. App. 161, 163-164 (1) (d) (473 SE2d 256) (1996).


author: Pope, Presiding Judge.

text:
    A01A2333.
    SMITH v. SOLIGON.
    (561 SE2d 850)
   Pope, Presiding Judge.

William Christopher Smith appeals the superior court’s order denying his petition to legitimate his biological son and granting Peter Paul Soligon’s petition to adopt the child. For the following reasons, we affirm.

The relevant facts establish that the boy who is the subject of this appeal was born in July 1994; there is no dispute that his biological father is Smith. Smith and the child’s mother never married. The child has lived with his mother since his birth. The child’s mother married Soligon on October 9, 1999.

On October 17, 2000, Soligon filed a petition to adopt his stepson which was served on Smith on November 1, 2000. Attached to Soligon’s petition was the mother’s affidavit regarding the biological father, pursuant to OCGA § 19-8-26, and the parental consent to stepparent adoption, under OCGA § 19-8-6. Five days after being served with the adoption petition, on November 6, 2000, Smith filed a petition to legitimate the child.

On April 27, 2001, the superior court held a hearing on the petition to legitimate and on the adoption petition. Smith, Soligon and his wife, and both sides’ attorneys were present for the hearing. After hearing evidence, the court made the following findings of fact. The court found that Smith had maintained contact with the child, particularly in the first few years of his life, but had failed to provide any significant emotional or monetary support for the child. Smith lived with the child and the child’s mother until 1998 both in an apartment and in the home of the mother’s father. Nevertheless, during that time Smith failed to provide any significant financial or emotional support for him. Between the child’s move in 1998 and the filing of the adoption petition, Smith failed to pay any child support and had only mailed him a few gifts or cards. The court noted also that Smith “had a sporadic work history and also has a significant misdemeanor criminal record.”

Significantly, the court found that Smith’s last visit with the child had been in 1998. Smith had occasionally tried to telephone the child, but had not, the court concluded, established any familial bond. Smith had made no attempt to legitimate the child until he learned of Soligon’s desire to adopt him. The court also noted that Smith had the opportunity to place his name on the child’s birth certificate in the hospital following his birth, but did not do so. Smith had also failed to file with the Georgia Putative Father’s Registry.

The court then stated that Smith had “failed, without justifiable cause, to make a meaningful effort to develop and/or maintain a relationship” with the child; that “he does not have a genuine interest in consistently maintaining a meaningful relationship with this child”; and that he had failed to meet his parental obligations and duties with respect to this child.

Accordingly, the court denied the petition to legitimate, finding that Smith had abandoned the child and that it was in the child’s best interest that the petition be denied. The court concluded that it was in the child’s best interest to allow the adoption by Soligon, and thus, it granted his adoption petition.

1. Soligon has moved this court to dismiss Smith’s appeal due to his failure to follow the discretionary appeal procedure under OCGA § 5-6-35 (a) (2). Contrary to Soligon’s assertions, however, this court has jurisdiction. See generally In the Interest of D. S. P., 233 Ga. App. 346, 347 (1) (504 SE2d 211) (1998); see also Alexander v. Guthrie, 216 Ga. App. 460, n. 1 (454 SE2d 805) (1995).

2. Before turning to the merits of the case, we note that while Smith asserts eight separate enumerations of error, he does not subdivide his argument to support the separate enumerations. Accordingly, we will broadly group his enumerations of error and address the broad contentions.

Smith claims that the denial of his petition to legitimate was an abuse of discretion, was not supported by the evidence, was contrary to OCGA § 19-7-22, and was not in the child’s best interest. We reject these arguments.

OCGA § 19-7-22 sets forth the procedure for legitimation. In subsection (g), the statute provides that after the issue of paternity is resolved, the court may enter an order: “legitimating a child bom out of wedlock, provided that such is in the best interest of the child.”

In Jones v. Smith, 250 Ga. App. 486 (552 SE2d 112) (2001), this court addressed the standards applicable to legitimation proceedings, finding:

The law relevant to a legitimation petition presented by the putative biological father has been explained by the Supreme Court in In re Baby Girl Eason, 257 Ga. 292, 296 [(1)] (358 SE2d 459) (1987). The court must initially determine whether the father has abandoned his opportunity interest to develop a relationship with the child. Id. Then, depending on the nature of the putative father’s relationship with the child and other surrounding circumstances, the standard for evaluating whether legitimation is appropriate is either a test of his fitness as a parent or the best interest of the child. Id. at 296-297. See also LaBrec v. Davis, 243 Ga. App. 307, 312-316 (2) (534 SE2d 84) (2000), aff’d, Davis v. LaBrec, 274 Ga. 5 (549 SE2d 76) (2001). This decision is dependent on a variety of factors as spelled out in Eason and LaBrec.

Jones v. Smith, 250 Ga. App. at 486.

With respect to the biological father’s opportunity interest, our Supreme Court stated in Eason:

unwed fathers gain from their biological connection with a child an opportunity interest to develop a relationship with their children which is constitutionally protected. This opportunity interest begins at conception and endures probably throughout the minority of the child. But it is not indestructible. It may be lost. ... It is, then, an interest which can be abandoned by the unwed father if not timely pursued. On the other hand it is an interest which an unwed father has a right to pursue through his commitment to becoming a father in a true relational sense as well as in a biological sense.

257 Ga. at 296 (1).

Given the evidence presented below, we find no error in the trial court’s determination that, in effect, Smith had abandoned his opportunity interest to develop a relationship with the child. Eason, 257 Ga. at 297; Turner v. Wright, 217 Ga. App. 368, 369 (1) (457 SE2d 575) (1995).

Moreover, the record also supports the court’s conclusion that it was not in the child’s best interest to grant Smith’s petition. See generally Ghrist v. Fricks, 219 Ga. App. 415, 419-420 (1) (465 SE2d 501) (1995). Thus, we find no error in this further determination.

3. Smith also argues that Soligon’s petition for adoption was improperly brought, that the petition for adoption should have been denied, and that the court improperly terminated his parental rights. We also reject these arguments.

First, Smith has not shown the manner in which he was harmed by his claim that the adoption petition was improperly brought, and we reject this argument. Secondly, after his petition to legitimate was denied, under OCGA § 19-8-12 (f) (3), Smith lost all of his rights to the child and was not entitled to object to the adoption. Subsection (f) specifically provides:

Decided March 8, 2002

Joyce D. Colmar, for appellant.

A biological father who is not the legal father loses all rights to the child and the court shall enter an order terminating all such father’s rights to the child and such father may not thereafter object to the adoption and is not entitled to receive further notice of the adoption if within 30 days from his receipt of the notice provided for in subsection (b) of this Code section he: (1) Does not file a legitimation petition and give notice as required in subsection (c) of this Code section; (2) Files a legitimation petition which is subsequently dismissed for failure to prosecute; or (3) Files a legitimation petition and the action is subsequently concluded without a court order declaring a finding that he is the father of the child.

Subsection (f) (3) pertains to the instant case because Smith received notice of the proceeding and within 30 days filed his petition to legitimate. Accordingly, we reject Smith’s arguments relating to the termination of his parental rights and to the adoption.

Because this case involves the denial of the biological father’s petition to legitimate and squarely invokes the provisions of OCGA § 19-8-12 (f) (3), we are not directly confronted with the provisions regarding a legal parent’s rights in connection with a stepparent adoption, OCGA § 19-8-6 (a). In this regard, see Cowdell v. Doe, 225 Ga. App. 97 (483 SE2d 347) (1997); see also Spires v. Tarleton, 225 Ga. App. 117 (483 SE2d 337) (1997). Nevertheless, we note that our Supreme Court has granted certiorari in In re C. N. W. (Case No. S01C0381), to address the question of whether a biological father who is not the “legal father” of a child within the meaning of OCGA § 19-8-1 (6) is a “parent” within the meaning of OCGA § 19-8-1 (8).

4. Finally, we reject Smith’s argument regarding the absence at trial of a psychologist Soligon had consulted.

Judgment affirmed.

Blackburn, C. J., and Mikell, J., concur.

Claiborne, Outman & Surmay, James B. Outman, Barbara B. Bishop, for appellee.

       Although the court did not use the term “opportunity interest,” it conducted a rigorous inquiry into that subject as required by Eason and LaBrec. The court’s failure to use this terminology, therefore, is not critical.

       Under Eason, the court’s determination that Smith abandoned his opportunity interest was sufficient to end its inquiry regarding the petition to legitimate. See Turner v. Wright, 217 Ga. App. at 369. Nevertheless, the court’s more rigorous inquiry was more protective of Smith’s rights and, as such, was only beneficial to him.

       Furthermore, because of the specific statutory provisions of OCGA § 19-8-12, the provisions regarding juvenile proceedings of OCGA § 15-11-94 (formerly OCGA § 15-11-81) are not involved. See In the Interest of S. L. H., 247 Ga. App. 594 (544 SE2d 518) (2001).


text:
    A01A2434.
    HILL et al. v. CENTENNIAL/ASHTON PROPERTIES CORPORATION et al.
    (561 SE2d 853)
   Miller, Judge.

Anita Hill appeals from the trial court’s order granting her former attorney’s motion to foreclose a lien for attorney fees. On appeal she contends that the trial court erred by (1) finding the contract between Hill and her former attorney unambiguous, (2) failing to determine whether Hill’s former attorney complied with the requirements of OCGA § 44-14-550, (3) making clearly erroneous factual findings regarding the reasonableness of the former attorney’s fees, and (4) failing to give any weight to the testimony of Hill’s expert witness. We discern no error and affirm.

The record reveals that Hill hired Deborah Green (now Deborah Green Gilden) to represent her in a wrongful death suit against a nursing home. Hill and Green entered into a written contingency fee agreement that provided for an alternative method of payment if either party terminated the agreement before the underlying lawsuit was settled or pursued to a final judgment:

[Hill] shall have the right at any time to terminate the services of Deborah L. Green upon written notice. The attorney reserves the right to withdraw from any representation for any valid reason. Such termination, however, shall not relieve [Hill] of the obligation to pay the fees for services rendered and disbursements incurred prior to termination. Should such right of termination be exercised by either of us prior to the judgement or verdict or that which is paid in satisfaction of any ultimate judgement, payment shall revert to quantum meruit (at the attorney’s hourly rate determined on the date of written notice of termination, for services rendered as calculated by the hour).

Green, whose practice consisted almost exclusively of nursing home cases, investigated the case, interviewed experts, pursued discovery, prepared pleadings, engaged in extensive settlement negotiations with the defendants, and attempted to schedule a formal mediation with the defendants. Before a mediation was scheduled, however, and after having worked on the case for nearly a year, Green informed Hill that she would be moving to Massachusetts to get married. Hill hired a new attorney, and Green transferred a file to the new attorney consisting of four boxes worth of materials that she had compiled in the case. On September 7, 1999, Hill sent a letter to Green terminating her services.

Hill and her new attorney settled the case with the nursing home and sent a letter to Green dated January 11, 2000, informing her of the settlement. Just over a week later Green filed an attorney’s lien. Hill objected to the lien and moved to dismiss it, claiming that Green did not comply with the notice requirements of OCGA § 44-14-550. Green filed a motion to foreclose the attorney’s lien. Hill’s motion to dismiss was denied on November 20, 2000, and the eviden-tiary hearing on the motion to foreclose the attorney’s lien was set for February 16, 2001.

At the hearing on the motion to foreclose the lien, Green testified that she had spent at least 231.6 hours on Hill’s case. Although she did not keep time sheets regarding the case because the case was originally taken on contingency, Green did provide detailed testimony regarding the work she had done and the. files that she reviewed to account for her estimate of time spent on the case. Evidence showed that Green’s hourly rate was $175 and was reasonable. An expert testified for Hill that the fees should have amounted only to $7,419. However, this expert had no experience in nursing home malpractice cases and admitted that he did not account for several of the activities for which Green spent time on the case. The trial court ruled that it would give no weight to the expert’s testimony and granted Green’s motion, awarding her $40,530.

1. Hill argues that her contract with Green was ambiguous because the words “quantum meruit” have a different legal meaning from that which is indicated in the contract. We find this argument to be without merit.

The construction of a contract is a question of law for the court that is subject to de novo review. See Deep Six v. Abernathy, 246 Ga. App. 71, 73 (2) (538 SE2d 886) (2000). Before applying the rules of construction, a court must first decide if the contract language is ambiguous. Id. Where contract language is unambiguous, construction is unnecessary and the court simply enforces the contract according to its clear terms. Caswell v. Anderson, 241 Ga. App. 703 (527 SE2d 582) (2000).

We hold that the contract language here is not ambiguous. The parties were free to set the manner in which attorney fees would be calculated. See Morrow v. Stewart, 197 Ga. App. 689, 690 (399 SE2d 280) (1990). The agreement unambiguously states that fees would be calculated based on Green’s hourly rate for the work that she had done prior to the agreement being terminated. The use of the words “quantum meruit” in the agreement does not change the fact that the parties agreed to a clear method by which fees would be calculated. The agreement is not ambiguous, and the trial court did not err by failing to find any ambiguity.

2. Hill further contends that the trial court erred by failing to determine whether Green complied with OCGA § 44-14-550 in the filing of her attorney’s lien. We disagree.

Lien laws such as the attorney’s lien statute are in derogation of common law and must be strictly construed. Ellis, Funk, Goldberg, Labovitz &c. v. Kleinberger, 235 Ga. App. 360, 361 (1) (509 SE2d 660) (1998). “The legislature enacted a bright line rule that liens of attorneys at law in possession of personal property under a lien for fees pursuant to OCGA § 15-19-15 shall be satisfied according to Code Section 44-14-550.” (Citation and punctuation omitted; emphasis in original.) Jones v. Wellon, 237 Ga. App. 62, 65 (514 SE2d 880) (1999). No such legislative restriction has been placed on liens on actions, judgments, or decrees for money created under OCGA § 15-19-14. If the legislature had intended for attorney liens on actions, judgments, or decrees for money to be governed by the procedures set forth under Title 44, it would have explicitly stated so, as it did for liens covered by OCGA § 15-19-15. See Jones, supra, 237 Ga. App. at 65. Since OCGA § 44-14-550 does not apply to this action, Hill’s argument is without merit.

3. Hill claims that the trial court erred by finding that Green submitted sufficient evidence that she spent 231.6 hours working on Hill’s case. We disagree.

When the trial court sits as trier of fact, we will accept the factual determinations of the trial court if there is any evidence to support them. Sam’s Wholesale Club v. Riley, 241 Ga. App. 693 (527 SE2d 293) (1999). As an appellate court, we do not weigh the evidence considered by the trial court. Jennings Enterprises v. Carte, 224 Ga. App. 538, 541 (5) (481 SE2d 541) (1997).

Green testified that she spent 231.6 hours on the case and justified it through detailed testimony about what work she did on the case and about what materials she reviewed to come up with an accurate figure regarding the time she spent. She had worked on the case for nearly a year and accumulated four boxes worth of files during her work on the case. Even though she did not have formal time sheets, there is some evidence to support the trial court’s finding, and we will not disturb that finding on appeal.

4. Hill urges that the trial court erred by failing to give any weight to the testimony of her expert. The trial court was free to accept or reject the expert’s testimony because the weight and credibility to be given opinion evidence are within the discretion of the trier of fact. See Reynolds Constr. Co. v. Reynolds, 218 Ga. App. 23, 25 (459 SE2d 612) (1995). Hill has failed to show any error here.

Decided March 8, 2002.

John A. Roberts, for appellants.

Weinberg, Wheeler, Hudgins, Gunn & Dial, John K. Train TV, Hall, Booth, Smith & Slover, Thomas A. Graham, Warren R. Hinds, for appellees.

Judgment affirmed.

Andrews, P. J, concurs. Eldridge, J., concurs in judgment only.


text:
    A01A2494.
    THOMPSON v. LEDBETTER et al.
    (561 SE2d 476)
   Miller, Judge.

Dorothy Thompson appeals from the trial court’s grant of a directed verdict against her on her claim for negligent entrustment. She argues on appeal that (1) the trial court erred in granting defendant Leon Whitfield a directed verdict since the circumstantial evidence at trial revealed that Whitfield gave James Ledbetter, an incompetent driver, permission to drive his truck, and (2) the trial court erred by sustaining Whitfield’s objection to Thompson’s cross-examination regarding Whitfield’s meeting and knowing Ledbetter’s family. We hold that the trial court erred by granting a directed verdict to Whitfield.

Viewed in the light most favorable to Thompson, the evidence reveals that on the night of April 4, 1997, Ledbetter, an employee of Whitfield, drove a truck owned by Whitfield and was involved in a car accident. Thompson was a passenger in the truck and suffered injuries in the accident.

Prior to the accident, the truck had been parked at Whitfield’s place of business in an area that was monitored by security cameras and a 24-hour management staff. Whitfield generally knew where the truck was parked on the weekends and testified that he knew that the truck was missing on Friday, the day before he received a call from Thompson’s mother about the accident. There was no evidence of when, if ever, Whitfield reported the truck stolen after he discovered that it was missing on Friday.

Thompson’s mother testified that when she called Whitfield after the accident to inform him of what had happened, Whitfield denied that he even knew Ledbetter. The mother also testified that she had never spoken to Whitfield prior to the accident. Although several witnesses saw Ledbetter use the truck regularly prior to the accident, none of them knew whether Ledbetter had permission to use the truck. Whitfield never testified that he did not give Ledbetter permission to drive the truck, and Ledbetter did not testify at trial.

Thompson’s counsel attempted to cross-examine Whitfield about his meeting Ledbetter’s brother. However, Whitfield’s counsel objected, and the trial court sustained the objection, finding this line of questioning about Ledbetter’s family to be irrelevant.

At the close of Thompson’s evidence, Whitfield moved for a directed verdict, which was granted.

1. Thompson argues that the trial court erred in granting a directed verdict to Whitfield on Thompson’s negligent entrustment claim because circumstantial evidence indicates that Whitfield gave Ledbetter permission to use his truck on the night of the accident. Since the evidence authorizes an inference that permission was given, we hold that the trial court erred by granting a directed verdict to Whitfield.

A directed verdict is appropriate when there is no conflict in the evidence as to any material issue, and the evidence introduced, construed most favorably to the party opposing the motion, demands a particular verdict. Beasley v. Paul, 223 Ga. App. 706, 707 (2) (478 SE2d 899) (1996).

“Under the theory of negligent entrustment, liability of an owner of a vehicle is predicated upon the negligent act of the owner in lending his vehicle to another person with actual knowledge of the latter’s incompetence or habitual recklessness.” (Citation omitted.) Clarke v. Cox, 197 Ga. App. 83 (1) (397 SE2d 598) (1990). In this regard, Thompson was required to prove that Whitfield gave Ledbetter permission to use his truck. See Pague v. Pendley, 177 Ga. App. 573, 575 (3) (340 SE2d 190) (1986). Whitfield concedes that he had actual knowledge that Ledbetter was an incompetent driver.

Evidence of employment with the car owner and prior use of a car can raise an inference that permission was given to use the vehicle. Barnes v. Johnson, 194 Ga. App. 568, 570 (1) (390 SE2d 921) (1990). Here, Ledbetter, an employee of Whitfield, was seen using the truck on several occasions prior to the night of the accident. Even though no one could testify whether Ledbetter had express permission to use the truck, the jury was authorized to infer that Ledbetter had permission to drive the truck. Contrary to the trial court’s order, there was no direct testimony that Ledbetter did not have permission to drive the truck. The trial court therefore should have allowed the jury to decide this case based on the evidence presented and erred by granting a directed verdict to Whitfield on Thompson’s negligent entrustment claim.

2. In light of our holding in Division 1, the second enumeration is moot.

Judgment reversed.

Andrews, P. J., and Eldridge, J., concur.

Decided March 8, 2002.

Serio & Swilley, Salvatore J. Serio, for appellant.

Fortson, Bentley & Griffin, J. Edward Allen, Jr., for appellees.


author: Andrews, Presiding Judge.

text:
    A01A1718, A01A1719.
    DOE v. HGI REALTY, INC.; and vice versa.
    (561 SE2d 450)
   Andrews, Presiding Judge.

These two cases are before us on appeal following the trial court’s grant of summary judgment to HGI Realty, Inc. on Jane Doe’s claim for damages after she was robbed and sexually assaulted while working in a store at Calhoun Outlet Center. Doe appeals from that grant of summary judgment, and HGI Realty cross-appeals from the court’s order awarding Doe $30,000 in attorney fees for discovery abuses. For the following reasons we affirm in both cases.

Case No. A01A1718

In this case, Doe appeals from the trial court’s grant of summary judgment to HGI Realty. The undisputed facts are as follows. HGI Realty owns and manages Calhoun Outlet Center, and at the time in question, Doe was an employee at the Welcome Home Store, one of the businesses in the outlet center. On the afternoon of January 24, 1995, Doe was working at the store with Margaret Craig, the manager. Around 3:00 p.m., Doe first saw the assailant come into the store, but she did not become suspicious because he looked like any other customer. Approximately 30 to 45 minutes later, the man came back and pointed a gun at Doe and Craig. The man took the money from the cash register and told Craig to lock the door. He took both women into the back, shut Craig in the bathroom, took Doe into the office and sexually assaulted her.

Doe points out that although HGI Realty had been providing security in the common areas during business hours, it discontinued this security approximately three weeks before the attack. Doe also introduced evidence of one other violent incident in which a store employee was robbed at knifepoint in October 1993. But, there is no evidence in the record that anyone was ever hurt, injured, or sexually assaulted at the outlet center.

Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. OCGA § 9-11-56 (c). To obtain summary judgment, a defendant need not produce any evidence, but must only point to an absence of evidence supporting at least one essential element of the plaintiff’s claim. Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991). Our review of a grant of summary judgment is de novo, and we view the evidence and all reasonable inferences drawn from it in the light most favorable to the nonmovant. Supchak v. Pruitt, 232 Ga. App. 680, 682 (503 SE2d 581) (1998).

Doe acknowledges that the landlord’s duty under OCGA § 51-3-1 to keep safe those portions of the leased premises designated as common areas in which the landlord has reserved a qualified right of possession does not extend to the leased areas of the premises over which the tenant has exclusive possession and control. Stephens v. Clairmont Center, 230 Ga. App. 793, 794-795 (2) (498 SE2d 307) (1998); Gale v. North Meadow Assoc. Joint Venture, 219 Ga. App. 801, 802-803 (466 SE2d 648) (1996); Plott v. Cloer, 219 Ga. App. 130, 131 (1) (464 SE2d 39) (1995). Neither does Doe argue on appeal that failing to provide security in the common areas was a proximate cause of the criminal attack within the leased premises. See, e.g., Fallon v. Metro. Life Ins. Co., 238 Ga. App. 156 (518 SE2d 170) (1999) (physical precedent only); Stephens v. Clairmont Center, supra; Post Properties v. Doe, 230 Ga. App. 34 (495 SE2d 573) (1997) (physical precedent only); Godwin v. Olshan, 161 Ga. App. 35, 37 (288 SE2d 850) (1982).

Doe contends on appeal that there was an issue of fact as to whether HGI Realty assumed the duty of providing security within the leased premises. In support of this argument, Doe cites to a portion of the defendant’s security manual which states that security guards were to enter each store at “random intervals.” Doe also states that when HGI Realty provided security during operating hours during the last quarter of 1994, security guards patrolled the common areas, entered each store daily, checked each store regularly, and investigated unusual circumstances at the stores.

But, there is nothing in the measures described above to show that the security guards assumed the responsibility or undertook the duty of providing security within the stores. This Court has consistently held that measures such as those described above do not impose additional obligations on the landlord.

A landowner does not become an insurer of safety by taking some security precautions on behalf of invitees. Undertaking measures to protect patrons does not heighten the standard of care; and taking some measures does not ordinarily constitute evidence that further measures might be required. . . . [I]f a defendant undertakes to do more for the benefit of another person than the law requires, he or she may be held liable if he or she acts unreasonably or makes the situation worse, by increasing the danger, or by misleading the plaintiff into belief that it has been removed, or by depriving the plaintiff of the possibility of help from other sources.

(Citation and punctuation omitted.) Ritz Carlton Hotel Co. v. Revel, 216 Ga. App. 300, 303-304 (2) (454 SE2d 183) (1995). See generally Lau’s Corp., supra at 495; Stephens v. Clairmont Center, supra at 795 (2); Doe v. Prudential-Bache/A.G. Spanos Realty &c., 222 Ga. App. 169, 174 (474 SE2d 31) (1996).

Here, Doe stated in her deposition that she knew there was no security during business hours, and there is no evidence that any of the other factors listed above exist in this case. The trial court did not err in granting HGI Realty’s motion for summary judgment.

Case No. A01A1719

In this case, HGI Realty appeals from the trial court’s order awarding attorney fees of $30,000 to Doe’s counsel after finding that the discovery misconduct of defendants and their counsel was “nothing short of deplorable.” The trial court allowed plaintiff’s counsel “to redepose any witness whose testimony has been improperly interrupted or influenced by counsel for Defendants.” All fees and costs associated with the discovery abuse remedies were to be borne by defendants and defendants’ counsel.

Plaintiff’s counsel submitted a request for attorney fees of $118,354.50, which the court denied, finding that plaintiff had not submitted competent evidence to support it. Plaintiff then submitted affidavits in support of the request, stating that the rates were reasonable. The court found that the rates were neither reasonable nor necessary. The court reduced the amount of fees requested to $30,000, and it is from this award that HGI Realty appeals.

OCGA § 9-15-14 (b) provides that the

court may assess reasonable and necessary attorney’s fees and expenses of litigation in any civil action in any court of record if, upon the motion of any party or the court itself, it finds that an attorney or party brought or defended an action, or any part thereof, that lacked substantial justification or that the action, or any part thereof, was interposed for delay or harassment, or if it finds that an attorney or party unnecessarily expanded the proceeding by other improper conduct, including, but not limited to, abuses of discovery procedures available under Chapter 11 of this title, the “Georgia Civil Practice Act.”

Decided February 26, 2002

Reconsideration denied March 11, 2002

Wagner, Johnston & Rosenthal, Michael S. Rosenthal, Stacy M. Pineo, for appellant.

OCGA § 9-15-14 (b) is discretionary, and the standard of review on appeal is abuse of discretion. But, in order to recover attorney fees, both their actual cost and their reasonableness must be shown. Santora v. American Combustion, 225 Ga. App. 771, 774 (485 SE2d 34) (1997).

In reviewing awards under this Code section, we are mindful that “[t]rial judges have broad discretion in controlling discovery, including imposition of sanctions, and appellate courts will not reverse a trial court’s decision on such matters unless there has been a clear abuse of discretion.” (Citations and punctuation omitted.) West v. Equifax Credit Information Svcs., 230 Ga. App. 41, 42 (1) (495 SE2d 300) (1997).

Here, plaintiff’s counsel submitted billing records and also submitted affidavits stating that the hourly rates were reasonable. But, HGI Realty claims the billing statements failed to distinguish between time and expenses attributable to the discovery abuses and time and expenses attributable to other aspects of the case.

It is true that some of the billing records submitted also appear to include work done on matters not related to the defendants’ discovery abuse; however, the majority of the time sheets submitted relate solely to discovery abuse matters. Moreover, the court stated in its order that after reviewing the records it was able to determine that $30,000 was the reasonable and necessary amount of attorney fees necessitated by the conduct of defense during discovery. The trial court’s determination as to what fees are reasonable and necessary must be sustained unless the trial court abused its discretion. Gibbs v. Abiose, 235 Ga. App. 214, 219 (508 SE2d 690) (1998). Compare Citadel Corp. v. All-South Subcontractors, 217 Ga. App. 736, 739 (458 SE2d 711) (1995) (no evidence presented from which jury could determine what portion of time spent was attributable to recoverable fees); Southern Cellular Telecom v. Banks, 209 Ga. App. 401, 402 (433 SE2d 606) (1993) (trial court could not determine what were recoverable fees where time sheets included many entries consisting only of statements that a conference was held, a letter was written, or a telephone call was made). Here, the record supports the trial court’s award, and therefore, we find no abuse of discretion. Haggard v. Bd. of Regents &c. of Ga., 257 Ga. 524, 527 (360 SE2d 566) (1987).

Judgments affirmed.

Eldridge and Miller, JJ, concur.

Husser & Frazier, Genevieve L. Frazier, Mabry & McClelland, James S. Anderson, for appellee.

       But, on the same page, the manual also states that security guards are not to go into “storage rooms, offices or dressing room areas of tenant stores unless requested to do so or permission granted by the store manager or employee in charge.”


text:
    A01A2128.
    SUNDMAN v. FARIS.
    (561 SE2d 442)
   Andrews, Presiding Judge.

Sundman appeals from the trial court’s grant of summary judgment to Faris in Faris’ suit on a foreign judgment. Toledo Center Floor Covering v. Richfield Carpet Mills, 176 Ga. App. 400 (1) (336 SE2d 320) (1985).

At the crux of this suit is the “Order of Dismissal” of Sundman’s California suit against Faris signed by Orange County Superior Court Judge Thomas Thrasher on February 26, 1993, and filed that same day. The case was dismissed when Sundman did not appear for trial and his attorney, Flax, instead sought a continuance which was denied. The last paragraph of that order states that “[i]t is further ordered that the Defendants recover their costs in the sum of $41,567.80 per memo of costs filed 2/10/93 TT.” The emphasized portion of the order is handwritten. In the left margin, next to this paragraph, appear handwritten initials “TT” and “6/13/93.” According to the certificate of fact filed on behalf of Alan Slater, the Clerk of Orange County Superior Court by Writ and Judgment Clerk Tina Tran, Faris’ memorandum of costs was filed in Orange County Superior Court on February 10, 1993, and Tran, on June 13, 1993, “posted costs in the sum of $41,567.80 (per Memorandum of Costs filed 2-10-93) to be part of the Order of Dismissal filed on 2-26-93 according to the Orange County Superior Court’s procedures for posting costs into the Judgment or Order.” Tran further identifies the initials “TT” as hers.

Also of record is the March 30, 1993 notice of entry of order of dismissal, including the amount of costs, and the certificate of service of that document on Flax and Sundman by Orange County employee Jeanne Sullivan.

Both the order of dismissal and notice of entry of order of dismissal were certified and authenticated as required by OCGA § 24-7-24 (a) (1) by both Clerk Slater and Judge Thrasher on April 28, 1998.

Although Sundman enumerates two enumerations of error, the only argument made is that the “California ‘Order of Dismissal’ is not a final judgment and cannot be domesticated in Georgia,” and that is all we consider.

After Sundman moved to Georgia, Faris filed the present suit on September 9, 1994, and thereafter moved for summary judgment. Rather than file an appeal of the California order of dismissal, Sundman sued Flax for malpractice in California, and a judgment was stipulated in which Sundman was awarded $125,000. A provision of the judgment was an indemnification agreement in the event Faris collected the original $41,567.80 contained in the order of dismissal.

Despite Faris’ California attorney’s obtaining of a temporary restraining order in the malpractice proceeding prohibiting Flax from paying the judgment to Sundman until Faris’ motion for assignment order seeking the $41,567.80 portion of the judgment could be determined, Flax paid Sundman’s California attorney the malpractice judgment.

On March 20, 1997, unaware of the payment by Flax, Judge Wilkinson of Orange County Superior Court held a hearing on the motion for assignment order and concluded that the order of dismissal was a valid order in California because it had never been appealed, despite any procedural defects in the order.

Faris then filed his motion for summary judgment in his Georgia case based on the order of dismissal, resulting in the present appeal.

As concluded by the trial court in a thorough and well-reasoned order, the order of dismissal was a final judgment under California law, in that it “end[ed] the suit in the court in which it was instituted, . . . finally determine^] the rights of the parties [in] relation to the matter in controversy,” Vallera v. Vallera, 64 Cal. App.2d 266, 270 (148 P2d 694) (1944), and had become final because no appeal had been taken and the 180 days within which an appeal may be taken had expired. Cal. Code Civ. Proc. §§ 700.190; 581 (d); In re Sheila B., 19 Cal. App.4th 187, 196-198 (23 Cal. Rptr.2d 482) (1993); Pacific Gas &c. Co. v. Nakano, 12 Cal.2d 711 (87 P2d 700) (1939).

Under the full faith and credit clause of the United States Constitution, the courts of this state will enforce the judgment of a court of another state; such a judgment is res judicata between the parties. Crosby v. Wenzoski, 164 Ga. App. 266, 269 (1) (296 SE2d 162) (1982). When suit is brought in this state to domesticate a foreign judgment, “the judgment may be attacked only if the foreign court lacked jurisdiction over the person of the defendant or of the subject matter of the action, or if the judgment was procured by fraud.” (Citations omitted.) Economou v. Economou, 196 Ga. App. 196 (1) (395 SE2d 830) (1990).

Murdock v. Madison River Terminal, 249 Ga. App. 608, 609-610 (1) (547 SE2d 802) (2001).

Decided February 22, 2002

Reconsideration denied March 11, 2002

Charles R. Desiderio, for appellant.

Thomas A. Camp, for appellee.

Having initiated the California litigation, Sundman wisely does not argue lack of jurisdiction. Nor is argument made that the underlying judgment was procured by fraud. Brown v. U. S. Fidelity &c. Co., 208 Ga. App. 834, 836 (5) (432 SE2d 256) (1993).

The procedural arguments made here regarding the California judgment are of no avail to Sundman. “Regardless of the correctness of the prior trial court’s judgment, such case cannot be relitigated.” (Citations and footnote omitted.) Smith v. AirTouch Cellular &c., 244 Ga. App. 71, 73 (3) (534 SE2d 832) (2000).

The grant of summary judgment to Faris was not error.

Judgment affirmed.

Eldridge and Miller, JJ, concur.

       This is not a suit pursuant to OCGA § 9-12-130 et seq. since California has not adopted the Uniform Enforcement of Foreign Judgments Act. OCGA § 9-12-138.


text:
    A01A2243.
    CARTER et al. v. STATE OF GEORGIA.
    (561 SE2d 856)
   Pope, Presiding Judge.

Curtis Carter and Amber D’Avino appeal the judgment forfeiting their 1993 Ford Ranger truck to the State of Georgia. The truck was forfeited under OCGA § 16-13-49 because it was used to facilitate the possession of marijuana with the intent to distribute in violation of OCGA § 16-13-30. We affirm because D’Avino made an admission against interest which supported the trial court’s findings.

The record shows that Clarke County Police Officer Mike Hunsinger told United States Postal Inspector Ellen Massey that D’Avino regularly received shipments of ecstasy and marijuana in packages delivered to a post office box in Athens. Hunsinger also told Massey that, based on information he received from a confidential informant, an associate of D’Avino, “Tasha Goodwin,” would open a post office box for the purpose of receiving drug contraband on behalf of D’Avino. Massey conducted an independent investigation and determined that Carter and D’Avino had rented a post office box at the Athens main post office. She also discovered that between June 27, 2000, and September 13, 2000, seven Express Mail packages weighing between one and two pounds had been delivered to their post office box from an address in Eureka, California. The Eureka address did not exist.

On December 7, 2000, Massey learned that a package from the same nonexistent California address was in the process of shipment by Express Mail to a “Tasha Pippin” at a post office box address at the Athens main post office. This post office box, which was not the same post office box rented to Carter and D’Avino, had been rented to “Latasha Pippin” on December 1, 2000. Latasha Pippin and Latasha Goodwin were the maiden and married name of the same person, although this was not known to Massey at the time. Massey arranged for a trained narcotics dog to examine a lineup of packages, including the unopened package from California, but the dog did not alert to the presence of drugs. Nevertheless, based on this information and her experience that a mailer of a contraband drug package often uses a nonexistent address, Massey prepared and submitted an affidavit in support of a search warrant for the Tasha Pippin package to the United States District Court for the Northern District of Georgia. A federal judge issued the warrant.

Massey opened the package and found two bags of marijuana. She then wrapped and sealed the package and placed it in a parcel locker at the Athens main post office. She placed a key to the parcel locker in the Latasha Pippin post office box. Carter later removed the key to the parcel locker from the Latasha Pippin post office box and then retrieved the package containing the contraband. Police arrested Carter as he was entering the truck with the package.

After taking Carter into custody, police went to the residence shared by Carter and D’Avino. D’Avino admitted to an arrangement that she and Carter had with a source in California for receiving contraband drugs through the United States mail. D’Avino also told the officers that she had solicited Goodwin to obtain a post office box for the purpose of receiving the drug packages meant for Carter and D’Avino. Based on the foregoing, the State filed an in rem complaint for forfeiture against the Ford truck.

In their enumerations of error, Carter and D’Avino challenge the admissibility of the federal search warrant, claiming it was not certified and not admissible as a business record, and they also argue that the trial court erred in overruling their motion to suppress the evidence found in the Express Mail package. But we need not reach these issues because the judgment forfeiting the truck must be affirmed regardless of the merit of these enumerations of error.

“A forfeiture action is a civil proceeding. The State, as plaintiff, was required to prove its case by a preponderance of the evidence rather than by the higher burden of proof applicable to criminal cases.” (Citations, punctuation and emphasis omitted.) Bettis v. State of Ga., 228 Ga. App. 120, 121 (491 SE2d 155) (1997). The trial court, sitting as trier of fact, found that D’Avino knew that Carter was using their truck to pick up a shipment of marijuana and that she was aiding and abetting a violation of OCGA § 16-13-30. “[W]e will not disturb [the trial court’s] findings unless they were clearly erroneous. And a trial court’s findings of fact are not clearly erroneous if there is any evidence to support them.” (Citations and punctuation omitted.) Jones v. State of Ga., 249 Ga. App. 64, 68 (3) (547 SE2d 725) (2001). The evidence shows that after police arrived at the Carter-D’Avino residence, D’Avino let them in voluntarily, at which time police observed what they believed to be contraband. They decided to question D’Avino, and, having been informed of her Miranda rights, she told the officers that

Decided March 11, 2002.

James W. Smith, for appellants.

Kenneth W[ Mauldin, District Attorney, Anthony C. Lee Hing, Thomas W. Hayes, for appellee.

she and Mr. Carter had been obtaining marijuana from a source in California for several months, that they were obtaining marijuana three or four times a month from the source, that she had been to the source’s residence in California for a period of time. . . . She advised that she knew that Curtis had gone at that time to go pick up the package from the post office and the package would contain marijuana because they had placed an order from the source.

Even if the original informant was unreliable, the officers were authorized to knock on D’Avino’s door to investigate. See generally Hall v. State, 239 Ga. 832 (1) (238 SE2d 912) (1977).

This is a civil proceeding, in which “an out-of court confession is an admission against interest, and its introduction into evidence [may make] out a prima facie case for the plaintiff. [Cits.]” Hall v. State of Ga., 226 Ga. App. 486, 487 (486 SE2d 710) (1997). The trial court set forth D’Avino’s admission as a separate and independent basis for the forfeiture. Assuming, without deciding, that Carter and D’Avino are correct in their enumerations attacking the admissibility of the federal search warrant and the legality of its issuance, the trial court was nevertheless authorized to enter its judgment of forfeiture based solely on D’Avino’s confession.

Judgment affirmed.

Blackburn, C. J., and Mikell, J., concur.


author: Johnson, Presiding Judge.

text:
    A02A1048.
    ST. PAUL REINSURANCE COMPANY, LTD. v. ROSS et al.
    (561 SE2d 489)
   Johnson, Presiding Judge.

The threshold issue before us is whether this Court has authority to exercise appellate jurisdiction over this appeal. Because we find that such authority is lacking, the motion for reconsideration of Shirley Ross is granted and this appeal is dismissed.

This Court granted an application for discretionary appeal in a garnishment case concluding that reversible error was likely to exist as Ross appeared to lack standing to bring the garnishment action against St. Paul Reinsurance Company, Ltd. Based on the grant of the application, St. Paul filed a timely notice of appeal and the appeal was docketed as Case No. A01A0250.

Subsequently, this Court determined that certain issues regarding standing had not been adequately presented to or properly ruled on by the trial court and remanded the appeal for its adjudication of these issues. It was our intent that after the trial court ruled on these issues, the case would be returned to this Court for appellate adjudication by the filing of a notice of appeal. But due to clerical error, our order remanding this case omitted the requisite constitutional language that in aid of our jurisdiction would have allowed this case to be returned expeditiously by filing of a notice of appeal.

After the trial court entered its ruling as to standing, St. Paul filed a notice of appeal and the appeal was entered upon our appellate docket as Case No. A02A1048. Because the underlying subject matter of this suit was garnishment and the remand order did not provide for the refiling of the appeal by notice of appeal, this Court entered an order on January 25, 2002, dismissing Case No. A02A1048.

St. Paul filed a timely motion for reconsideration of the order dismissing Case No. A02A1048. At this time, our Court became aware that the clerical omission in the remand order caused a result contrary to our original appellate intent and, finding no authority directly on point, elected by order entered on February 5, 2002, to grant St. Paul’s motion for reconsideration and to reenter Case No. A02A1048 upon our appellate docket. This was accomplished by utilizing the inherent and constitutional power of a court to take those acts necessary in aid of its jurisdiction under Art. VI, Sec. I, Par. IV of the Georgia Constitution of 1983.

On February 12, 2002, Ross filed a motion for reconsideration of the order of February 5, 2002, and a concurrent motion to dismiss the appeal in Case No. A02A1048. St. Paul filed a response, and Ross filed a supplemental brief in which both parties addressed the recent holding of the Supreme Court in Davidson v. Callaway, 274 Ga. 813 (559 SE2d 728) (2002).

Decided March 11, 2002

Goetz, Tibbs & Zahler, Charles M. Goetz, Jr., Scott M. Zahler, for appellant.

Willace D. MaGee, for appellees.

We have examined the able briefs submitted by both parties, and although we find that there are no cases directly on point, we conclude that the rationale in Davidson v. Callaway is controlling as to the issue of jurisdiction. In Davidson v. Callaway, the Supreme Court granted an application for discretionary appeal in a domestic relations matter, but after the appeal was filed, it remanded the case to the trial court to clarify its basis for an award of attorney fees. The trial court complied with the remand order, and Davidson, rather than filing a second application for discretionary appeal, brought a direct appeal from that ruling. The Supreme Court dismissed Davidson’s direct appeal holding that an appellate court’s jurisdiction over a particular case is at an end after the remittitur therefrom has been filed in the office of the lower court and expressly stated that when it remanded the matter to the trial court and the remittitur was received by the clerk of the lower court, its jurisdiction over the appeal ended. Id. at 814.

Although the Supreme Court had not decided Davidson v. Callaway, supra, when this Court exercised its constitutional power to reenter Case No. A02A1048 upon its appellate docket, it is accepted in Georgia that when no vested rights under prior law will be impaired, an appellate court should apply the law as it exists at the time of its judgment, rather than the previously existing law. Cheeley v. Henderson, 261 Ga. 498 (1) (405 SE2d 865) (1991). And, as Davidson v. Callaway provides clear guidance regarding the proper disposition of the issue before us, it is no longer appropriate for this Court to invoke its broad power under Art. VI, Sec. I, Par. IV in an attempt to retain jurisdiction over this appeal.

Considering the foregoing, the motion for reconsideration of Ross is granted and the order of this Court of February 5, 2002, reentering Case No. A02A1048 upon the appellate docket is vacated.

Appeal dismissed.

Blackburn, C. J., and Miller, J., concur.


author: Smith, Presiding Judge.

text:
    A01A1811.
    HYDE et al. v. SCHLOTZSKY’S, INC.
    (561 SE2d 876)
   Smith, Presiding Judge.

This case appears before us for the second time. As more fully set out in Schlotzsky’s, Inc. v. Hyde, 245 Ga. App. 888 (538 SE2d 561) (2000) (Schlotzsky’s I), several plaintiffs filed an action against Schlotzsky’s, Inc. and Tidwell Food Company alleging that they contracted Hepatitis A after eating tainted food at a Schlotzsky’s franchise owned and operated by Tidwell. Concluding that Tidwell was not a mere “alter ego” of Schlotzsky’s and therefore that Schlotzsky’s was not vicariously liable for any negligence of Tidwell, we reversed the trial court’s order denying summary judgment to Schlotzsky’s. Id. at 890. The plaintiffs asserted a separate negligence claim against Schlotzsky’s, however, which was not addressed in Schlotzsky’s I. The basis for that claim was that Schlotzsky’s failed to exercise ordinary care in performing its duty to insure that its franchisees, including the restaurant involved in this case, complied with “certain minimum standards for cleanliness and sanitation.” More specifically, appellants David and Mary Hyde and Beatrice Coker maintain that Schlotzsky’s knew one of its employees had violated its cleanliness policy and that if the company had followed its own policies concerning employee hygiene, none of its customers would have contracted Hepatitis A. The trial court granted summary judgment to Schlotzsky’s. Because we conclude that Schlotzsky’s did comply with its own policies concerning the correction of hygiene issues to the extent that it was able as a franchisor lacking the ability to control the day-to-day operations of the franchise, we affirm.

Under its franchise agreement with Tidwell, Schlotzsky’s undertook the duty of providing periodic inspections and evaluations, at its discretion, of the restaurant and reporting the results to Tidwell. The agreement farther required Tidwell to correct deficiencies indicated in the report within seven business days of receiving the report. If Tidwell failed to correct any deficiency within seven days, it would be in default under the agreement, giving Schlotzsky’s the option of terminating the franchise.

An independent company, Quality Concepts, Inc., was hired by Schlotzsky’s to perform these biannual inspections. Schlotzsky’s I, supra at 890. During a December 1996 inspection, Alice Bamabee, an inspector for Quality Concepts, observed a hand-washing violation by Terry Hughes, one of the food-service employees. Barnabee’s inspection report noted that Hughes needed to “wash hands after coughing and putting hands in pocket.” It appears that, unbeknownst to Schlotzsky’s and Hughes, sometime during his employment with the restaurant, Hughes may have been infected with the Hepatitis A virus. This report was forwarded to Schlotzsky’s. Matthew Clegg, the restaurant manager, testified that no one from Schlotzsky’s corporate headquarters discussed the hand-washing incident with him.

Another inspection was performed in May 1997 by Bamabee who again observed Hughes violating the hand-washing policy. She testified that “[h]e was working the cash register, was touching his face and then going down touching his apron.” She told Hughes to wash his hands and then informed Clegg about the incident. According to Barnabee, Clegg talked with Hughes and sent him home. Although Hughes returned to work two days later, he either was terminated or quit within a few weeks. A short time before the May 1997 inspection, appellants were infected with the Hepatitis A virus after allegedly eating contaminated food at the restaurant.

Relying in large part on the testimony of Schlotzsky’s director of training, Brad Lutz, and its president, John Wooley, appellants argue that after learning of a cleanliness violation, “it was Schlotz-sky’s policy to follow-up with the franchisee to ensure compliance with its hygiene standards.” They maintain that because Schlotzsky’s undertook the duty of following up on unsatisfactory inspection results, it was required to do so with ordinary care. According to appellants, Schlotzsky’s was negligent in this regard and increased the risk that its patrons would become infected by Hepatitis A.

As a general rule of law we agree with appellants that “one who assumes to act, even though gratuitously, may thereby become subject to the duty of acting carefully, if he acts at all.” (Citation and punctuation omitted.) Cunningham v. Nat. Svc. Indus., 174 Ga. App. 832, 837 (331 SE2d 899) (1985). See also Huggins v. Aetna Cas. &c. Co., 245 Ga. 248, 249 (264 SE2d 191) (1980) (adopting § 324A of the Restatement (Second) of Torts concerning liability to third persons for negligent undertaking of service). But we do not agree that testimony of Schlotzsky’s executives, or any other evidence relied on by appellants, demonstrates that Schlotzsky’s undertook the duty of insuring compliance with hygiene regulations following a violation to such an extent as to render it liable under a “negligent undertaking” theory. Lutz’s testimony shows only that while training new franchisees, he emphasized the importance of good hygiene and encouraged the franchisees to more closely supervise those employees in violation of hand-washing policies. On cross-examination, he agreed that a franchisee should “[p]rovide additional training” to a violating employee and “initially supervise more closely to ensure it doesn’t happen again.” Significantly, however, he did not state that Schlotz-sky’s undertook a duty of making sure this additional training and supervision occurred.

Neither does the testimony of Schlotzsky’s president demonstrate a policy of “following-up” on inspection reports to such an extent as to render Schlotzsky’s liable under a negligent undertaking theory. Wooley did indeed testify, as pointed out by appellants, that with respect to unacceptable inspection forms, Schlotzsky’s practice is to “[e]ngage in a dialogue with the franchisee to understand what the problem is and see that improvement is made, and that deficiencies are corrected.” In addition, we note the testimony of an employee of Quality Concepts, who stated that after an inspection occurs, the inspector sends the inspection results to Schlotzsky’s, who undertakes the “follow-up” responsibility. But these statements do not show that Schlotzsky’s undertook a duty to involve itself in the day-to-day operation of the restaurant or that it assumed the right to control the manner of executing the work in the restaurant. See Schlotzsky’s I, supra at 888-889. Schlotzsky’s was evaluating the restaurant’s compliance with its standards, and a franchisor’s reserving the right to do this “is not the equivalent of retaining day-to-day supervisory control of the franchisee’s business operations as a matter of law.” (Emphasis in original.) Id. at 890. Schlotzsky’s acted in its role as a franchisor, upholding its commitment to “achieving a certain level of quality and uniformity with the Schlotzsky’s system.” (Citation and punctuation omitted.) Id.

Decided March 12, 2002.

Cooper & Jones, Lance A. Cooper, Andrew IK Jones, Scott B. Cooper, for appellants.

Kilpatrick Stockton, Roderick C. Dennehy, Jr., Craig E. Bertschi, Gambrell & Stolz, Jennifer G. Cooper, for appellee.

Judgment affirmed.

Barnes and Phipps, JJ, concur.


text:
    A01A1812.
    THOMAS v. T & T STRAW, INC.
    (561 SE2d 495)
   Andrews, Presiding Judge.

Mildred Thomas appeals from the denial of her motion for new trial following the trial court’s order finding that her lease agreement with T & T Straw, Inc. (T & T) was binding and not void as against public policy. We agree and affirm.

On December 1,1997, Thomas leased a one-acre parcel of lánd to T & T for a twenty-year lease term with the option to renew the lease under the same terms for an additional twenty-year period. The annual rental rate was $600. After entering into the lease, T & T constructed an office on the lot as the headquarters for a pine straw processing business. By written correspondence dated February 5, 1999, Thomas notified T & T that beginning January 1, 2000, its new rental rate would be $500 per month rather than the contractual rate of $600 per year. T & T informed Thomas that it intended to abide by the terms of the original lease.

At some point after her February letter, Thomas erected a barricade at an outlet point of T & T’s property which prevented its trucks from leaving and entering that area of the property. Following intervention from the local sheriff’s department, the barricade was removed. On October 8, 1999, T & T filed a complaint for a temporary restraining order, interlocutory injunction, and declaratory judgment seeking to prevent Thomas from interfering with its use of the subject property and asking that the trial court declare the original lease agreement valid.

The trial court issued a temporary restraining order and, following a bench trial, entered an order finding that the lease was valid and binding upon the parties and not void as against public policy. The order also enjoined Thomas from interfering with or encroaching upon the property and prohibited her from erecting any further barricades on the property. Although the trial court found that Thomas violated Paragraph 15 of the lease agreement thus entitling T & T to attorney fees, it reserved ruling on the matter. Thereafter, Thomas retained new counsel and filed a motion for new trial. Because counsel did not appear or announce at the hearing on the motion, the trial court overruled and denied the motion for new trial and granted T & T attorney fees under the terms of the lease agreement. This appeal followed.

Thomas alleges that the trial court erred in holding that the lease agreement was not against public policy. She argues that the terms of the lease agreement are against public policy and unconscionable because, among other things, T & T has control of the property at the same rental rate for 40 years, has the absolute right to terminate the lease at any time without cause, and has the absolute right to alter, add onto, or improve the property without her consent. Thomas also argues that under the terms of the lease she has no rights or privileges to her property because she cannot assign any interest in the property without T & T’s prior consent, or sell without giving T & T the right of first refusal.

Generally, Georgia law recognizes and protects the freedom of parties to contract. NEC Technologies v. Nelson, 267 Ga. 390, 396 (4) (478 SE2d 769) (1996). This is true even though they may enter into contracts that are unreasonable or which may lead to hardship. Id.

Decided March 12, 2002.

Ellis R. Garnett, for appellant.

Douglas C. Rogers, for appellee.

Although Thomas argues otherwise, we cannot say that the lease agreement at issue was unconscionable simply because the terms appear to favor the lessee. See Imaging Systems Intl. v. Magnetic Resonance Plus, 227 Ga. App. 641, 644 (1) (490 SE2d 124) (1997) (contracting parties are free to contract to waive numerous and substantial rights absent a public policy interest). “An unconscionable contract is one abhorrent to good morals and conscience. It is one where one of the parties takes a fraudulent advantage of another.” (Citation, punctuation and emphasis omitted.) F. N. Roberts Pest Control Co. v. McDonald, 132 Ga. App. 257, 260 (3) (208 SE2d 13) (1974). It is an agreement that no sane person not acting under a delusion would make and that no honest person would take advantage of. See id.; Hall v. Fruehauf Corp., 179 Ga. App. 362 (346 SE2d 582) (1986) (physical precedent only).

There has been no showing that Thomas was fraudulently induced into signing the lease agreement, nor that she was delusional or insane at the time the contract was signed. Further, Thomas has failed to provide any argument or authority to demonstrate that the contract terms violate public policy. “It is well established that contracts will not be avoided by the courts as against public policy, except where the case is free from doubt and where an injury to the public interest clearly appears.” (Citation and punctuation omitted.) Hall, supra at 362.

While courts may look to matters such as the commercial reasonableness of the contract terms, the allocation of risks between the parties, and the purpose and effect of the terms in determining unconscionability, there must be evidence to support such a finding. See NEC Technologies, supra at 392 (1). The record here is devoid of any such evidence.

Parties should be entitled to contract on their own terms without the courts saving one side or another from the effects of a bad bargain. See William J. Cooney, P.C. v. Rowland, 240 Ga. App. 703, 705 (524 SE2d 730) (1999). The trial court did not err in holding that because the lease contract was neither unconscionable nor violative of public policy, it was binding upon the parties.

Judgment affirmed.

Eldridge and Miller, JJ, concur.

       We have considered the motion to dismiss appeal filed by T & T, and it is denied.

       Under the lease, “In case of collection of any amounts due by one party to the other hereunder or unlawful detainer because of breach of covenants herein, each party agrees to pay to the other, its attorney’s fees as provided under the laws of the State of Georgia.”


author: Mikell, Judge.

text:
    A01A1825.
    PINE POINTE HOUSING, L.P. v. LOWNDES COUNTY BOARD OF TAX ASSESSORS.
    (561 SE2d 860)
   Mikell, Judge.

In 1996, Pine Pointe Housing, L.P. completed construction of a 71-unit rental housing project in Valdosta. Through an agreement with the Georgia Financing and Housing Authority, the property received an allocation of low-income housing tax credits under Section 42 of the Internal Revenue Code of 1986, as amended. Pine Pointe’s limited partnership structure allows the tax credits to “flow through” to the benefit of its limited partners. As required by federal law, Pine Pointe agreed to rent the property to low-income tenants at below-market rates for 15 years and filed a restrictive covenant in the county deed records to that effect. The maximum credits available to the project were $448,120 per year for ten years.

On July 28, 1997, Pine Pointe appealed the 1997 ad valorem tax assessment on the property to the Lowndes County Board of Equalization. The Lowndes County Board of Tax Assessors then appealed the ruling of the board of equalization to the superior court, which held a de novo hearing on November 20, 2000. At issue was the fair market value of the property as of January 1, 1997, and, in particular, how to value the property given the rental restrictions and federal tax benefits applicable to the project. On November 30, 2000, the trial court issued its order establishing the fair market value of the property at $4,709,000.

In making its calculation of fair market value, the trial court found that (1) the restrictive covenants of record and binding upon the property must be considered in determining the fair market value of the property, (2) the mortgage equity or debt equity income approach to valuation is legal under Georgia law and applicable to the property, (3) the tax credits associated with the property cannot be sold, but run with the property, and (4) the tax credits are associated with the restrictive covenants and must be considered in determining the fair market value of the property. The value of $4,709,000 was supported by testimony of Henry Wise, an expert witness presented by Pine Pointe. Under his “mortgage equity” income approach, Wise valued the property at $4,800,000, taking into account the value of the tax credits, the mortgage, and project cash flow. The witness confirmed that $91,000 must be deducted from this figure to account for nontaxable personalty included in the project value.

In this appeal, Pine Pointe claims that the trial court erred in (1) using Section 42 income tax credits in determining fair market value, (2) denying its motion for a directed verdict because the Lowndes County Board of Tax Assessors failed to present a permissible method for establishing fair market value, and (3) denying its motion to dismiss because the Board failed to ensure a timely hearing of its appeal to the superior court. We find no error and affirm.

1. Pine Pointe claims that the trial court erred in considering the Section 42 tax credits in calculating the property’s fair market value. We disagree. In support of its claim, Pine Pointe argues that (1) the tax credits had, in economic if not technical effect, been sold, and thus had no value to Pine Pointe, (2) consideration of the tax credits is inconsistent with the Georgia appraisal procedures manual, (3) tax credits cannot be considered income for accounting purposes, (4) the trial court’s ruling is inconsistent with principles established by the case law, and (5) OCGA § 48-5-2 (3) (B.l), effective as of July 1, 2001, prohibits consideration of the tax credits. “[T]he standard of review of a non-jury trial of disputed material facts is the clearly erroneous test under OCGA § 9-ll-52[;] . . . the plain legal error standard of review applies, where the appellate court determines that the issue was of law, not fact. . . ,” With some exceptions, property is taxed at its fair market value. For purposes of our review, we are guided throughout by the General Assembly’s definition of fair market value: “the amount a knowledgeable buyer would pay for the property and a willing seller would accept for the property at an arm’s length, bona fide sale.”

Under current law, a number of different factors must be considered in arriving at fair market value:

The tax assessor shall consider the following criteria in determining the fair market value of real property: (i) Existing zoning of property; (ii) Existing use of property, including any restrictions or limitations on the use of property resulting from state or federal law or rules or regulations adopted pursuant to the authority of state or federal law; (iii) Existing covenants or restrictions in the deed dedicating the property to a particular use; and (iv) Any other factors deemed pertinent in arriving at fair market value.

The taxing authorities are required to apply external factors, such as zoning and deed restrictions, in determining fair market value, including “[a]ny other factors deemed pertinent.” Evidence shows that the Section 42 tax credits were pertinent to the fair market value of the property. The credits have value to a taxpayer with federal income tax liability and can be “passed through” a partnership structure to those taxpayers. Because Section 42 tax credits are generated by a designated property, a third party would pay for the value as part of that property’s sale price in a bona fide, arm’s length transaction. Furthermore, the tax credits go hand in hand with restrictive covenants that require the property to charge below-market rent. By statute, these restrictions are required to be considered by the assessor. If viewed in isolation, the rental restrictions would artificially depress the value of the property for tax valuation purposes. The fair market value determined by the trial court is supported by an appraisal that takes into account both the value of the tax credits and the rental income from the property as reduced by the rental restrictions. Accordingly, we find that the trial court’s calculation of fair market value was consistent with the law and the evidence. Although we will consider them in turn below, Pine Pointe’s arguments to the contrary have no merit.

(a) Pine Pointe contends that the tax credits had, in practical if not legal effect, been sold, and so the tax credits had no value to Pine Pointe. Evidence shows that 99 percent of the tax credits were allocated by the partnership to its limited partner. Nevertheless, if a property eligible for Section 42 tax credits is sold, then the subsequent owner of the property is entitled to the future tax credits associated with the property. Furthermore, the ownership structure of Pine Pointe is irrelevant to the value of the project to a third party.

Pine Pointe also argues that the Section 42 tax credit does not necessarily follow the property because a new purchaser could choose not to comply with the rental restrictions, and thus lose the credit, and that while the tax credits are payable for ten years, the rental restrictions are in place for fifteen years. The rental restrictions associated with the tax credits were taken into account by the expert witnesses in arriving at a valuation amount. The argument with respect to future noncompliance by a purchaser of the property is groundless. As a matter of pure speculation, a future owner could choose to act in a way that would eliminate the credit, but it does not change the law that any tax credit generated is associated with the property nor the evidence that an available tax credit has value to a third-party purchaser. Furthermore, the Internal Revenue Code has provisions which encourage a buyer and seller of property generating Section 42 tax credits to ensure the property continues to be operated as a low-income rental project.

(b) Pine Pointe further argues that considering Section 42 tax credits in property valuation would not comply with the Georgia Department of Revenue’s appraisal procedures manual. Regulations require county property appraisal staff to follow this manual. The manual provides: “Real property does not include the intangible benefits associated with the ownership of real estate, such as the goodwill of a going business concern.” Nevertheless, the Section 42 tax credits are not the type of benefit associated with owning real estate, such as goodwill, that cannot be taken into account in determining the value of a property to a third party. Goodwill is a “favor which the management of a business wins from the public,” and as such is more associated with a business operation than the property on which the business is located. Anticipated rental income associated with a property, although intangible in nature, may clearly be used in property valuation. Section 42 tax credits provide a similar stream of value tied solely to the property.

Pine Pointe also argues that because the tax credits reduce income taxes, and because the manual provides that income taxes cannot be considered in using an income and expense analysis to value a property, that it would be inconsistent with the manual to consider the tax credits. However, an owner’s income tax liability is an expense not directly related to property ownership, unlike the tax credits, which are generated as to amount by the property itself independent of the owner.

(c) Pine Pointe contends that the tax credits are not “income,” and therefore cannot be used in valuing a property under the income method. Tax credits are not mentioned in the components which may be used to compute value under applicable regulations. The list, however, is not exclusive, and consideration of Section 42 tax credits is not forbidden.

(d) Citing O’Quinn v. Ellis and certain decisions of foreign courts, Pine Pointe further argues that precedential authority supports its position. In O’Quinn our Supreme Court held that although a tobacco allotment runs with the land, and a farm with a tobacco allotment was worth more than one without, that the allotment could not be considered in valuing a property for ad valorem tax purposes. The Supreme Court indicated that “[t]o authorize such a distinction would permit the value of property to be based upon the volume of business done on such land.” The Supreme Court also compares the tobacco allocation to an exclusive distributorship arrangement. As so described by the Supreme Court, a tobacco allotment does not appear to be analogous to a Section 42 tax credit, the amount of which is not derived from business volume.

We also noted in Coastal Equities v. Chatham County Bd. of Tax Assessors, that “the Supreme Court [in O’Quinn] held that using a tobacco allotment as the only permissible distinguishing factor among otherwise comparable cultivated lands was a defective method of valuation when other possible distinguishing factors were ignored.” Here, the tax credits are not viewed in isolation by the trial court, but along with the associated restrictions on the use of the land, in order to arrive at a fair market value which considers all applicable factors. Accordingly, we find O’Quinn is not so similar as to be controlling.

Foreign authority cited by Pine Pointe, including Cascade Court Ltd. Partnership v. Noble and Bayridge Assoc. Ltd. Partnership v. Dept. of Revenue, are not persuasive. Cascade Court’s conclusion is based on the treatment of Section 42 tax credits as intangible personal property, a designation the court makes without supporting authority or analysis. The court in Bayridge Assoc. is primarily concerned with whether the Section 42 tax credit is a type of governmental restriction, defined by statute, which under Oregon law cannot be considered in determining market value. Other foreign courts have concluded that Section 42 tax credits should be considered in determining the fair market value of real property.

The parties both rely on the United States Supreme Court’s opinion in Randall v. Loftsgaarden. The Court noted that federal income tax credits have no value in and of themselves because they must be applied against a taxpayer’s federal income tax liability, and that the receipt of federal income tax credits could not be considered income for purposes of the federal tax code. But that does not mean that the tax credits do not influence a property’s fair market value, which is the issue here.

(e) Pine Pointe finally contends that a recent change in the law requires that we reverse. After the trial court rendered its decision, the General Assembly added subparagraph (3) (B.l) to OCGA § 48-5-2: “The tax assessor shall not consider any income tax credits with respect to real property which are claimed and granted pursuant to either Section 42 of the Internal Revenue Code of 1986, as amended, or Chapter 7 of this title in determining the fair market value of real property.”

This statute is effective as of July 1, 2001, and does not provide for a retroactive effect. “A statute is never to be given a retroactive operation unless such construction is absolutely demanded.” Pine Pointe argues that the law is applicable to our review because it is the general rule that the appellate court shall apply the law as it exists at the time of its judgment, absent impairment of vested rights under the previous law. As shown by our analysis, however, the consideration of Section 42 tax credits was previously warranted in valuing property for tax purposes, and so the addition of subparagraph (3) (B.l) is a substantive change in the law and cannot alter a tax liability which accrued four and a half years before its effective date.

2. Pine Pointe claims that the trial court erred in-denying its motion for directed verdict at the close of the Board’s case. Pine Pointe claims the Board’s expert witnesses did not use an authorized method to calculate the fair market value of the property. A motion for directed verdict should “be granted only when no conflict exists in the evidence and the evidence presented, with all reasonable inferences therefrom, demands a particular verdict.”

Witness Stevens used the discount cash flow method of valuation, which Pine Pointe argues applies only to leases. Witness Bajalia used a rent capitalization method that Pine Pointe contends required sample data from comparable properties, which was unavailable. Although Pine Pointe accepts some of the valuation models presented by witness Wise, it argues that Wise had not testified at the time the Board completed the presentation of its case and the motion for directed verdict was made. We find Pine Pointe’s argument to be flawed, however, because the allowable methodology for conducting an appraisal is not as restrictive as Pine Pointe contends. Unusual circumstances must be considered in determining fair market value, and all appraisals are subject to compliance with the statutory definition of fair market value. Furthermore, although the appraiser’s manual allows the discounted cash flow method to value a lease, it does not limit the approach to leases only. Accordingly, the trial court did not err in denying Pine Pointe’s motion for a directed verdict.

Decided March 12, 2002

Coleman, Talley, Newbern, Kurrie, Preston & Holland, Thompson Kurrie, Jr., Edward F. Preston, for appellant.

3. Lastly, Pine Pointe argues that the trial court erred when it denied its motion to dismiss the Board’s appeal from the decision of the board of equalization. If an appeal is made from the ruling of the board of equalization to the superior court, the appeal must be heard “at the first term following the-filing of the appeal unless continued by the court upon a showing of good cause.” The burden is on the appealing party to have the action tried at the first term, but a failure to do so is not fatal if a reasonable excuse or reasonable delay is shown. The question of whether reasonable excuse or reasonable failure has been shown is a matter within the discretion of the trial court.

The Board’s appeal to the superior court was not heard at the first term of court following its filing, but was continued. Pine Pointe agreed to the continuances in correspondence with the trial court. Evidence also shows that during the term in question, Pine Pointe had not completed its response to the Board’s discovery requests. The trial court denied Pine Pointe’s motion to dismiss because it found a reasonable excuse why a hearing was not obtained during the first term of court following the filing of the appeal from the board of equalization, and there is some evidence to support the finding. We see no abuse of discretion, and the trial court’s denial of Pine Pointe’s motion to dismiss is affirmed.

Judgment affirmed.

Blackburn, C. J., and Pope, P. J., concur.

Elliott & Blackburn, Walter G. Elliott II, for appellee.

James F. Grubiak, Kelly J. Pridgen, Karen G. Thomas, Michael P. Ludwiczak, amici curiae.

        Glover v. Ware, 236 Ga. App. 40, 45 (3) (510 SE2d 895) (1999).

       OCGA § 48-5-6.

       OCGA § 48-5-2 (3).

       OCGA § 48-5-2 (3) (B).

       OCGA § 48-5-2 (3) (B) (iv).

       OCGA § 48-5-2 (3) (B) (iii).

       26 USC § 42 (d) (7).

       See OCGA § 48-5-3 (liability of property for taxation shall not be affected by the individual or corporate character of the property owner).

       26 USC § 42 (d) (7).

       For instance, under 26 USC § 42 (j) (6) (B), if property which has accumulated Section 42 tax credits is sold, in order to keep the benefits of the previously accrued tax credits, the seller must post a bond with the Internal Revenue Service and be reasonably assured that the property continues to be operated as a qualifying low-income project by the new owner.

       Ga. Admin. Code Rule 560-11-10.

       Ga. Admin. Code Rule 560-11-10-.09 (1).

       Ga. Admin. Code Rule 560-11-10-.02 (1) (w).

       (Punctuation omitted.) NAACP v. Overstreet, 221 Ga. 16, 29 (4) (a) (142 SE2d 816) (1965).

       Ga. Admin. Code Rule 560-11-10-.09 (4) (c) (1) (i).

       Id.

       Id.

       224 Ga. 328, 330 (161 SE2d 832) (1968).

       Id. at 330 (2).

       Id.

       26 USC § 42 (a) (2) provides the credit is calculated using the “qualified basis of each qualified low-income building.”

       201 Ga. App. 571, 572 (1) (a), n. 1 (411 SE2d 540) (1991).

       105 Wn. App. 563, 571 (20 P3d 997) (2001).

       321 Ore. 21 (892 P2d 1002) (1995).

       See In re Ottawa Housing Assn., 27 Kan. App.2d 1008 (10 P3d 777) (2000); Parkside Townhomes Assoc. v. Bd. of Assessment Appeals of York County, 711 A2d 607, 611 (Pa. Commw. 1998).

       478 U. S. 647 (106 SC 3143, 92 LE2d 525) (1986).

        J. Scott Rentals, Inc. v. Bryant, 239 Ga. 585, 587 (238 SE2d 385) (1977).

       See Pearson v. City of Atlanta, 231 Ga. App. 96, 97 (2) (499 SE2d 89) (1998).

       See Ross v. Lettice, 134 Ga. 866, 868 (68 SE 734) (1910) (a statute is impermissibly retroactive if it impairs or destroys vested rights).

        Crump v. McDonald, 239 Ga. App. 647, 648 (1) (520 SE2d 283) (1999).

       Ga. Admin. Code Rule 560-11-10-.01 (2).

       OCGA § 48-5-2; Ga. Admin. Code Rule 560-11-10-.09 (4).

       Ga. Admin. Code Rule 560-11-10-.09 (4) (c) (2) (II) (v).

       OCGA § 48-5-311 (g) (4) (A).

       See Spencer v. Lamar County Bd. of Tax Appeals, 202 Ga. App. 742, 744 (2) (415 SE2d 332) (1992).

        DeKalb County Bd. of Tax Assessors v. Stone Mountain Indus. Park, 147 Ga. App. 503, 504 (249 SE2d 318) (1978).