author: Smith, Presiding Judge.

text:
    A01A0520.
    In the Interest of K. C. et al., children.
    (549 SE2d 737)
   Smith, Presiding Judge.

The parents of K. C., C. C., J. H. C., and W. T. C. appeal from the orders of the Juvenile Court of Elbert County terminating their rights in four of their children. They raise four enumerations of error which, with minor differences, all bear on the sufficiency of the evidence to support the trial court’s judgments. We find that the evidence was sufficient to support the judgments, and we affirm all four orders.

The record shows that K. C., J. H. C., and W. T. C. twice came under the supervision of the Clarke County Department of Family & Children Services (DFACS) and that they remained in foster care for approximately one year before being reunited with their parents. The parents had been married ten years at the time of the hearing on the petition and have a history of incarcerations and probations for passing bad checks. The mother has a total of seven children. In addition to those at issue here, she has two children from a prior marriage who live with the mother of her former husband. She also has a daughter from that marriage who lives with her maternal grandmother. In September 1996, when C. C., the youngest child, was approximately nine months old, the parents abandoned all four children when they learned that the police were looking for the mother to serve an arrest warrant for probation violation. They asked the maternal grandmother to take care of the children and left to work and pay off past probation fines. The grandmother agreed and picked up the children with another woman, who had once before cared for C. C., the youngest child. C. C. has been in the care of this woman ever since. The grandmother kept the three older children until the end of November, when DFACS filed a deprivation petition and the children were placed in foster care.

Approximately one year later, DFACS brought a petition seeking the termination of the parents’ rights in the children. After a hearing before an associate juvenile court judge, to which both parents were brought from prison, the petition was granted. The mother and father requested a de novo review, and a de novo hearing before a juvenile court judge was conducted in juvenile court. In the interim, visitation was granted to the parents but rescinded when the visits with the children did not go well, particularly a visit over the Thanksgiving holiday. A court-ordered evaluation of the children and the parents was conducted by a psychologist. After considering the evidence and the evaluation, the juvenile court found clear and convincing evidence supporting a decision to terminate the parents’ rights in each of the children. The parents bring this appeal.

1. A two-step process must be used when considering whether to terminate parental rights. First, pursuant to OCGA § 15-11-94 (a), a court must find clear and convincing evidence of parental misconduct or inability. Parental misconduct or inability exists when (i) the child is deprived, as that term is defined in Code section 15-11-2 (8); (ii) lack of proper parental care or control is the cause of the child’s deprivation; (iii) the cause of deprivation is likely to continue or not be remedied; and (iv) it will cause or is likely to cause serious physical, mental, emotional, or moral harm to the child. OCGA § 15-11-94 (h) (4) (A). Second, if the court finds clear and convincing evidence of parental misconduct or inability, it then considers whether termination of parental rights is in the best interest of the child, considering the child’s physical, mental, emotional, and moral condition and needs, including the child’s need for a secure and stable home. In the Interest of J.H., 244 Ga. App. 788, 791 (2) (536 SE2d 805) (2000).

In three enumerations, the parents contend that the trial court did not make a specific finding of present unfitness that included the period of time between the original termination order and the rehearing and that even had such finding been made, the evidence in the record does not support it. We do not agree.

We note initially that we know of no statute or court rule that permits a de novo evidentiary hearing to be held on reconsideration, as was done here. See In the Interest of M. E. T, 197 Ga. App. 255, 256-257 (1) (398 SE2d 30) (1990). Both OCGA § 15-11-21 (e) and Uniform Juvenile Court Rule 19.2 require the juvenile court judge, upon request by a party, to review the evidence presented at the original hearing before the associate juvenile court judge.

The evidence at the original hearing clearly was sufficient to show the parents’ unfitness. Both parents were incarcerated for much of the time the children were in foster care. The children reported to the foster mother that they had been sexually abused by two friends of their father. The foster mother of the three older children testified that all three children were in therapy, seeing a psychologist regularly, and making progress. Even discounting the evidence that the children were sexually abused in their parents’ home, knowledge of which the parents denied, their abandonment of the children and their cavalier attitude regarding having others take care of the children, coupled with their history of incarcerations and their present incarceration, amply showed the parents’ unwillingness or inability to care for their children.

In addition, the parents admitted they had not maintained regular employment or a stable home and had not provided financial support for their children while they were working and the children were in the care of others. They did not remain in consistent contact with their children. When they did have contact with the children, the children reacted poorly. Considering only this evidence, a finding of present unfitness was well supported. The court was required to base its decision on more than the parents’ promises of responsible behavior in the future, when their past behavior shows clear irresponsibility. See In the Interest of J. M. M., 244 Ga. App. 171, 176 (534 SE2d 892) (2000).

Although unnecessary, the new evidence presented at the de novo rehearing simply reinforced this showing. Since the Thanksgiving visitation W. T. C.’s problems had escalated. He was suspended from school for fighting, and immediately before the rehearing he was hospitalized in a psychiatric facility for observation. The juvenile court’s findings upon rehearing reflect this evidence. The orders specifically refer to the court-ordered psychological evaluation of the children and their parents, which was done after the original termination order. This evaluation confirmed the children’s problems and special needs, as well as the opinion that the parents would be unable to meet those needs. Although the evaluation was completed several months before the rehearing, contrary to the parents’ contention, this evidence was not “stale.” Even “[e]vidence that is a couple of years old is not necessarily outdated, as there will be some passage of time between the removal of the child [ren] and the termination hearing.” (Footnote omitted.) In the Interest of A. M. L., 242 Ga. App. 121, 123 (1) (c) (527 SE2d 614) (2000).

Clearly, the juvenile court judge’s findings included that of present unfitness.

2. We find no merit in the parents’ contention that the orders failed to set out sufficient findings to support the juvenile court’s conclusion that continued deprivation was likely to cause serious mental, emotional, or moral harm to the children. Testimony from the foster mother and the caseworker that visits with their parents upset the children greatly and disrupted their behavior demonstrates the harm the children suffered. The court-ordered evaluation concluded that even “average” parents would find it extremely difficult to manage the children because their problems were so severe. These parents have amply demonstrated their lack of adequate parenting skills. No evidence was presented other than the parents’ promises for the future that their parenting problems would not continue. And the evidence supports a finding that the children would suffer serious harm if returned to the parents. See In the Interest of J. K., 239 Ga. App. 142,146 (1) (520 SE2d 19) (1999). The juvenile court did not err in terminating the rights of the parents.

Decided May 23, 2001.

Peters & Anderson, James S. Grimes, for appellants.

Thurhert E. Baker, Attorney General, Dennis R. Dunn, Deputy Attorney General, William C. Joy, Senior Assistant Attorney General, Shalen S. Nelson, Assistant Attorney General, Susanne F. Burton, for appellee.

Judgment affirmed.

Barnes and Phipps, JJ, concur.

       At that time, C. C. had not been born.

       C. C.’s placement was retained with the person who had been caring for him.

       In 2000, the General Assembly renumbered these Code sections.


source: Caselaw Access Project

license: Public Domain

text:
    A01A0605.
    AMENT v. BENNETT’S FINE JEWELRY et al.
    (549 SE2d 501)
   Smith, Presiding Judge.

Mattie Ament brought this action against Bennett’s Fine Jewelry and its proprietor, Don Bennett (“Bennett”), alleging that the store substituted a flawed diamond in a ring Ament brought in to be reset. Bennett answered and counterclaimed for its bill for the setting, appraisal, and resetting of the ring. The case was tried before a jury, and Bennett presented evidence from the owner of a jewelry business in Birmingham, Alabama, whose father, now deceased, had appraised the diamond for Ament in 1979. This witness reappraised the diamond at Bennett’s request and compared a copy of the 1979 appraisal report and the diamond itself. He testified that in his opinion the stone was “without a doubt” the same as that in the ring appraised by his father in 1979.

The jury returned a verdict in favor of Bennett on Ament’s claim and awarded $254.40 on Bennett’s counterclaim. Ament’s motion for new trial was denied, and she appeals, asserting as her sole enumeration of error the trial court’s grant of Bennett’s motion in limine concerning evidence of disputes between Bennett and other customers. Finding no error, we affirm.

The evidence Ament sought to introduce concerned three incidents of complaints by other customers of Bennett. In two of the incidents, Ament made a proffer of the relevant facts; in the third, she offered the deposition of the customer. One customer complained that she delivered a ring to Bennett and Bennett lost it. Another customer contended that she had a ring repaired at Bennett’s shop that later turned her finger green. No time frame was specified for either of these incidents. The remaining customer contended that approximately two and one-half to three years before Ament delivered her ring to Bennett, she brought several rings and earrings to Bennett to create a new ring out of the old stones. She decided that the work would be too expensive and asked for her jewelry back. She testified that Bennett lost one of the rings and substituted poor quality diamonds in the earrings. She sued Bennett for $3,500 for the value of the lost ring, recovering $602. She has never sued, however, for the alleged substitution of the diamonds and never made any claim for them, although on redirect examination she testified that she had “mentioned” the earrings to the trial judge in her own case. After a recess to consider the matter, the trial court excluded this evidence, but noted that it would revisit the issue if punitive damages were awarded.

“The general character of the parties and especially their conduct in other transactions are irrelevant matter unless the nature of the action involves such character and renders necessary or proper the investigation of such conduct.” OCGA § 24-2-2.

Testimony as to what appellee had done in the past and on other jobs has little bearing on what happened in the transaction in question. In a controversy between two persons regarding a given subject matter, evidence as to what occurred between one of them and a third person with reference to a similar, though entirely distinct, transaction is irrelevant.

(Citations and punctuation omitted.) Complete Trucklease v. Auto Rental & Leasing, 160 Ga. App. 568, 571 (3) (288 SE2d 75) (1981). While evidence of “similar fraudulent schemes” may be admissible to demonstrate “fraudulent intent in the transaction in controversy,” Deckner-Willingham Lumber Co. v. Turner, 171 Ga. 240, 244 (1) (155 SE 1) (1930), this exception is not without limits: “To render such evidence admissible, it must be shown that the other transactions were fraudulent, and it must appear that they were so connected in point of time and otherwise with the one in issue as to make it apparent that all were proposed or carried out in pursuance of a common fraudulent purpose.” (Citations omitted.) Id.

Decided May 23, 2001.

Gilbert J. Murrah, for appellant.

Smith & Perry, Ralph C. Smith, Jr., for appellees.

The admission or exclusion of collateral evidence by the trial court is reviewed under an abuse of discretion standard. Roberts v. Gunter, 251 Ga. 276, 281 (4) (304 SE2d 369) (1983). Here, with respect to two of the incidents sought to be admitted, Ament introduced no evidence whatsoever regarding the time at which they occurred, nor did she demonstrate any factual connection to the dispute in this case. The third incident occurred between two and one-half to three years earlier, a lapse of time from which the trial court, in its discretion, could have concluded that it was not “so connected in point of time” as to show a “common fraudulent purpose.” Deckner-Willingham Lumber, supra at 244.

Although the witness belatedly accused Bennett of similar conduct to that at issue here, those accusations were not included in her legal action against Bennett, and she acknowledged that she had never pursued this claim. This testimony was seized upon by Bennett to dispute the witness’s allegations, and the admission of such evidence would have required the jury to make a determination of the merits of this collateral claim in addition to those of the main claim before it.

Although evidence of collateral matters may throw some remote light on the main issues of the cases, it is nevertheless necessary that trial judges be vested with some discretion as to the admissibility of this type of evidence. Otherwise, the whole course and progress of the trial could become converted to the determination of collateral issues rather than the main one.

(Citation and punctuation omitted.) Roberts, supra at 281. In view of the great latitude given the trial court in controlling the admission of evidence on collateral issues, Witt v. Robbins, 163 Ga. App. 182, 184 (4) (292 SE2d 894) (1982), we cannot say that the trial court abused its discretion in excluding this evidence from consideration.

Judgment affirmed.

Barnes and Phipps, JJ, concur.


author: Barnes, Judge.

text:
    A01A0665.
    A01A0666.
    HARRIS v. DISTINCTIVE BUILDERS, INC. DOLIVE et al. v. DISTINCTIVE BUILDERS, INC.
    (549 SE2d 496)
   Barnes, Judge.

This appeal involves negotiations between Distinctive Builders, Inc. (“DB”) and Richard Harris, co-trustee of the Trust U/W of Katie Allen Harris (“Trust”), to purchase 3.03 acres of land off Northside Drive in Atlanta owned by the Trust. The primary issue before us is whether the parties entered into a binding sales contract. We hold that they did not and therefore reverse that portion of the trial court’s order finding otherwise.

The parties do not disagree on the underlying facts, just on the underlying motivations and legal consequences. Harris and his wife jointly owned the property at issue here. When Harris’s wife died, her will directed that a percentage of her assets be placed in trust for the benefit of Harris and the couple’s three daughters. To fund part of the trust, Harris deeded his interest in the property to the trust, of which he was a trustee along with his wife’s cousin by marriage, Earl Dolive. Harris then listed the property with a real estate broker, along with a separate, adjoining piece of property that included his house.

DB expressed interest in purchasing the property, and after going back and forth on the price, DB faxed an offer to Harris’s real estate agent to purchase the property for $425,000. Harris signed the document, and his real estate agent faxed a copy back to DB with a cover page containing the following language: “Dick initialed the fax copies. He is getting the trustee to sign off tomorrow. I’ll deliver your original late tomorrow. Thanks, P.” Upon receiving the fax, DB’s president called the agent and asked, “What’s this bit about needing a trustee to sign it?” The agent responded that Harris said he needed to get another signature.

Harris then took the original document to his co-trustee, Dolive, who declined to sign it. Dolive explained that he had promised to give the adjoining landowner, Charles Loudermilk, a chance to top any bid made on the property. The day after receiving the faxed document and cover page, DB’s president, who signed the offer on DB’s behalf, wrote to Harris and his agent threatening to sue them for damages exceeding $1 million if they did not sell the property to him. Louder-milk did top DB’s bid and purchased the property for $435,000. Harris never delivered the original document to DB.

DB sued in four counts: (1) breach of contract against the Trust, and against Harris and Dolive individually and as co-trustees; (2) fraud against “the defendants”; (3) tortious interference with contract against Dolive and Loudermilk and (4) interference with enjoyment of property against Harris, Dolive and Loudermilk.

Harris, Dolive, Loudermilk and the Trust moved for summary judgment on all counts, and DB moved for summary judgment against Harris on the breach of contract claim. The trial court held that Harris and DB did enter into a binding contract and granted summary judgment to DB against Harris on the breach of contract claim. The trial court further granted summary judgment to Dolive and the Trust on DB’s breach of contract claim; denied summary judgment to Dolive, Loudermilk and the Trust on DB’s tortious interference with contract claim; granted summary judgment to Harris, Dolive and Loudermilk on DB’s tortious interference with property claim and denied summary judgment to Harris on DB’s fraud claim. DB has not appealed the trial court’s grant of summary judgment to Harris, Dolive and Loudermilk on its tortious interference with property claim or its grant of summary judgment to Dolive and the Trust on its breach of contract claim.

In Case No. A01A0665, Harris appeals the trial court’s grant of summary judgment to DB on its breach of contract count and its denial of his motion on that count. Harris also appeals the trial court’s denial of summary judgment to him on DB’s fraud claim. In Case No. A01A0666, Dolive, Loudermilk and the Trust appeal the trial court’s denial of summary judgment to them on DB’s tortious interference with contract claim.

On appeal from a grant or denial of summary judgment, this Court conducts a de novo review of the record, construing the evidence and all inferences therefrom in favor of the nonmoving party. Maddox v. Southern Engineering Co., 231 Ga. App. 802, 803 (500 SE2d 591) (1998); Lane v. Spragg, 224 Ga. App. 606 (481 SE2d 592) (1997).

Case No. A01A0665

1. The threshold issue before us is whether Harris and DB entered into a contract by virtue of DB signing and faxing the purchase agreement to Harris, then Harris signing the agreement and having his agent fax a copy back with a cover page that said: “Dick initialed the fax copies. He is getting the trustee to sign off tomorrow. I’ll deliver your original late tomorrow. Thanks, P.”

“To constitute a valid contract, there must be parties able to contract, a consideration moving to the contract, the assent of the parties to the terms of the contract, and a subject matter upon which the contract can operate.” OCGA § 13-3-1. Additionally, a contract for the sale of land must be in writing. OCGA § 13-5-30 (4). The construction of a contract is a question of law for the court unless, after the application of the rules of construction, the contract remains ambiguous. Century 21 Pinetree Properties v. Cason, 220 Ga. App. 355, 358 (2) (d) (469 SE2d 458) (1996).

Contract construction involves three steps: (1) Is the language clear and unambiguous? If it is, the court simply enforces the contract according to its terms. If it is ambiguous, (2) the court must apply the rules of contract construction to resolve the ambiguity. If the ambiguity cannot be resolved, (3) the issue of what the ambiguous language means and what the parties intended must be resolved by a jury. CareAmerica v. Southern Care Corp., 229 Ga. App. 878, 880 (1) (494 SE2d 720) (1997). While looking at the contract to determine whether it is clear and unambiguous, “[a] 11 contemporaneous writings shall be admissible to explain each other.” OCGA § 24-6-3 (a).

The statute [(OCGA § 24-6-3 (a))] does not restrict this particular subsection to admit contemporaneous documents only if there is an ambiguity in the documents. In fact, subsection (b) of OCGA § 24-6-3 deals with the admission of parol evidence to explain ambiguities. In Baker v. Jellibeans, Inc., 252 Ga. 458, 459 (1) (314 SE2d 874) (1984), the Supreme Court declared that contemporaneous writings should be considered even if one of the writings purports to contain “the entire understanding of the parties hereto with respect to the transactions contemplated hereby” and even if the writings are not cross-referenced.

Duke v. KHD Deutz of America Corp., 221 Ga. App. 452 (471 SE2d 537) (1996). In this case, while the purchase agreement appears to be complete in and of itself, we must look to all contemporaneous writings to determine the parties’ intent.

“The intention of the parties may differ among themselves. In such case, the meaning placed on the contract by one party and known to be thus understood by the other party at the time shall be held as the true meaning.” OCGA § 13-2-4. “In some cases, the only evidence of the parties’ intent is the express language of the contract. But in other cases, such as this one, The circumstances surrounding the making of the contract, such as correspondence and discussions, are relevant in deciding if there was a mutual assent to an agreement.’ ” Legg v. Stovall Tire & Marine, 245 Ga. App. 594, 596 (538 SE2d 489) (2000).

Harris’s agent faxed the contract back to DB with a contemporaneous cover sheet explaining that Harris’s acceptance of the offer was conditioned on the co-trustee signing the contract. The cover page even specifies that the original would be delivered to DB once both signatures were obtained. Because Harris’s acceptance was conditioned on his obtaining the second trustee’s signature, and that signature was never obtained, DB’s offer to buy the property for $425,000 was never accepted and the parties did not enter into a binding contract. “When the intent is manifest that the contract is to be executed by others than those who actually sign[ed] it, it is inchoate and incomplete, and does not take effect as a valid and binding contract.” Peacock v. Horne, 159 Ga. 707, 723 (2) (126 SE 813) (1925). Because Harris clearly expressed that his acceptance was conditional and never delivered the original to DB,

[t]his case does not come within that class of cases wherein it is held that a party who signs and delivers an instrument is bound by the obligations it contains, although it is not executed by all the parties for whose signatures it was prepared, where there is nothing to indicate an intention on the part of him who signs not to be bound thereby until it is signed by others, which intention is brought home to the obligee therein, and where there is no express agreement or manifest intent to such effect, and where there is no loss of remedy by way of indemnity or contribution, by failure of other parties to execute the instrument.

(Punctuation omitted.) Abernathy v. Grant, 232 Ga. 880, 882 (1) (209 SE2d 210) (1974), citing Peacock, supra. Further, the statement, “He is getting the trustee to sign off tomorrow. I’ll deliver your original late tomorrow,” “indicates that this [document] did not purport to be an acceptance of the offer, but on the other hand that the offer would be accepted by the signed [original] contract.” Holland v. Riverside Park Estates, 214 Ga. 244, 247 (104 SE2d 83) (1958).

Johnson v. Sackett, 256 Ga. 552 (353 SE2d 419) (1986), relied on by DB, is distinguishable from the case at bar, because the document in Johnson included no contemporaneous writings or any other evidence to indicate that the seller’s acceptance was conditional.

We therefore reverse that portion of the trial court’s order granting summary judgment to DB on its breach of contract claim against Harris and also reverse that portion of the order denying summary judgment to Harris on this count.

2. Harris also appeals the trial court’s denial of his motion for summary judgment on DB’s fraud claim against him. DB alleges in its complaint that Harris misrepresented that he owned an undivided interest in the property, a material element of the contract. DB then alleges that it relied on this misrepresentation by executing the contract for sale; that the “Defendants may have utilized Plaintiff’s contract for the purchase of the property simply to generate a larger sales price for the property from Defendant Charles Loudermilk”; and that the “Defendants [’] actions constitute willful misconduct, malice and that entire want of care which raises the presumption of conscious indifference to the consequences.” Finally, DB’s complaint asserts that the “Defendants have acted in bad faith, been stubbornly litigious and Plaintiff is entitled to its attorneys fees and expenses of litigation pursuant to OCGA § 13-6-11” as well as punitive damages.

Punitive damages are not applicable to a claim for breach of contract. Mikart, Inc. v. Marquez, 211 Ga. App. 209, 212 (6) (438 SE2d 633) (1993). But punitive damages may be awarded in tort actions in which the plaintiff proves by clear and convincing evidence that the defendant’s actions demonstrated fraud that would raise the presumption of conscious indifference to consequences. OCGA § 51-12-5.1 (b); Davis v. Southern Exposition Mgmt. Co., 232 Ga. App. 773, 776 (4) (503 SE2d 649) (1998). However, mere bad faith on the part of the defendant in an action arising on a contract does not in itself authorize a punitive damage award. Nestle Co. v. J. H. Ewing & Sons, 153 Ga. App. 328, 332 (3) (265 SE2d 61) (1980).

To survive a motion for summary judgment on a fraud count, some evidence must support each of the five elements, which are: a false representation by a defendant; scienter; intention to induce the plaintiff to act or refrain from acting; justifiable reliance by plaintiff; and damage to the plaintiff. Crawford v. Williams, 258 Ga. 806 (375 SE2d 223) (1989). DB alleges that the defendants “may have” used DB’s contract to cause Loudermilk to bid more for the property, but DB does not allege that the defendants used its contract to generate a higher offer from DB. Pretermitting whether DB has presented evidence that a material question of fact exists regarding the other four elements, DB has not shown that Harris’s alleged misrepresentation about the property ownership was intended to induce him to act. Instead, DB only alleges that Harris’s actions may have been intended to induce another party to act, by making a higher bid.

Further, Harris has presented direct evidence that his intention was not to mislead DB, but that he expected to obtain the signature of co-trustee Dolive on the sales contract, not knowing that Dolive had promised to give Loudermilk the chance to bid on the property. After Harris pointed to the lack of evidence to support this element of DB’s fraud claim, DB was required to come forward with specific evidence giving rise to a triable factual issue. Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991); Johnson v. Rodier, 242 Ga. App. 496, 498 (2) (529 SE2d 442) (2000). As DB presented no specific evidence creating a triable issue, the trial court erred in denying summary judgment to Harris on DB’s fraud count.

Accordingly, this appeal is remanded to the trial court with direction to enter summary judgment to Harris on DB’s claims for breach of contract and fraud.

Decided May 23, 2001

Kilpatrick Stockton, Thomas C. Harney, Michael T. Carithers, Craig A. Gillen, for appellants.

Weinstock & Scavo, Michael Weinstock, Adam M. Gleklen, for appellee.

Case No. A01A0666

3. In light of our holding in Division 1, the trial court erred in denying summary judgment to Dolive, Loudermilk and the Trust on DB’s tortious interference with contract claim. If there is no contract, there can be no tortious interference with it.

Therefore, the trial court’s denial of summary judgment is reversed and the case remanded to enter summary judgment to Dolive, Loudermilk and the Trust on DB’s tortious interference with contract claim.

Judgments reversed with direction.

Smith, P. J., and Phipps, J., concur.


author: Eldridge, Judge.

text:
    A01A0403.
    COBB COUNTY BOARD OF TAX ASSESSORS v. MORRISON et al.
    (548 SE2d 624)
   Eldridge, Judge.

After Robert L. and Shirley R Morrison made no return of real property for 1995-1998 and had paid the ad valorem taxes based on the transfer tax form on the unimproved lot purchased in 1994, the Cobb County Board of Tax Assessors attempted to reassess the property for improvements made but not returned on the property for 1995-1998. The Superior Court of Cobh County correctly held that, when real property is assessed based on the transfer tax form and the prior tax return of the former owner as unimproved realty and the taxes assessed for such years have been paid based on such transfer tax form, the tax assessors cannot reassess such realty for such prior years to reflect an accurate fair market value for improved realty, even where the property owner failed to return the property as improved.

The parties stipulated the following facts. On November 3, 1994, the Morrisons purchased a vacant lot which had been subdivided from a larger tract. During 1995, they built a house on the lot. These property owners did not return the property in 1995 either as unimproved land and/or improved property. Nor did they return the land as either subdivided or improved with a house in 1996 through 1998; in fact, the property had been only automatically returned as unimproved land since the former owner last returned it prior to the sale in 1994.

The Cobb County Board of Tax Assessors did not discover that the property was a subdivided lot with a house until 1999. Rather, the Morrisons made no return and paid taxes on the realty based on its unimproved assessed value — $38,890 for 1996; $38,800 for 1997; and $98,560 for 1998 based on the transfer tax form as deemed to have been returned and as thereafter automatically tax returned under OCGA § 48-5-20 (a) (2). The Cobb County Board of Tax Assessors contended that the fair market value of the realty as improved property for assessment was $270,250 in 1996; $270,250 in 1997; and $329,920 in 1998 and that the property had not been returned.

The Cobb County Board of Tax Assessors reassessed the prior years of 1996, 1997, and 1998, treating the undervaluation as a failure to return. The Morrisons appealed to the Board of Equalization, but the Board of Equalization upheld the reassessment. The Morrisons appealed to the Superior Court of Cobb County under OCGA § 48-5-311. On cross-motions for summary judgment, the trial court denied the Board of Tax Assessors’ motion and granted the Morrisons’ motion.

Under Georgia’s ad valorem tax statutes, each property owner has an affirmative duty to return in writing, under oath, the fair market value of the realty including any improvements. OCGA §§ 48-5-6; 48-5-15; 48-5-19 (a); 48-5-20 (a); CC Office Assoc. v. DeKalb County, 219 Ga. App. 101 (464 SE2d 243) (1995). Making such return under oath annually is a personal duty of the property owner that cannot otherwise be performed except by an authorized agent who has the authority to bind the property owner to the fair market value, and absent proof of authorization by the property owner to make a binding return, the tax commissioner can reject a return signed by a purported agent. Southern Tax Consultants v. Scott, 267 Ga. 347 (478 SE2d 126) (1996). The return requires that any improvements be indicated on the return. OCGA §§ 48-5-15 (a); 48-5-20 (a) (2).

OCGA § 48-5-20 (a) (2) treats the transfer tax form, in the absence of the return of the property after transfer in the preceding year, as returned, and the property “shall be deemed to have [been] returned for taxation the same real property as was acquired by transfer at the same valuation as the real property was finally determined to be subject to taxation in the preceding year.” However, the property owner is not relieved from the duty to return the property timely for any improvements. OCGA § 48-5-20 (a) (2).

However, if the property owner fails to file a return subsequent to the year after transfer, then the prior year’s paid taxes are automatically deemed as the assessment value and treated as returned. Thereafter, in the following years, if no return was made, the prior year’s paid taxes are treated as the assessed value and automatically deemed returned as the prior year’s valuation and assessment. OCGA § 48-5-20 (a) (1), (2); Callaway v. Carswell, 240 Ga. 579, 580 (242 SE2d 103) (1978); Security-Morosgo Apts. v. City of Atlanta, 230 Ga. 117, 118 (196 SE2d 17) (1973). “Nothing in [OCGA § 48-5-20 (a) (2)] shall be construed to relieve the taxpayer of the responsibility to file ... a timely return where improvements have been made to the real property since it was last returned for taxation.” OCGA § 48-5-20 (a) (2). Thus, the automatic refiling of a prior assessment based on taxes paid does not exempt the property owners from the duty to make a return of any improvements or subdivision of the property. OCGA § 48-5-20 (a) (1), (2).

Such provision, OCGA § 48-5-20, does not empower a county board of tax assessors to treat such underreturned fair market value as unreturned, because no statute expressly grants such power and the property owner relied upon the statute for such automatic return. OCGA § 48-5-20. Had the General Assembly intended that the automatic return of unimproved realty be treated as unreturned when there is a failure to make a written return of new improvements or of subdivision of the land, the General Assembly would have expressly stated that the consequences to the property owner who failed to meet his affirmative duty to make the return would be deemed an unreturned property. “Neither the superior court nor this court is authorized to construe a revenue statute so as to confer an authority upon the Board by implication. [Cits.]” Fayette County Bd. of Tax Assessors v. Ga. Utilities Co., 186 Ga. App. 723, 726 (1) (368 SE2d 326) (1988).

A construction of a statute by the court shall not render the statutory language meaningless or mere surplusage. State of Ga. v. C. S. B., 250 Ga. 261, 263 (297 SE2d 260) (1982). A plain and unambiguous statute cannot be construed by the courts. Frazier v. Southern R. Co., 200 Ga. 590 (37 SE2d 774) (1946). Thus, the meaning of OCGA § 48-5-20 (a) (2) clearly states that the preexisting statutory duty of the property owner to return property that has been improved or subdivided since the last annual return is not exempted by the automatic return of the property at its prior fair market value. OCGA § 48-5-15. Such plain and unambiguous meaning does not destroy the effect of nonexemption from reporting. Brown v. State Merit System, 245 Ga. 239, 242 (1) (264 SE2d 186) (1980). However, this provision cannot be broadened to say more than it does, i.e., to treat such property as unreturned or to empower the county board of tax assessors to reassess property that has been automatically returned and the taxes paid as the equivalent of unreturned property even though the property owner has violated an affirmative duty to make an actual return. See Atlanta &c. R. Co. v. Wise, 190 Ga. 254, 255 (1) (9 SE2d 63) (1940).

“It is well-settled that tax assessors may assess unreturned tangible property for ad valorem tax purposes during the applicable seven-year period of limitation. [Cits.]” Eckerd Corp. v. Fayette County Bd. of Tax Assessors, 220 Ga. App. 454 (1) (469 SE2d 285) (1996). Such power applies to unreturned tangible property or under-returned tangible property and not to realty, because real property is already on the county tax digest at an assessed value and by the tax transfer form, but tangible property will not be on the ad valorem tax digest unless returned by the taxpayer. See generally OCGA § 48-5-20. The county board of tax assessors’ power to reassess ad valorem taxes differs between realty and personalty, because personalty can totally escape inclusion on the tax digest absent a reliable return of such personalty, while realty cannot escape inclusion and can be directly appraised by the county board of tax assessors. Eckerd Corp. v. Coweta County Bd. of Tax Assessors, 228 Ga. App. 94, 95-96 (1) (491 SE2d 173) (1997).

Ga. L. 1992, pp. 1643, 1645, § 2 pertinently provides that “[n]othing in this paragraph shall be construed to relieve the taxpayer of the responsibility to file a . . . timely return where improvements have been made to real property since it was last returned for taxation.” OCGA § 48-5-20 (a) (2). However, the descriptive caption of the Act never mentioned such provision among the purposes of the Act, because such provision was merely a recapitulation of the statutory duty to report new improvements, even if there was an automatic return of the prior year’s fair market value. The provision merely states that the property owner is not relieved of the duty to report new subdivision or new improvements by automatic annual return reporting. There is no sanction imposed for failure to return new improvements and for allowing an inaccurate fair market value to automatically be returned instead. The underreturn of realty does not make it unreturned property within the strict construction of the tax law. OCGA §§ 48-5-27; 48-5-299 (a), (b); 48-5-305 (b).

“Revenue statutes are to be construed strictly so as to resolve doubt in favor of the taxpayer, and their meaning is not to be extended by implication.” (Citations and punctuation omitted.) Fayette County Bd. of Tax Assessors v. Ga. Utilities Co., supra at 724. Tax laws must be strictly construed; absent the specific grant to the county board of tax assessors of the power to reassess realty returned at an incorrect fair market value, it lacks such power or authority and acts ultra vires in seeking to do so. Id. It is beyond argument that the property owner can abuse the tax law by subdividing or by improving realty, making no return, and allowing an automatic return at a prior year’s fair market value and avoid the fair share of ad valorem taxes due. However, the county board of tax assessors has available to it the county- or municipality-issued building permits, certificates of occupancy, transfer tax forms, or rezoning ordinances that grant subdivision of the land, which should trigger visual inspection of the property for tax assessment purposes long before the property has to be returned in a tax year. See Eckerd Corp. v. Coweta County Bd. of Tax Assessors, supra at 95.

Decided February 27, 2001 —

Reconsideration denied May 24,2001.

Haynie, Litchfield & Crane, Douglas R. Haynie, Harhert S. Gregory, Jr., for appellant.

Charles A. Evans, for appellees.

“[A] county board of tax assessors has no authority to undertake a reappraisal of realty once an assessment has been issued and taxes on the property have been paid for a given tax year.” Fulton County Bd. of Tax Assessors v. Dean, 219 Ga. App. 137, 138 (464 SE2d 257) (1995). In this case, the county board of tax assessors seeks to collect additional taxes resulting from a totally new appraisal of the realty as improved property, which is prohibited under these facts and circumstances. See Fayette County Bd. of Tax Assessors v. Ga. Utilities Co., supra at 725. The board of tax assessors cannot treat property that is merely underreturned in fair market value as unreturned property. Id. at 724.

Judgment affirmed. Andrews,

P. J, and Miller, J., concur.


author: Miller, Judge.

text:
    A01A0433.
    THE BEST JEWELRY MANUFACTURING COMPANY, INC. v. ARC SECURITY, INC. et al.
    (548 SE2d 134)
   Miller, Judge.

Plaintiff-appellant The Best Jewelry Manufacturing Company, Inc. (BJM) sued defendant-appellees ARC Security, Inc., Atlanta Airlines Terminal Corporation (AATC), and Continental Airlines, Inc., alleging breach of a bailment contract and negligence arising out of the theft of approximately $2 million worth of jewelry and watches from an airport security checkpoint. Summary judgment was granted to all defendants based on the terms and conditions of Continental’s approved tariff, which imposed a two-year limitation period in which to bring claims for loss or damage to baggage. We conclude the time limit for making a claim contained in this tariff applies to the theft of passenger carry-on property while that property is under the dominion of Continental’s agents during the pre-board screening and so affirm.

Viewed in the light most favorable to BJM as the opponent of summary judgment, the evidence authorizes the following facts: The owners of BJM, Harry Agasarkisian and his brother, are in the wholesale jewelry business. Agasarkisian flies 12 to 15 times a year to various trade shows. On this occasion, he was flying from Atlanta to Newark on a Continental flight to attend an international trade show in New York. He intended to check one bag of clothing and carry on a smaller case filled with diamond jewelry and watches he hoped to sell at the show.

At the security checkpoint operated by defendant ARC under contract to defendant AATC, Agasarkisian approached a security officer, proffered his business card, and requested a private check-in. He was instructed nevertheless to place his bags on the conveyor belt to the x-ray machine, if he wanted to get into the airplane. Agasarkisian placed both bags on the conveyor, waited until his merchandise passed into the x-ray machine, and then went through the metal detector without incident. As Agasarkisian waited for his bags at the end of the conveyor, the security officer put the belt in reverse. Agasarkisian’s first bag came through but the second, containing his merchandise, did not. The security officer was scanning the second bag for items she could not identify when “the next thing she knew [was] that (2) persons were running towards the north terminal.” A business traveler reported to police that two males approached scanner no. 5 and that “one of the males grabbed the bag from inside the scanner and [fled] toward the North Terminal.”

1. Continental. Federal law directs the Federal Aviation Administration to prescribe regulations “requiring screening of all passengers and property that will be carried in [an aircraft] cabin ... in air transportation. . . ,” Such screening must take place “before boarding . . . by a weapon-detecting facility . . . operated by an employee or agent of an air carrier. . . .” The applicable regulations require the airline’s security program to “prevent or deter the carriage aboard airplanes of any explosive, incendiary, or a deadly or dangerous weapon. . . .” The regulations further require that the airline “shall refuse to transport . . . [a]ny person who does not consent . . .” to a search of his person and an inspection of his property. So for purposes of this appeal, we assume without deciding that a bailment was created at the security checkpoint where all luggage, whether intended for check-in or carry-on, must be temporarily relinquished for physical inspection for weapons, explosives, or incendiaries.

Federal law also

authorizes airlines to incorporate by reference in any ticket or other written instrument any of the terms of the contract of carriage to the extent authorized by the [U. S. Department of Transportation]. And the DOT’s regulations contemplate that, [after Congressional deregulation of the airline industry], ticket contracts ordinarily would be enforceable under the contract law of the States. Correspondingly, the DOT requires carriers to give passengers written notice of the time period within which they may bring an action against the carrier for its acts.

Agasarkisian’s ticket/baggage check recites that it is “SUBJECT TO CONDITIONS OF CONTRACT ON REVERSE SIDE.” The “CONDITIONS OF CONTRACT” include accompanying “notices [which] form part . . .” of the contract. The “NOTICE OF INCORPORATED TERMS” expressly “forms part of the conditions of contract between the airline and the passenger,” and specifies that incorporated terms may include limits on liability for injury or death, limits on liability for baggage, and “[c]laims restrictions, including time periods in which passengers must file a claim or bring an action against the air carrier.” The notice further informs the ticket holder that the full text of each carrier’s terms may be inspected at airport and city ticket offices or obtained free of charge from each carrier.

The ticket is expressly “SOLD SUBJECT TO TARIFF REGULATIONS.” Continental’s Domestic General Rules Tariff No. DGR-1, also known as the Contract of Carriage, is approved by the U. S. DOT. Rule 95CO (A) (1) contains the following time limitation for claims against the carrier:

No action shall be maintained for any loss of, or damage to, . . . any property or baggage, . . . arising out of or in connection with transportation of, or failure to transport, any passenger or property or baggage unless notice of the claim is presented in writing to an office of the carrier . . . alleged to be responsible, within 45 days after . . . the events giving rise to the claim, and a notarized claim form is returned within 45 days after receipt, and unless the action is commenced within 2 yr. after [such] occurrence, but failure to give [such notice of claim] shall not be a bar if the claimant shows good cause. ...

Decided April 30, 2001

Reconsideration denied May 24, 2001 —

Evert & Weathersby, Michael N. Weathersby, Roger C. Wilson, for appellant.

Lokey & Smith, Malcolm Smith, Mozley, Finlayson & hoggins,

The instant contract action was filed on February 17, 1998, while the loss occurred three years earlier on February 8, 1995.

In Georgia, properly noticed limitations of liability and other restrictions contained in an approved tariff will be enforced as part of the contract of carriage between an airline and a passenger. Continental’s notice of incorporated terms closely tracks the language of the applicable federal regulation. As it is undisputed that BJM failed to bring the instant action within the two-year limitation imposed by the U. S. DOT-approved tariff, the trial court correctly granted summary judgment to Continental.

2. Agents or employees. In the Conditions of the Contract, Continental provided that “[a]ny exclusion or limitation of liability of carrier shall apply to and be for the benefit of agents, servants and representatives of carrier. . . .” In our view, both AATC and ARC are representatives or servants of the carrier to the extent they are involved in conducting the carrier’s federally mandated pre-board security screening, which must be performed by the carrier’s employees or agents. Consequently, both AATC and ARC are entitled to the protections and benefits of the limitations of liability, including the time limits and procedures for commencing the action, incorporated into the contract of carriage. As BJM did not comply within the proper time limits, the trial court correctly granted summary judgment to the air carrier’s representatives.

3. Remaining contentions have been considered. The first enumeration is without merit. The fourth enumeration is moot.

Judgment affirmed.

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

Sewell K. Loggins, Jennifer E. Theobold, Smith, Gambrell & Russell, David M. Brown, Jason S. Bell, for appellees.

       49 USCS § 44901 (a).

       Id.

       14 CFR § 108.9 (a).

       14 CFR § 108.9 (b) (1), (2).

       (Citations and punctuation omitted.) American Airlines v. Wolens, 513 U. S. 219, 230 (II) (B) (115 SC 817, 130 LE2d 715) (1995).

        Delta Air Lines v. Isaacs, 141 Ga. App. 209, 210-211 (2) (233 SE2d 212) (1977).

       See 14 CFR § 253.5 (b) (1), (2).

       See, e.g., Huang v. Intl. Total Svcs., 1997 U. S. Dist. LEXIS 6053 (III) (B), Case No. 94-75368 (E.D. Mich. 1997), affd in an unpublished opinion, 172 F3d 48 (1999 U. S. App. LEXIS 433, Case No. 97-1608) (6th Cir. 1999).


text:
    A01A0706.
    A01A0707.
    CORPORATE PROPERTY INVESTORS et al. v. MILON. LOCKE v. MILON.
    (549 SE2d 157)
   Eldridge, Judge.

These are interlocutory appeals from the denial in part of motions for summary judgment by Corporate Property Investors, owners of Lenox Square Shopping Mall, Pembroke Management, Inc., management company for the mall, Minasha Fernanders, a Lenox Square security guard, and Officer Constance A. Locke, the Atlanta Police Department (APD), who was on beat patrol responding to a dispatch to Lenox; their motions were denied as to Captain Ronald C. Milon’s, a Northwest Airlines pilot, claims against them for negligence, false arrest, false imprisonment, assault and battery, malicious prosecution, and punitive damages. The trial court erred in denying summary judgment on the claims for assault and battery; the trial court is affirmed as to the denial of summary judgment for claims of negligence, false arrest, false imprisonment, malicious prosecution, and punitive damages as to all the defendants except Officer Locke. Officer Locke is entitled to summary judgment under discretionary immunity.

On December 18, 1996, while passing Episodes Clothing Store, Fernanders allegedly saw someone, who appeared to be Captain Milon, placing a white blouse into a black bag. She went into the store and approached the plaintiff who had a black bag, tapping him on the shoulder to get his attention. When the security officer approached Milon, he had laid an off-white blouse down on a counter, but again had it in his possession when Officer Locke arrived, because he testified that he was in the process of purchasing it. Fernanders requested that Milon leave the store with her, which he refused to do, saying that this must be a joke; Milon continued shopping for five or ten minutes. At no time did Fernanders identify herself or tell Milon what she wanted or question the employees in the store, regarding the belief that Milon had attempted to shoplift from their store.

Fernanders reported by radio to her supervisor that she had witnessed a customer attempting to shoplift at Episodes and asked “for a backup police officer.” The supervisor called APD; it was reported to APD that “there was a shoplifting in progress,” and Officer Locke responded. Outside Episodes, Fernanders told Officer Locke outside Episodes that “she witnessed Mr. Milon take a white blouse, conceal it in his tote bag, and attempt to walk out of the store [; he] saw her standing there and immediately turned around, put the bag down, grabbed the blouse, and put it either back out on the shelf or hung it up.” Fernanders pointed out Captain Milon, who was still inside Episodes, to Locke as the attempted shoplifter.

Captain Milon denied attempting to place the blouse in his child’s tote bag or even opening it in Episodes and stated he never saw Fernanders until she spoke to him. The assistant manager of Episodes assisted Milon when he entered the store while he selected an off-white blouse and a pants suit for his wife.

On cross-examination, Fernanders admitted that she never witnessed Captain Milon remove a white blouse from his bag. But Fernanders had previously told Locke and the magistrate that she had witnessed Milon place a garment in the bag and then remove the garment, which had been relied upon to establish probable cause for the arrest and bindover. At the preliminary hearing attended only by Fernanders for the prosecution, Fernanders revealed that as she was passing by the store window, she had seen Milon putting the blouse in the bag through an array of mannequins from a distance of 45 feet.

Officer Locke approached Captain Milon based on the allegations made by Fernanders alone, and Milon saw Fernanders with Officer Locke and responded defensively and belligerently as a black man previously falsely suspected of shoplifting by Fernanders while Christmas shopping for his wife. Officer Locke asked where the black bag was, and he answered, “what bag?” Then Milon told Officer Locke that his child’s black tote bag was in the chair. Neither Officer Locke nor Fernanders made any investigation or questioned any of the employees of Episodes prior to or even after arresting Milon. Thus, based upon her experience, Officer Locke concluded that Milon’s demeanor indicated his guilt to her. Therefore, Officer Locke arrested Milon based upon his demeanor, response, and Fernanders’ statement. Based only on the facts told her by Fernanders and her subjective opinion of Milon’s attitude, she immediately placed Milon under arrest.

Based upon Fernanders’ testimony alone, Captain Milon was bound over by the magistrate. In the State Court of Fulton County, the charge of shoplifting was nolle prossed against Milon.

Case No. A01A0706

1. The defendants contend that the trial court erred in denying summary judgment to them as to negligence, false arrest, false imprisonment, assault and battery, malicious prosecution, and punitive damages.

(a) The defendants contend that they are shielded from liability for false arrest, false imprisonment, and malicious prosecution, because Officer Locke exercised her own professional judgment in making the arrest of Captain Milon for attempted shoplifting without the influence of Fernanders. See Jacobs v. Shaw, 219 Ga. App. 425, 426 (1) (465 SE2d 460) (1995). Had the evidence revealed that Officer Locke, in fact, made an independent investigation, as was her professional duty to do, and based her decision to arrest Milon on her independent investigation and the statements of Fernanders, then there would be a basis upon which professional judgment was exercised, and such would constitute a defense. However, merely to assert that Officer Locke exercised her professional judgment based on no probative facts, other than those told to her by Fernanders, some of which Fernanders now admits that she did not see, fails to constitute the predicate for the defense of the exercise of independent professional judgment by the on-duty police officer, because Officer Locke acted solely on the facts urged by another without any independent investigation to corroborate such allegations. See id. at 426-427 (1); McLeod v. Pruco Life Ins. Co., 215 Ga. App. 177, 179-180 (1) (449 SE2d 895) (1994). Further, plaintiffs evidence controverts Officer Locke’s affidavit and testimony. Jacobs v. Shaw, supra at 426.

In Jacobs v. Shaw, supra at 426, the professional judgment of the nonparty officer was based upon the prosecution witness’ statement, misrepresentations made by the accused regarding the prosecuting witness’ statement, on-scene investigation, review of the report by the state regulatory agency after checking the gas pump for accuracy, the accused’s statement, and professional experience. Id. at 427. In McLeod v. Pruco Life Ins. Co., supra at 178-179, the detective based his professional judgment upon two witnesses’ statements obtained in the investigation, circumstantial evidence that the accused only had access to the money determined by investigation, and the officer’s independent investigation. In contrast, in this case the only alleged facts upon which probable cause could be based was the statement of Fernanders as to what she allegedly saw.

Furthermore, as a party and not as a disinterested witness, unlike the above cases, Officer Locke’s statement that the arrest was based upon her professional judgment constitutes a mere statement of self-serving opinion and a legal conclusion that cannot support the grant of summary judgment.

[W]e must give full weight to the rule that a jury, not a judge, may construe the facts upon which such opinion is based and reach a diametrically different conclusion to that reached by the witness. . . . Thus, on opinion evidence alone, a summary judgment is not demanded as a matter of law, although such opinion evidence is always sufficient to make a jury issue.

(Citations omitted; emphasis in original.) Ginn v. Morgan, 225 Ga. 192,193 (167 SE2d 393) (1969); see also Savannah Valley &c. Assn. v. Cheek, 248 Ga. 745, 746-747 (285 SE2d 689) (1982); Tony v. Pollard, 248 Ga. 86, 90 (3) (281 SE2d 557) (1981); Home Ins. Co. v. Sunrise Carpet Indus., 229 Ga. App. 268, 272-273 (2) (493 SE2d 641) (1997). “ ‘An expert may aid the jury, but he cannot perform the functions of a juror, and under the guise of giving testimony, state a legal conclusion. [Cits.]’ ” Wells v. Metro. Life Ins. Co., 107 Ga. App. 826, 834 (131 SE2d 634) (1963). “Allegations, conclusory facts, and conclusions of law cannot be utilized to support or defeat motions for summary judgment.” (Citations and punctuation omitted.) Johnson v. MARTA, 230 Ga. App. 105, 107 (1) (495 SE2d 583) (1998).

(b) If all of what Fernanders told Officer Locke was proven to be true, then this would constitute probable cause for the arrest. However, there exists a compelling issue of the credibility of Fernanders. Fernanders made material, prior inconsistent statements to both Officer Locke and the magistrate that she saw Captain Milon take the blouse out of the bag and put it back on the shelf, but on deposition she admitted that she had not seen Milon take the blouse out of the bag. Further, there exist facts tending to disprove what Fernanders testified to having seen, i.e., (1) the fact that she allegedly observed what she claims while walking by the store window handing out security flyers 45 feet away and through a mannequin-crowded store window; (2) the fact that the child’s black tote bag allegedly held the blouse with all the other items in it already; (3) the fact that the store personnel did not see Milon open the bag while he was being helped by the manager; and (4) the fact that the plaintiff denied everything that Fernanders said that she saw. These questions of credibility and conflict in the evidence can be resolved only by a jury. See Foster v. Ramsey, 245 Ga. App. 118, 119 (1) (536 SE2d 550) (2000); Harding v. Ga. Gen. Ins. Co., 224 Ga. App. 22, 25 (479 SE2d 410) (1996). “Where a party gives testimony contradicting an out-of-court admission of such party, it is for the trier of fact to say whether it was true or false when made. [Cit.]” Dills v. Bohannon, 208 Ga. App. 531, 533 (1) (431 SE2d 123) (1993); Foster v. Ramsey, supra at 120.

(c) Where a prosecuting witness urges the arrest and prosecution of another without adequate investigation to determine if there exists a reasonable basis to believe that probable cause exists, such individual risks tort liability if there exists no probable cause to reasonably believe that the plaintiff committed a crime. See Ellis v. Knowles, 90 Ga. App. 40, 42 (2) (81 SE2d 884) (1954); see also Nicholl v. Great A & P Tea Co., 238 Ga. App. 30, 33-34 (517 SE2d 561) (1999) (physical precedent only). In this case, Fernanders, when the testimony that is in conflict is construed most strongly against Captain Milon, thought only that she saw Milon attempting to put a blouse in a black bag, which, if true, could have several reasonable inferences pointing to innocence, as well as guilt, and requiring further investigation.

In deciding if the belief of the prosecutor was reasonable, the prosecutor must have determined “that [the] apparent state of facts which seem[ed] to exist after reasonable and proper inquiry [by the exercise oí] the duty of caution and avoidance of haste [constituted probable cause].” Auld v. Colonial Stores, 76 Ga. App. 329, 335-336 (2) (45 SE2d 827) (1947); see also Coleman v. Allen, 79 Ga. 637, 640-642 (5 SE 204) (1888); Nicholl v. Great A & P Tea Co., supra at 33; Sanfrantello v. Sears, Roebuck & Co., 118 Ga. App. 205, 207 (163 SE2d 256) (1968). If a reasonable person would have investigated to determine if probable cause existed prior to urging an arrest and prosecution, then such failure to make an investigation may imply malice, as well as go to whether probable cause existed. See McClelland v. Courson’s 441 South Station, 248 Ga. App. 170 (546 SE2d 300) (2001); Fleming v. U-Haul Co. &c., 246 Ga. App. 681, 683-684 (541 SE2d 75) (2000); Medoc Corp. v. Keel, 166 Ga. App. 615, 617 (2) (305 SE2d 134) (1983); Melton v. LaCalamito, 158 Ga. App. 820, 824 (2) (b) (282 SE2d 393) (1981); see also Nicholl v. Great A & P Tea Co., supra at 33.

In actions for [tort liability for false arrest, false imprisonment, or malicious prosecution], the question is, not whether the plaintiff was guilty, but whether the defendant had reasonable cause to so believe — whether the circumstances were such as to create in the mind of the defendant a reasonable belief that there was probable cause for the [arrest and] prosecution. Probable cause is defined to be the existence of such facts and circumstances as would excite the belief in a reasonable mind, acting on the facts within the knowledge of the prosecutor, that the person charged was guilty of the crime for which he was [arrested and] prosecuted.

(Citations and punctuation omitted.) Tanner-Brice Co. v. Barrs, 55

Ga. App. 453 (2) (190 SE 676) (1937); see also Wilson v. Wheeler’s, Inc., 190 Ga. App. 250, 252-253 (1) (378 SE2d 498) (1989). “Whether the circumstances alleged to show probable cause existed is a matter of fact, to be determined by the jury, but whether they amount to probable cause is a question of law for the court.” (Citations and punctuation omitted.) Wilson v. Wheeler’s, Inc., supra at 252 (1); see also Booker v. Eddins, 183 Ga. App. 449, 451 (359 SE2d 211) (1987), overruled on other grounds, Cincinnati Ins. Co. v. Premier Tractor &c. Repair, 192 Ga. App. 243 (384 SE2d 449) (1989).

The defendant is not necessarily required to verify his information, where it appears to be reliable; but where a reasonable man would investigate further before beginning the prosecution, he may be liable for failure to do so. All such factors as the reliability of the source, the availability of further information and the difficulty of obtaining it, the reputation of the accused, and his opportunity to offer an explanation, and the apparent necessity of prompt action, are to be considered in determining whether it was reasonable to act without verification. Prosser, [Law of Torts (4th ed. 1971), § 119, p. 842].

(Punctuation omitted.) Melton v. LaCalamito, supra; see also McClelland v. Courson’s 441 South Station, supra; McGonagil v. Treadwell, 216 Ga. App. 850, 854 (456 SE2d 260) (1995); Atlantic Zayre, Inc. v. Meeks, 194 Ga. App. 267, 269 (390 SE2d 398) (1990); Wilson v. Wheeler’s, Inc., supra; Medoc Corp. v. Keel, supra at 617. However, if the prosecutor distorts facts, conceals facts, or is negligent in ascertaining facts, then the finding of probable cause by a magistrate will not protect the prosecutor. Hicks v. Brantley, 102 Ga. 264, 273 (2) (29 SE 459) (1897); see also Fleming v. U-Haul Co. &c., supra at 683.

(d) The defendants contend that the physical seizure of Captain Milon and handcuffing of him by Officer Locke cannot be imputed to them as an assault and battery. We agree, because she was not acting as either an employee or independent contractor for them at the time of arrest, but in the scope of her official duties.

Officer Locke could be liable for committing an assault and battery upon Captain Milon by making an illegal arrest. See Napper v. State, 200 Ga. 626, 629 (1) (38 SE2d 269) (1946). However, the on-duty peace officer, carrying out her official duty, is not the agent, servant, or employee of a private citizen making a complaint; therefore, her conduct cannot be imputed to such citizen. Hyatt Corp. v. Cook, 242 Ga. App. 542, 545 (529 SE2d 633) (2000); Wilson v. Waffle House, 235 Ga. App. 539 (510 SE2d 105) (1998); Rembert v. Arthur Schneider Sales, 208 Ga. App. 903, 905 (432 SE2d 809) (1993); Quinones v. Maier & Berkele, Inc., 192 Ga. App. 585, 589-590 (2) (385 SE2d 719) (1989); Welton v. Ga. Power Co., 189 Ga. App. 17, 19-20 (1) (375 SE2d 108) (1988). The defendants did not control the time, manner, or method of the officer’s performance of her official duties; therefore, the officer’s conduct could not be imputed to them. Beck v. Paideia School, 191 Ga. App. 183, 184 (1) (381 SE2d 132) (1989). Further, Officer Locke did not work off duty for the defendants. Welton v. Ga. Power Co., supra at 19-20.

2. The defendants contend that they cannot be liable under a theory of negligence for any damages sustained by Captain Milon from his arrest, detention, and prosecution, because there is no action for negligent false arrest, negligent false imprisonment, and negligent prosecution. However, plaintiff asserts a claim sounding in negligence, because “[t]here is no such tort [as negligent false arrest or negligent false imprisonment]. To constitute a false imprisonment [or false arrest], the act of the defendant in [arresting or] confining the plaintiff must be done with the intention of causing [an arrest or] confinement.” (Citation and punctuation omitted.) Stewart v. Williams, 243 Ga. 580, 581 (1) (255 SE2d 699) (1979). By definition a negligent act cannot be malicious, because acting with malice is an intentional act as opposed to a careless act. See Southern v. Sphere-Drake Ins. Co., 226 Ga. App. 450, 452 (486 SE2d 674) (1997). However, in this case, the traditional elements of negligence apply, i.e., (1) a legal duty to exercise ordinary care to protect others from an unreasonable risk of harm; (2) a breach of the standard of care; (3) a legally attributable causal connection between the conduct and the resulting injury; and (4) some loss or damage flowing to plaintiff’s legally protected interest as a result of the breach of duty. Bradley Center v. Wessner, 250 Ga. 199, 200 (296 SE2d 693) (1982).

If the [arrest and] confinement [are] due to the defendant [s’] negligence, the latter may be liable as for negligence, but the action is then governed by the rules and principles of the tort of negligence, according to which the plaintiff is required to show actual damage. In other words, there can be no such tort as [negligent false arrest or] negligent false imprisonment which of itself makes the defendant liable without proof of the invasion of some interest other than the bare interest in freedom from [arrest and] confinement.

(Citation and punctuation omitted.) Stewart v. Williams, supra at 581-582; see also Baggett v. Nat. Bank &c. Co., 174 Ga. App. 346, 348-350 (2) (330 SE2d 108) (1985); Oden & Sims Used Cars v. Thurman, 165 Ga. App. 500, 502-503 (3) (301 SE2d 673) (1983).

Case No. A01A0707

3. Officer Locke contends that the trial court erred in failing to grant her motion for summary judgment under discretionary immunity while acting under color of law. We agree and reverse.

Officer Locke took the alleged facts reported to her by Fernanders as true without making a professional police investigation and allowed her own personal feelings that a belligerent, hostile attitude by an African-American male accused of a crime was an indication of guilt rather than the righteous outrage of an innocent, law-abiding citizen cloud her professional judgment, causing her to rush to judgment prematurely.

In good faith, Officer Locke believed that at the time of the arrest all the facts alleged by Fernanders were true, that Fernanders saw Captain Milon stuff a blouse into a black bag and that he saw her watching him and removed the blouse from the bag; thus, Officer Locke had a factual basis for probable cause at the time of arrest, although such would constitute unprofessional police work without an independent investigation to avoid making a mistake as occurred in this case. See Barnett v. State, 204 Ga. App. 491, 493 (1) (420 SE2d 43) (1992); Ellis v. State, 164 Ga. App. 366, 367-368 (2) (296 SE2d 726) (1982). As a trained professional police officer, Officer Locke should have known that prosecuting witnesses generally tell the truth as they know it to be or believe it to be but also can be mistaken as to what they believe they saw or may either intentionally and falsely fill in facts as to what they saw with fictional details or in good faith selectively fill in gaps with what they saw to match their preconceptions, prejudices, or conclusions. Also, witnesses may simply lie from a hidden motive. An investigation is designed to corroborate these alleged facts by other witnesses and to determine the reliability and veracity of the prosecuting witness and the accused to determine if probable cause does in fact exist and not to burden the courts with groundless accusations of imagined criminal conduct. It is for this reason that police officers have broad discretionary judgment in making an arrest, which discretion should never be abdicated by inaction, pressure, persuasion, or prejudice.

Officer Locke’s conduct, while unprofessional, was not wilful, fraudulent, corrupt, or malicious; therefore, she enjoyed limited immunity. See OCGA § 36-33-4; Hennessy v. Webb, 245 Ga. 329, 330-331 (264 SE2d 878) (1980); McDay v. City of Atlanta, 204 Ga. App. 621-622 (1) (420 SE2d 75) (1992); Price v. Owen, 67 Ga. App. 58, 60-61 (19 SE2d 529) (1942). For Officer Locke to be liable, there must be not only an absence of probable cause, but also malice. OCGA § 51-7-1; Smith v. Trust Co. Bank, 215 Ga. App. 413, 415 (1) (450 SE2d 866) (1994); Pinkston v. City of Albany, 196 Ga. App. 43 (395 SE2d 587) (1990). Although a police officer performs an illegal act, the law will not presume malice or animus from such act alone. Franklin v. Consolidated Gov. of Columbus, Ga., 236 Ga. App. 468, 471 (1) (512 SE2d 352) (1999).

Decided May 8, 2001 —

Reconsideration denied May 24, 2001

Duncan & Mangiafico, George E. Duncan, Jr., for appellants (case no. A01A0706).

Kimberly L. Miller, for appellant (case no. A01A0707).

Mathis & Adams, Charles A. Mathis, Jr., David N. Krugler, Thomas F. Cuffie, for appellee.

Judgment affirmed in part and reversed in part in Case No. A01A0706. Judgment reversed in Case No. A01A0707.

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

       “A witness may be impeached by contradictory statements previously made by him as to matters relevant to his testimony and to the case.” OCGA § 24-9-83; Gibbons v. State, 248 Ga. 858, 862 (286 SE2d 717) (1982).

       “A witness may be impeached by disproving the facts testified to by him.” OCGA § 24-9-82; Morris v. State Farm &c. Ins. Co., 203 Ga. App. 839 (418 SE2d 119) (1992).


author: Andrews, Presiding Judge.

text:
    A01A0140. A01A0141.
    WINDER v. PAUL LIGHT’S BUCKHEAD JEEP EAGLE CHRYSLER PLYMOUTH, INC. WINDER v. RIVERS.
    (549 SE2d 515)
   Andrews, Presiding Judge.

In March 1996, Maryanne Winder bought a 1987 Corvette from Paul Light’s Buckhead Jeep Eagle Chrysler Plymouth, Inc. which had recently acquired the car as a trade-in from the only previous owner, Richard F. Rivers. Shortly after the purchase, Winder claimed she discovered the car’s odometer had previously been tampered with and set back to reflect lower than actual mileage. She sued Paul Light’s and Rivers alleging that both defendants knowingly tampered with and set back the odometer and that Paul Light’s knowingly sold her the car with the altered odometer, all with the intent to defraud her in violation of OCGA § 40-8-5. Winder appeals from the trial court’s grant of summary judgment in favor of Paul Light’s in Case No. A01A0140 and in favor of Rivers in Case No. A01A0141. We consolidate these appeals for consideration in this opinion. As to Winder’s claims against Paul Light’s, we find the evidence was sufficient to create a jury issue on the claim that Paul Light’s knowingly sold the car with an altered odometer but was insufficient to create a jury issue on the claim that Paul Light’s knowingly tampered with the odometer. Accordingly, we affirm in part and reverse in part the grant of summary judgment in Case No. A01A0140. Because the evidence was sufficient to create a jury issue on Winder’s claim that Rivers tampered with the odometer, we reverse the grant of summary judgment in Case No. A01A0141.

After visually inspecting and test-driving the car, Winder bought the car from Paul Light’s on March 11, 1996. Despite being a 1987 model, she paid the $16,990 asking price because of the car’s well-kept appearance and because it showed only 16,984 miles on the odometer. Three days after the purchase, Winder started having mechanical problems with the car and took it to a mechanic for an inspection.

After visually inspecting the car, the mechanic, Greg Nettles, told Winder the car appeared to him to have substantially more miles on it than indicated on the odometer. Nettles deposed that, although the car had a good appearance, he observed signs of wear on visible engine parts and road grime and stains on other engine parts that indicated there were substantially more than 17,000 miles on the car. He also observed that the brake pedal on the car was brand new, probably indicating replacement of an old worn down pedal that showed higher mileage and that the car had recaps on the original tires. Nettles further noted that when he later had the engine rebuilt for Winder in February 1997, after an engine rod failed, he observed wear on internal engine parts that showed the car had been driven substantially more miles than shown on the odometer. Another mechanic, Dexter Lee, who worked on the car with Nettles, testified that he saw internal engine parts from the car that showed wear he would expect in a car that had been driven in excess of 100,000 miles. Contrary to Nettles, he testified that the brake pedal on the car was old and appeared to exhibit excessive wear.

As a result of the inspection, Winder contacted the Governor’s Office of Consumer Affairs on March 15, 1996, and arranged for an odometer fraud investigator in that office, Russell Laurens, to inspect the car’s odometer. Laurens testified by deposition that his inspection showed the odometer had been tampered with. Upon close inspection, Laurens observed "numerous scratches and pick marks and gouges on the numeral wheels” of the odometer, indicative of tampering. He also observed that the odometer’s tamper-resistant strip had indentations, that the odometer numeral wheel assembly was partially lifted from its frame, and that the pinion carrier plate on the odometer was bent, all of which were strong indicators of tampering. A service sticker showed that the car’s dash had been removed and the instrument panel cluster serviced in 1989, but Laurens’ opinion was that the markings and damage to the odometer that he observed were not inadvertently caused during the servicing. Moreover, he noted there was no odometer change sticker on the car indicating that the odometer itself had been legitimately serviced. Although Laurens testified that the odometer tampering was done with more skill than that of an average layman, he also said he would not expect to find the gross marks and gouges he observed if a shop experienced in odometer service and repair had altered the odometer. Laurens also contacted Rivers and asked for service records on the car. He said Rivers provided him with some emission inspection records but did not respond to his request for service records.

In reviewing the paperwork on Winder’s purchase of the car, Laurens discovered discrepancies in the odometer disclosure statement provided at the time ownership of the car was transferred from Rivers to Paul Light’s on February 13, 1996. The statement showed Rivers’ name typed in as the transferor and stated that the odometer read 16,937 miles. However, the statement indicated not that this was the car’s actual mileage, but that “the odometer reading reflects the amount of mileage in excess of its mechanical limits.” Laurens testified that this statement indicated the odometer reading of 16.937 miles should actually be read as showing the car had traveled 116.937 miles. The statement failed to contain the required signature by the transferor but did contain a signature for the transferee, Paul Light’s. Subsequently, Laurens had a meeting with Paul Light’s during which Paul Light’s produced a revised odometer disclosure statement which was signed by Rivers as the transferor, dated February 13, 1996, and stated that the odometer reading of 16,937 miles reflected the car’s actual mileage.

As part of the paperwork she received when she purchased the car, Winder identified an odometer disclosure statement dated March 11, 1996, signed by Paul Light’s as transferor to her, which stated that the odometer reading of 16,984 miles on that date reflected the car’s actual mileage. Winder testified that the February 13 odometer disclosure statement indicating mileage in excess of the odometer’s mechanical limits was part of the paperwork she received when she purchased the car from Paul Light’s on March 11,1996, but she testified she did not notice this statement at the time of the purchase. Winder said she reviewed the purchase paperwork and first discovered this odometer disclosure statement after she discovered evidence of odometer tampering after the purchase. She contacted Paul Light’s about the discrepancy between this earlier statement and the March 11 odometer disclosure statement and was told there was a mistake on the February 13 statement. Winder could not recall whether she had ever seen the revised February 13 odometer disclosure statement that was provided by Paul Light’s to Laurens.

In support of his motion for summary judgment, Rivers gave an affidavit in which he stated that he bought the Corvette new in March 1988, owned it until he traded it in to Paul Light’s on the purchase of another car in February 1996, and received a $13,000 trade-in allowance. He said he drove the car only periodically as a pleasure car, kept it in a garage in excellent condition, and that the car’s odometer registered 16,974 miles when he traded it in to Paul Light’s. Rivers stated that he never tampered with the car’s odometer, never directed anyone else to do so, and was not aware of anyone else tampering with the odometer. According to Rivers, the low mileage shown on the odometer was accurate and consistent with the car’s condition. Rivers provided emission inspection records for the car for four years from 1992 to 1995 showing the following odometer readings on the inspection dates: 1992 — 11,250 miles; 1993 — 12,596 miles; 1994 — 13,550 miles; 1995 — 15,604 miles.

An affidavit provided by Paul Light’s sales manager in support of its motion for summary judgment stated that, when Rivers traded the 1987 Corvette to Paul Light’s on February 13, 1996, the odometer reading was 16,937 miles, and Rivers was given a $13,000 trade-in allowance based on the car’s low mileage and excellent condition. The manager stated that the odometer reading appeared to be correct and was consistent with the car’s excellent appearance and statements by Rivers that the car was kept as a pleasure vehicle and driven only occasionally. According to the manager, Paul Light’s did not tamper with the car’s odometer in any way.

1. The testimony given by the odometer fraud investigator, Laurens, showing tampering with the odometer, along with the testimony from the mechanics that the car appeared to have substantially more miles on it than shown by the odometer, provided direct and circumstantial evidence sufficient to create a factual issue precluding summary judgment as to whether someone had tampered with the odometer by setting it back to reflect lower than actual mileage in violation of OCGA § 40-8-5. Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991). Although the trial court did not give the reasons for its grant of summary judgment in favor of Paul Light’s and Rivers, to the extent the court concluded there was insufficient evidence of odometer tampering, this was error.

2. A factual issue precluding summary judgment was also presented as to whether Paul Light’s violated OCGA § 40-8-5 (c) by knowingly selling the car to Winder when it reflected lower mileage than the car had actually been driven due to odometer tampering in violation of OCGA § 40-8-5 (a).

Paul Light’s denies selling the car in violation of OCGA § 40-8-5 and points to evidence that it acquired the car with 16,937 miles on the odometer in a condition consistent with the low odometer reading and with assurances from Rivers that he drove the car only occasionally. However, other evidence was presented from which a jury could conclude that Paul Light’s knew or should have known when it sold the car to Winder that it had been driven substantially more miles than was reflected on the odometer.

Paul Light’s was aware of the February 13 odometer disclosure statement indicating the car’s odometer reading reflected mileage in excess of the odometer’s mechanical limits. Although this was not evidence of odometer tampering in violation of OCGA § 40-8-5, a trier of fact could conclude that it was evidence showing the 1987 car had been driven far in excess of the 16,937 miles reflected on the odometer when Paul Light’s acquired the car in February 1996. If Paul Light’s had reason to suspect that the car’s odometer reading was inaccurate, then it had a duty to reasonably investigate that suspicion before selling the car to Winder and giving her an odometer disclosure statement certifying that the odometer reading was accurate. Testimony from the mechanic who inspected the car for Winder three days after the purchase showed that a cursory visual inspection of the car and the engine compartment revealed clear signs that the car had been driven substantially more miles than the mileage reading on the odometer. A trier of fact could conclude from this evidence that Paul Light’s had reason to suspect that the 1987 car had been driven more miles than the odometer reflected and it knew or should have known by conducting a reasonable investigation that the odometer reading was not accurate when it sold the car to Winder. The trial court erred by granting summary judgment in favor of Paul Light’s on this issue.

3. Winder contends the circumstantial evidence was sufficient to create a jury issue as to whether Paul Light’s and Rivers violated OCGA § 40-8-5 (a) by knowingly tampering with and setting back the car’s odometer so as to reflect a lower mileage than the car had actually been driven.

Although there was direct and circumstantial evidence that the odometer had been tampered with and set back, only circumstantial evidence supported Winder’s claim that Paul Light’s or Rivers did the tampering.

When a plaintiff’s right to recover depended upon the establishment of a particular fact, and the only proof offered for this purpose was circumstantial evidence from which the existence of such fact might be inferred, but which did not demand a finding to that effect, a recovery by the plaintiff was not lawful, when, by the positive and uncontradicted testimony of unimpeached witnesses, which was perfectly consistent with the circumstantial evidence relied on by the plaintiff, it was affirmatively shown that no such fact existed.

Frazier v. Ga. R. & Banking Co., 108 Ga. 807 (33 SE 996) (1899). In other words, circumstantial evidence has no probative value in establishing a fact where such evidence is consistent with direct, unimpeached evidence showing the nonexistence of such fact. Blount v. Sutton, 114 Ga. App. 767, 770 (152 SE2d 777) (1966). Put another way,

[b]efore circumstantial evidence can have any probative value to rebut or contradict direct and positive testimony of an unimpeached witness of the alleged facts in question, such evidence must point at least more strongly to a conclusion opposite to the direct testimony. It is not sufficient that such circumstantial evidence points equally one way or the other.

Griffin v. Blackshear Bank, 66 Ga. App. 821, 825 (19 SE2d 325) (1942).

It is also true that for an inference drawn from circumstantial evidence to be sufficient to create a genuine issue of fact precluding summary judgment, it must be reasonable and must amount to more than mere speculation, conjecture, or possibility. Pafford, v. Biomet, 264 Ga. 540, 544 (448 SE2d 347) (1994); Butler v. Huckabee, 209 Ga. App. 761, 762 (434 SE2d 576) (1993).

Applying these standards, we conclude that, as against Rivers’ testimony to the contrary, the circumstantial evidence was sufficient to create a jury issue on Winder’s tampering claim against Rivers. Rivers owned the car from early 1988 when he purchased the new 1987 model until he traded the car to Paul Light’s in February 1996. During that time, Rivers kept the car in his possession, maintained it in excellent condition in a garage, and used it as a pleasure vehicle. Based in part on the low odometer mileage reading, Rivers received a substantial trade-in allowance of $13,000 for the car when he transferred ownership to Paul Light’s. Laurens testified that the odometer tampering he discovered, although more skillful than that of the average layman, left gross marks and gouges that he would not expect to find if a shop experienced in odometer service and repair had altered the odometer. Moreover, Rivers failed to cooperate with Laurens’ request that he produce service records on the car. Although the emission records Rivers produced showing low mileage on the car were consistent with his denial of tampering, they did not demonstrate that no tampering occurred.

Accordingly, there was evidence showing that Rivers had ample opportunity and motive for the tampering and that the tampering was not done by a professional. The circumstantial evidence in support of Winder’s tampering claim against Rivers points at least more strongly to a conclusion opposite to Rivers’ testimony denying the claim and is sufficient to allow a jury to draw reasonable inferences in favor of the claim. The trial court erred in granting summary judgment in favor of Rivers on this issue. Joseph Charles Parrish, Inc. v. Hill, 173 Ga. App. 97, 98-99 (325 SE2d 595) (1984).

Decided May 24, 2001.

Foster & Foster, Donald R. Foster, Christina M. Harris, Melnick, Moore & Elliott, Larry M. Melnick, for appellant.

Fain, Major, Wiley & Brennan, Gene A. Major, Brian H. Alligood, Deborah L. Morgan, for appellee (case no. A01A0140).

Arrington & Hollowell, Gary W. Diamond, Teri E. Brown, for appellee (case no. A01A0141).

On the other hand, as against the sales manager’s testimony for Paul Light’s to the contrary, the circumstantial evidence was not sufficient to create a jury issue on Winder’s claim that Paul Light’s tampered with and set back the car’s odometer. Paul Light’s acquired the car from Rivers on February 13, 1996, by paying a substantial $13,000 trade-in allowance based in large part on the car’s low odometer reading showing 16,937 miles on the car. Rivers confirmed that this was the odometer reading when he traded the car to Paul Light’s. Paul Light’s had possession of the car for only a month before selling it to Winder, and Laurens’ testimony showed that the tampering was not done with the level of skill he would expect from professionals. Moreover, the February 13 odometer disclosure statement indicating a mileage reading in excess of the odometer’s mechanical limits supports an inference not that Paul Light’s tampered with the odometer, but that it sold the car to Winder aware that the 16,937 mile reading did not reflect the actual miles on the car.

The circumstantial evidence relied upon by Winder to support her claim that Paul Light’s tampered with the odometer either is consistent with or tends to support the testimony that Paul Light’s did not tamper with the odometer. Accordingly, it amounts to mere speculation and is insufficient to create a genuine issue of fact. The trial court correctly granted summary judgment in favor of Paul Light’s on this issue.

Judgment affirmed in part and reversed in part in Case No. A01A0140. Judgment reversed in Case No. A01A0141.

Eldridge and Miller, JJ, concur.


text:
    A01A0215.
    PITZER v. DILLANT.
    (549 SE2d 508)
   Andrews, Presiding Judge.

Hope Pitzer appeals from the trial court’s grant of summary judgment to her mother Catherine Dillant on one count of Dillant’s complaint. Pitzer also appeals the trial court’s dismissal of her counterclaim against Dillant. For reasons which follow, we conclude that Pitzer introduced sufficient evidence to raise triable issues of fact on both claims; therefore, the trial court erred in granting partial summary judgment to Dillant and in dismissing Pitzer’s counterclaim.

This case arose after Dillant and her daughter Irene moved into Pitzer’s home, where Pitzer cared for them for approximately two years. Irene, who suffered from schizophrenia, was unable to care for herself, as was Dillant, who could not see or hear well, was unable to walk without a walker, and felt she was too old to handle her finances.

Dillant gave Pitzer a general power of attorney, and Pitzer admits she paid herself $17,317 from her mother’s funds. Pitzer stated that her mother agreed to pay her $500 a month for taking care of her and Irene. Pitzer paid herself $500 a month for a period of time and then increased the amount to $1,700 a month, without telling Dillant. Pitzer also acknowledges that she cashed two certificates of deposit totaling $107,000 which had previously been in her mother’s name. Pitzer later returned $77,000 of that amount to Dillant.

After Dillant and Irene left Pitzer’s house, Dillant brought this lawsuit, claiming Pitzer had wrongfully appropriated $175,000 from her under the power of attorney and also claiming that Pitzer failed to repay the $30,000 outstanding from the two CDs. Pitzer counterclaimed, alleging that she was entitled to payment for services and unreimbursed expenses of at least $50,000.

Dillant filed a motion for partial summary judgment, arguing that it was undisputed that Pitzer failed to return $30,000 from the money for the CDs. Dillant also moved to dismiss Pitzer’s counterclaim, contending that, by her own testimony, Pitzer paid herself more than the $500 a month she says her mother agreed to pay her and, therefore, she cannot claim she is entitled to any more money.

In response, Pitzer submitted a 62-page document prepared by a certified public accountant which listed all her expenses for the period of time her mother and sister lived with her. She also submitted the CPA’s affidavit which states that Pitzer’s expenses exceeded her deposited income during that period by more than $36,000.

Decided May 24, 2001.

David D. Rawlins, for appellant.

Rice & Keene, Kirk W. Keene, for appellee.

The trial court granted Dillant’s motion for summary judgment and also granted the motion to dismiss Pitzer’s counterclaim. The order gives no basis for the decision, merely stating that Dillant is granted summary judgment on her claim for the $30,000 remaining from the CDs and dismissing Pitzer’s counterclaim.

On appeal from the grant of summary judgment, this Court conducts a de novo review of the record, construing the evidence and all inferences in favor of the nonmoving party. Maddox v. Southern Engineering Co., 231 Ga. App. 802, 803 (500 SE2d 591) (1998). To prevail on summary judgment, the moving party must show that there is no evidence sufficient to create a jury issue on at least one essential element of plaintiff’s case. Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

Here, Pitzer has submitted evidence that her services and unreimbursed expenses exceeded the money received from her mother. Therefore, she has raised an issue of fact as to whether she owes her mother any money and, if so, exactly how much. Accordingly, partial summary judgment is not appropriate in this case, and the trial court also erred in dismissing Pitzer’s counterclaim.

Judgment reversed.

Eldridge and Miller, JJ., concur.

       Dillant disputes this, claiming she did not agree to pay Pitzer anything.