author: Andrews, Presiding Judge.

text:
    A02A0452, A02A0453.
    HARVEY v. J. H. HARVEY COMPANY (two cases).
    (568 SE2d 553)
   Andrews, Presiding Judge.

Joseph H. Harvey III (hereinafter Harvey III) is the son of Joseph H. Harvey, Jr. (hereinafter Harvey, Jr.) and grandson of the founder of J. H. Harvey Company (hereinafter the Company), a closely held family business operating a regional chain of supermarkets in south Georgia and north Florida. Harvey III appeals from the trial court’s grants of partial summary judgment to the Company in his two suits resulting from the termination of his employment agreement which, as amended, provided he would serve as the chief operating officer of the Company until the age of 65 or his death. In Case No. A02A0452, Harvey III also appeals from the trial court’s denial of his motion for partial summary judgment regarding mitigation of damages.

In reviewing the grant or denial of a motion for summary judgment, we apply a de novo standard of review and consider the evidence with all reasonable inferences therefrom in favor of the party opposing summary judgment. Birnbrey, Minsk & Minsk, LLC v. Yirga, 244 Ga. App. 726 (535 SE2d 792) (2000).

Case No. A02A0452

Harvey III, on August 27, 1989, entered into an agreement with the Company employing him as president and chief operating officer. The agreement provided that Harvey III would receive a base salary at the annual rate of $150,000 payable monthly in arrears, plus a percentage of net profits on a quarterly basis. Originally, the agreement stated that it “shall continue until the death of the Employee.” By amendment of March 23, 1993, the term of employment was changed to the “earlier of: (a) May 26, 2020, the 65th birthday of Employee, or (b) the death of the Employee.” Both the agreement and the amendment were signed for the Company by Harvey, Jr. as chairman of the board of directors.

In the years prior to 2000, Harvey, Jr. began negotiations with Harvey III in an effort to sell his shares in the Company and resign his employment. In July 1999, Harvey, Jr. offered to sell his shares to Harvey III and resign from the Company in exchange for $25,000,000. In the spring of 2000, disputes about Harvey Ill’s running of the Company resulted in a number of employees expressing their concerns for the Company to Harvey, Jr.

Because of the continuing disagreement over the value of Harvey, Jr.’s interest in the Company and Harvey Ill’s running of the Company, Harvey, Jr. attempted to place Harvey III on administrative leave from the Company and changed the Company’s reporting system so key employees reported directly to him instead of to Harvey III. Harvey III continued to receive his compensation. On September 6, 2000, the board of directors of the Company reorganized the Company so that Harvey III was no longer in charge of its day-today operations. On September 7, 2000, Harvey III withdrew his personal guarantee of the Company’s line of credit at First Union Bank, resulting in a fiscal crisis for the Company.

On November 7, 2000, Harvey III filed the shareholder litigation which is the subject of Case No. A02A0453, addressed infra. On December 1, 2000, the Board terminated Harvey Ill’s employment, but agreed to pay his salary until December 31, 2000.

Harvey III then filed this suit for breach of his employment contract. In response, the Company filed a counterclaim on numerous grounds, including the breach of the duty of good faith and fair dealing, as well as its motion for partial summary judgment. The trial court granted the Company’s motion for partial summary judgment, limiting Harvey Ill’s potential damages to the amount of wages, bonuses, and benefits he would have earned up to the date of trial. The trial court also denied Harvey Ill’s motion for partial summary judgment which sought a mandatory injunction requiring the Company to continue paying him his salary and benefits because it was impossible to mitigate his damages.

1. Harvey III, relying on City Council of Augusta v. Hydrick, 126 Ga. App. 611, 614 (3) (191 SE2d 563) (1972), contends that the trial court erred in limiting his damages to those accrued up to the time of trial, contending that OCGA § 10-6-37 is not applicable to his contract because it was for more than one year.

That section provides that:

When the contract is for a year, and the principal wrongfully discharges the agent before the end of the year, the agent may either sue immediately for any special injury from the breach of the contract, or, treating the contract as rescinded, may sue for the value of the services rendered, or he may wait until the expiration of the year and sue for and recover his entire wages.

City Council of Augusta v. Hydrick, supra, is inapplicable to Harvey Ill’s situation, however, because it dealt with a government employee who had, by virtue of a State statute dealing with City of Augusta employees, permanent employment. The City appealed, contending that the trial court erred in giving a charge to the jury that Hydrick would be entitled to recover the value of her contract to her, that is the amount of money which would put her in the same position as if her contract of employment had not been breached. The City relied upon then Code § 4-215 (now OCGA § 10-6-37), as well as a number of pre- and post-1861 cases dealing with constructive service, including Rosenstock v. Congregation Agudath Achim, 118 Ga. App. 443 (164 SE2d 283) (1968), in an attempt to limit Hydrick’s damages to those accrued up to the time of trial. This Court correctly concluded that neither the statute nor the cases applied to Hydrick’s situation which involved permanent tenure as a matter of statute. City Council of Augusta v. Hydrick, supra at 614.

An analysis of the history of the evolution of the concept of constructive service in Georgia shows the concept applicable to Harvey Ill’s situation, though not under the provisions of OCGA § 10-6-37. Therefore, the trial court’s grant of partial summary judgment to the Company was correct, but not on the grounds argued by the Company. A summary judgment right for any reason will be affirmed. Kaylor v. Atwell, 251 Ga. App. 270, 272 (2) (553 SE2d 868) (2001).

Prior to the adoption of Georgia’s Original Code of 1863 (enacted as the Code of 1861, but made effective January 1, 1863), the common law doctrine of constructive service, set out as the last option in OCGA § 10-6-37 (“wait until the expiration of the year and sue for and recover his entire wages”), was adopted by the Supreme Court of Georgia in Rogers v. Parham, 8 Ga. 190 (1850). Parham had been retained by Rogers as overseer for the year 1847 and was to receive a portion of the crops grown for his service. Prior to the expiration of the year, a dispute arose and Parham filed suit. Rogers contended that the suit was premature, the year not having ended. The Supreme Court found that:

When the overseer or agent is wrongfully dismissed from the service of his employer, he has his election of three remedies. 1st. He may bring an action, immediately, for any special injury which he may have sustained, in consequence of a breach of the contract. 2d. He may wait until the termination of the period for which he was employed, and then sue upon the contract and recover his whole wages. 3d. He may treat the contract as rescinded, and may immediately sue, on a quantum meruit, for the work and labor he actually performed.

(Citation omitted; emphasis in original and supplied.) Id. at 193.

The Original Code of 1863 contained Title III (Of Relations Arising From Other Contracts), Chapter 5 (Of Principal and Agent), Article 4 (Overseers). Section 2196 of Article 4, the predecessor of OCGA § 10-6-37, referred only to employers who “wrongfully discharge [d] the overseer . . . ,” a term with a particularized meaning as reflected by preceding Title II dealing with Domestic Relations. Title II included Chapter 4, Article 1, “Of Master and Servant” and Chapter 5, Article 2, “Of Master and Slave.” See also Spencer v. State of Ga., 77 Ga. 155 (3 SE 661) (1887); Clayton v. Daniel, 88 Ga. 300 (14 SE 470) (1892).

Although codified only as to overseers, the common law principle of constructive service continued to be applied to other occupations. In Isaacs v. Davies, 68 Ga. 169 (1881), Davies was employed by Isaacs as a clerk for five months, payable monthly. Isaacs discharged Davies before the end of the first month. Davies sued for his first month’s wage, recovered, and was paid. He then sued for the second month’s wage, but Isaacs pled the first judgment as bar to this suit. Finding no bar, the Supreme Court held that:

Had Isaacs continued Davies in his service and failed or refused to pay him at the end of each month, no one would question his liability to suit and judgment. If, then, he discharged him wrongfully, he did not, and could not thereby discharge himself from liability. If Davies kept his part of the contract, or offered to keep it, and was not permitted to do so by the acts of Isaacs, the latter cannot set up his own breach of the contract to discharge himself from its performance. See Code [of 1873], § 2939; [Blun & Sterne v. Holitzer,] 53 Ga. 82 [(1874)]; 1st Story on Con. §§ 25 (d.), 29.

Id. at 170.

Although the Company argues that this case supports its position that OCGA § 10-6-37 applies to contracts for a length other than one year, i.e., five months in Isaacs v. Davies, supra, or the remaining eighteen years of Harvey Ill’s contract, Code § 2939, cited in Isaacs v. Davies, supra, is now codified as OCGA § 13-6-14. It provides that if a contract is entire, “only one action may be maintained for a breach thereof; but, if it is severable or if the breaches occur at successive periods in an entire contract, an action will lie for each breach; but all the breaches occurring up to the commencement of the action must be included therein.”

In Cox, Hill &c. v. Bearden, 84 Ga. 304 (10 SE 627) (1889), Bearden sued his former employer after the expiration of his six-month term as a clerk, although he was discharged prior to the six months. The issue was whether the sum he recovered was excluded from garnishment for another debt owed by him because it represented “wages” instead of damages for contract breach, which would not be excluded. Citing a number of cases, including Isaacs v. Davies, supra, the Supreme Court found that:

The state of our law on the subject seems to be this: that where a servant is wrongfully discharged after rendering a portion of the services contracted for, he can, by waiting until the expiration of the term, bring his action for wages as though he had actually performed his contract, and will, prima facie, be entitled to recover wages at the rate stipulated in the contract; but the employer may reduce the recovery by so much as the servant did earn, or could, by the use of ordinary diligence, have earned in other employment of like kind, the burden of proving the facts requisite to establish such reduction being upon him, the employer. The doctrine of constructive service recognized by Lord Ellenborough in Gandell v. Pontigny, 4 Camp. 375, still prevails in Georgia, and as to overseers is expressly recognized by the code [of 1882], § 2217, [now OCGA § 10-6-37,] though the doctrine seems to be generally denied, or at least doubted, as sound law both in England and this country. 2 Chitty Con. 855; Smith M. & S. 188-196; Wood M. & S. § 127, p. 254; Schouler’s Dorn. Rel. § 472; MacD. M. & S. 193-194; Smith’s L. C., mar. pp. 45-46, in notes to Cutter v. Powell. Abiding by our own cases, we hold that the suit in question was for monthly wages, and that the money collected as a consequence was compensation realized upon a contract for services as a clerk. Whether, if the suit and recovery had been for damages for the breach of such a contract by discharging the clerk, the money would have stood in lieu of wages and thus have been exempt from garnishment by an equitable construction of the statute, we need not consider.

(Emphasis supplied.) Cox, Hill &c. v. Bearden, supra at 306-307 (1).

In Vol. 2, Code of 1895, the provision relating to overseer was changed to apply to any “agent” wrongfully discharged by his employer. Vol. 2, Code of 1895, § 3016. The only other change from the current wording of OCGA § 10-6-37 is the use of “employer” in Section 3016 instead of “principal.”

The Company relies upon Rosenstock v. Congregation Agudath Achim, supra, for its argument that OCGA § 10-6-37 applies to contracts of any length, not just those of one year. Rosenstock, however, relied primarily not upon the statute for its holding, but upon the common law concept contained in the cases discussed above, especially Cox, Hill &c. v. Bearden, supra. Code § 4-215 (now OCGA § 10-6-37), while also cited, by its terms applies only to contracts of one year, and is cited as supportive of the constructive service concept contained in Cox, Hill &c. v. Bearden, supra.

Rosenstock v. Congregation Agudath Achim, supra, does support the conclusion of the trial court that Harvey III may recover only his damages up to the time of trial. As stated there,

the rule as stated in the Cox case does not affect the running of the statute of limitation on the right of action for accrued wages. If the contract is severable and provides for wages payable in periodic instalments, then the employee need not wait until the expiration of the contract term but may sue, under the legal fiction assuming a rendition of “constructive service,” for the instalments of his wages as they accrue. Blun & Sterne v. Holitzer, [supra at] 84; Isaacs v. Davies, [supra at] 170; Moore v. Kelly & Jones Co., 111 Ga. 371, 373 (36 SE 802) [(1900)]; Edison v. Dundee Woolen Mills, 20 Ga. App. 404, 410 (93 SE 324) [(1917)]. Thus a right of action accrues, and the statute of limitation begins to run, as to each instalment as it falls due. “It is a general and established principle of law that the statute of limitation begins to run from the time the right of action accrues.” Ga. Prac. and Proc., § 29-17 (3rd Ed.); Mobley v. Murray County, 178 Ga. 388, 392 (173 SE 680) [(1934)]. Note that the rule is different where the contract of employment is entire, not sever-able, though it provides for payment in instalments. See Burns v. Mitchell, 55 Ga. App. 862 (2) (191 SE 870) [(1937)]. In the latter instance, the statute of limitation on the right of action for the stipulated wages, as distinguished from the right of action for damages for any special injury, would not begin to run until the expiration of the term of the employment contract. If the employee elects to treat the contract as continuing after wrongful discharge, the right of action as to the last instalment of his salary does not accrue until expiration of the stipulated term of employment.

Id. at 444-445.

The contract at issue is severable and not entire, and Harvey III may sue for each breach without waiting until the end of the term, which, in this case, is uncertain. Baker v. Brannen/Goddard Co., 274 Ga. 745, 748-749 (559 SE2d 450) (2002); Douglas & Lomason Co. v. Hall, 212 Ga. App. 475, 476-477 (1) (441 SE2d 870) (1994); see Schuck v. Blue Cross &c., 244 Ga. App. 147 (534 SE2d 533) (2000); Barker v. CTC Sales Corp., 199 Ga. App. 742 (1) (406 SE2d 88) (1991). His damages, however, aré limited, as concluded by the trial court, to the time of trial. Roberts v. Crowley, 81 Ga. 429, 439 (3) (7 SE 740) (1888); Roberts v. Rigden, 81 Ga. 440, 443 (1) (7 SE 742) (1888).

Although Harvey III argues that this Court should do away with the concept of constructive service as discussed in these cases, we are bound by the precedent of the Supreme Court and this Court recognizing it. Etkind v. Suarez, 271 Ga. 352, 357 (5) (519 SE2d 210) (1999); Edison v. Dundee Woolen Mills, supra at 410 (2). As far as any change in the concept contained in OCGA § 10-6-37, that is for the legislature, not this Court. Warden v. Hoar Constr. Co., 269 Ga. 715, 717 (1) (507 SE2d 428) (1998); Gen. Motors Acceptance Corp. v. Jackson, 247 Ga. App. 141, 144 (1) (542 SE2d 538) (2000).

2. Harvey III also contends that the trial court erred in denying his motion for summary judgment because the Company failed to carry its burden regarding mitigation of Harvey Ill’s damages because no reasonable mitigation is possible in his case.

The sole factual basis put forward by Harvey III for his contention regarding his duty to mitigate was that:

No other supermarket chains remotely comparable to the J. H. Harvey Company are based in the State of Georgia. Having been in the grocery business in the southeast all my life, I know that it is absolutely impossible for me to get a job in the Southeastern United States with comparable compensation, benefits or responsibilities that I had as the chief executive officer of the J. H. Harvey Company. I reside in Berrien County, Georgia and desire to continue living here.

Whether pursuant to OCGA § 10-6-38 or § 13-6-5, Georgia requires one injured by breach of an employment contract to mitigate damages. For a number of reasons, the trial court did not err in denying Harvey Ill’s motion for partial summary judgment regarding the impossibility of mitigation. First, he cites no authority, and we are aware of none, supporting his contention that he is entitled to a job exactly comparable to the one he lost before he has a duty to mitigate. Second, the paragraph set out above contains, at best, his own opinions, allegations, conclusory facts, and conclusions of law, which cannot support a motion for summary judgment. Seals v. Hygrade Distrib. &c., 249 Ga. App. 574, 577 (1) (549 SE2d 412) (2001); Corporate Property Investors v. Milon, 249 Ga. App. 699, 701 (1) (549 SE2d 157) (2001).

Because the trial court has not yet made a ruling based on the arguments made here by both the Company and Harvey III regarding the standard to be used in determining mitigation, we do not address it. Litland v. Smith, 247 Ga. App. 277, 278 (2) (543 SE2d 468) (2000).

There was no error.

Case No. A02A0453

3. In this case, Harvey III appeals from the trial court’s grant of Harvey, Jr.’s motion for partial summary judgment and denial of his motion for summary judgment in Harvey Ill’s suit seeking specific performance of a provision of the 1989 Shareholders’ Agreement giving him the option to purchase transferred shares.

The shares of J. H. Harvey Company are subject to a Shareholders’ Agreement signed by Harvey, Jr., Harvey III, and the four other shareholders on August 4, 1981 (the 1981 Agreement). On August 31, 1989, Harvey, Jr. and Harvey III entered into a Shareholders’ Agreement which made the 1981 Agreement “a part hereof by express reference” (the 1989 Agreement).

The 1981 Agreement sets forth various restrictions on the transfer of shares outside the Harvey family. It farther, however, states that these restrictions do not apply when the holders of at least two-thirds of the issued and outstanding shares consent. Section 1.1 states that “[e]ach Shareholder hereby covenants and agrees that ... he will not. . . pledge ... all or any part of his Shares to any person, firm, corporation or other entity without obtaining the prior written consent of the holders of at least two-thirds (2/3) of the issued and outstanding Shares.”

When Harvey, Jr. pledged his shares to First Union Bank, as demanded by the bank after Harvey III withdrew his personal guarantee of the Company’s line of credit, Harvey, Jr. obtained prior written consent as required by this section.

Pursuant to the 1981 Agreement, if Harvey, Jr. were to sell his shares in violation of the agreement, the Company would have a priority option to purchase the transferred shares within 60 days of receiving notice of the transfer. The 1981 Agreement provides that all of the shareholders vote on whether the Company exercises this option. If the Company purchased only a portion or none of these shares, any shareholder would then have a right to individually purchase the remaining shares within 90 days.

The 1989 Agreement, however, contained a change in this procedure, giving Harvey III alone the option to purchase shares transferred by Harvey, Jr. to someone other than a permitted transferee. Section 4 states that:

Joe, Jr. hereby grants to Joe, III an option regarding any or all of the shares of stock of the Company transferred by him ... , to the extent such transfers are not made either to Joe, III or Joe, Ill’s spouse, ... or any of Joe, Ill’s descendants, to purchase the transferred shares from the transferee in any such case, and Joe, Jr. warrants . . . that he will subject such transfers to the terms of this option at the time of transfer. . . .

(Emphasis supplied.)

Pretermitting whether the 1989 Agreement is a valid amendment to the 1981 Agreement, since it is not signed by all parties to the 1981 Agreement, we conclude that the trial court properly-granted summary judgment to Harvey, Jr. because the pledge of the stock to the bank was not a “transfer” as contemplated by Section 4.

Decided July 3, 2002

Alston & Bird, Jay D. Bennett, Dow N. Kirkpatrick II, Heather R. Peoples, J. Reese Franklin, W. Daniel Knight, Jr., for appellant.

King & Spalding, Frank C. Jones, Benjamin F. Easterlin IV, Ranee L. Craft, for appellee.

Troutman Sanders, Robert H. Buckler, amicus curiae.

Even assuming that the pledge of the stock as collateral for the line of credit was a “transfer,” so as to trigger Harvey Ill’s option, Harvey III could not purchase the shares from the transferee because the bank had only a security interest in the shares and did not have title to them absent a loan default by the Company, which did not occur.

To interpret the 1989 Agreement otherwise would make the requirement that Harvey III purchase from the transferee meaningless. In applying the rules of construction of contracts, we look to that construction which will uphold the contract as a whole and not make any provision meaningless. Deep Six v. Abernathy, 246 Ga. App. 71, 74 (2) (538 SE2d 886) (2000).

There was no error.

Judgments affirmed.

Phipps and Mikell, JJ, concur.

       Case No. A02A0452 involved breach of the employment agreement while Case No. A02A0453 involved Harvey Ill’s suit for specific performance of provisions of the 1989 Shareholders’ Agreement.

       In his complaint, Harvey III claimed that he had been “substantially damaged in an amount yet to be ascertained, but not less than One Million ($1,000,000.00) Dollars per year until May 26, 2020.”

       These four shareholders, Robinson, Giddens, Smith, and Wiseman, have filed an amicus curiae brief in support of the trial court’s grant of summary judgment to Harvey, Jr.


source: Caselaw Access Project

author: Mikell, Judge.

license: Public Domain

text:
    A02A0488.
    HUBBARD et al. v. DEPARTMENT OF TRANSPORTATION et al. C. W. MATTHEWS CONTRACTING COMPANY, INC. v. HUBBARD et al.
    A02A0489.
    (568 SE2d 559)
   Mikell, Judge.

Young Hee Hubbard filed suit against C. W. Matthews Contracting Company, Inc. (“Matthews”), Shepherd Construction Company, Inc. (“Shepherd”), the Department of Transportation for the State of Georgia (“DOT”), and four individual drivers to recover damages for injuries she sustained in an accident on the ramp merging onto 1-285 East from Georgia 400 South. Hubbard’s former husband, Jim Lewis, Jr., sought damages for loss of consortium. Hubbard and Lewis appeal the trial court’s denial of their motion for partial summary judgment on the issue of the liability of Matthews, Shepherd, and the DOT, and the grant of summary judgment to Matthews and Shepherd on all claims against them. In a cross-appeal, Matthews contends that the court erred in denying its motion for summary judgment on the issue of proximate cause. We affirm the judgment of the trial court.

Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. A de novo standard of review applies to an appeal from a grant of summary judgment, and we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant. Dover v. Mathis, 249 Ga. App. 753 (549 SE2d 541) (2001).

The record shows that at approximately 6:53 p.m. on November 26, 1995, Hubbard drove up the ramp that merges from Georgia 400 southbound onto 1-285 eastbound. That portion of 1-285 was under construction at the time. She passed an orange and black sign warning traffic of “road work ahead.” According to Hubbard, she came to a stop because the vehicle in front of her had stopped. That vehicle then proceeded to merge onto 1-285, but Hubbard’s car stalled on the ramp. Hubbard was unable to restart the engine by depressing the gas pedal several times. She exited the vehicle on the driver’s side and started to move up the ramp toward a concrete barrier wall to the right of her lane of travel. Rather than proceeding directly to the wall, however, Hubbard ran behind her car and waved her hands at vehicles which were following in the merge lane. The car immediately following Hubbard’s was able to avoid striking her person, but as it proceeded around her stalled vehicle, it was struck by the third car, which forced it to collide with Hubbard’s disabled car. Almost immediately, the fourth and fifth cars collided and slid into the second and third cars, causing the third car to strike Hubbard, resulting in serious injuries to her left leg. At the scene of the accident, the drivers of the third and fifth cars were ticketed for following too closely. The driver of the third car was convicted, and the driver of the fifth pled no contest to the charge and paid a fine.

The record shows that in 1993, Matthews and Shepherd, operating as a joint venture, entered into a contract with the DOT for a project that called for 5.087 miles of road widening on 1-285. The ongoing construction included the on-ramp where Hubbard’s accident took place.

Hubbard and Lewis filed the underlying suit in August 1996 against the DOT, Matthews, Shepherd, and each of the individual drivers involved in the accident. They alleged claims of negligent design, construction, and traffic control against the DOT, Matthews, and Shepherd, as well as claims for punitive damages. The plaintiffs subsequently settled their claims with the individual drivers, leaving only the DOT and the two construction companies.

Case No. A02A0488

1. First, we must consider Hubbard and Lewis’ argument that the trial court erred in considering the defendants’ renewed motions for summary judgment after the Superior Court of Cobb County had denied their prior motions. Hubbard’s suit originally was filed in Cobb County and was transferred to the Superior Court of Fulton County in December 2000. The Fulton County trial judge invited the parties to renew their motions for summary judgment. Hubbard and Lewis emphasize that the record was not expanded prior to the renewal of the motions. They argue that the doctrine of res judicata prevented the Fulton County judge from considering the motions. We disagree.

This Court has repeatedly held that “ [i] t is within the discretion of a trial judge to consider a renewed motion for summary judgment even without an expansion of the record. [Cit.] There is nothing in OCGA § 9-11-56 limiting the number of times a party may make a motion for summary judgment.” (Punctuation omitted.) T. L. Rogers Oil Co. v. South Carolina Nat. Bank, 203 Ga. App. 605, 606 (2) (417 SE2d 336) (1992). See also Travelers Indem. Co. v. Thomas, 172 Ga. App. 816, 818 (2) (324 SE2d 735) (1984); Southeastern Metal Products v. Horger, 166 Ga. App. 205, 206 (1) (303 SE2d 536) (1983). Further, res judicata would not apply, because the Cobb County trial judge denied the motions for summary judgment. According to OCGA § 9-12-40, “[a] judgment of a court of competent jurisdiction shall be conclusive between the same parties and their privies as to all matters put in issue.” (Emphasis supplied.) No judgment was entered by the Cobb County court. Accordingly, the Fulton County trial court properly considered the renewed motions.

2. In several related errors, Hubbard and Lewis argue that the trial court erred in granting Matthews and Shepherd’s motions for summary judgment. In their complaint, the plaintiffs alleged that the two contractors were responsible for the design of the traffic lanes and on-ramp at the scene of the collision and that such design was negligent. The plaintiffs also alleged negligent construction and traffic control. The trial court granted summary judgment to Matthews and Shepherd because there was no evidence that they performed the construction in a negligent manner, the two contractors did not hold themselves out as experts in design, and they did not participate in the design of the road construction. We affirm.

In David Allen Co. v. Benton, 260 Ga. 557 (398 SE2d 191) (1990), the Supreme Court provided the general rule regarding the liability of contractors to third parties in Georgia:

[Wlhere a contractor who does not hold itself out as an expert in the design of work such as that involved in the controversy, performs its work without negligence, and the work is approved and accepted by the owner . . . , the contractor is not liable for injuries resulting from the defective design of the work.

Id. at 558. Similarly, this Court has held that “[a] contractor for the State engaged in work on a public project is not liable for injury or damage to private property resulting from the work performed unless that damage or injury results from the contractor’s negligence or wilful tort.” C. W. Matthews Contracting Co. v. Marasco, 184 Ga. App. 150, 151 (361 SE2d 34) (1987). The sole exception to the rule in the case of a nonnegligent contractor is that “a contractor who is an expert in the design of the type of work being done may not ignore defects in the design.” David Allen Co., supra at 558. Therefore, Matthews and Shepherd could be held liable only if they performed the work negligently or if they held themselves out as experts in design.

We note that the trial court denied the DOT’s motion for summary judgment on the plaintiffs’ negligence claims after finding that the proximate cause of Hubbard’s injury was a jury question. That decision has not been appealed. Thus, Hubbard and Lewis continue to maintain a cause of action against the DOT for negligent construction, design, and traffic control.

(a) Hubbard and Lewis contend that the trial court erred in finding no evidence that Matthews and Shepherd performed the construction negligently. They argue that the contractors were negligent in constructing an on-ramp to 1-285 eastbound that was only 230 feet long. However, while Hubbard and Lewis raise issues concerning the design of the on-ramp, they fail to point to any evidence in the record demonstrating negligent construction on the part of the contractors.

Significantly, the record shows that Shepherd did not perform any construction at all on the eastbound side of 1-285, where Hubbard’s accident took place. Donald Mayo, a vice president of Shepherd and the project manager over Shepherd’s portion of the 1-285 construction, deposed that Matthews and Shepherd bid on the 1-285 project as a joint venture, and that the two companies agreed that Matthews would perform all work on the eastbound side while Shepherd would work on the westbound side. The two contractors executed a joint venture agreement, which expressly provided that “Shepherd shall furnish all labor, materials, equipment, and all other things necessary to perform the Contract Roadway work items required in connection with the West bound lanes on the Project.” The written agreement contained an identical provision regarding Matthews’ work on the eastbound side. Hubbard has not alleged that Shepherd negligently constructed the westbound portion of 1-285, nor has she shown any evidence of negligent construction by Matthews on the eastbound side.

Because Hubbard and Lewis failed to present any evidence supporting their claims of negligent construction against Matthews or Shepherd, the trial court did not err in granting summary judgment on this ground. See David Allen Co., supra.

(b) Next, we address Hubbard and Lewis’ argument that Matthews and Shepherd should be held liable for the allegedly negligent design of the ramp. In support of their claims, Hubbard and Lewis provided the affidavit of traffic engineer Herman Hill, who stated that, in his opinion, the DOT and the contractors improperly shortened the on-ramp, based on DOT specifications and known traffic speeds on 1-285. Hubbard and Lewis assign error to the trial court’s conclusion that the DOT, not the two contractors, was responsible for the design of the on-ramp. We find no error.

Georgia law dictates that the DOT shall have control and responsibility for all construction and maintenance of the state highway system. OCGA § 32-2-2 (a) provides, in pertinent part:

(1) The [DOT] shall plan, designate, improve, manage, control, construct, and maintain a state highway system and shall have control of and responsibility for all construction, maintenance, or any other work upon the state highway system and all other work which may be designated to be done by the department by this title or any other law. ... (3) The [DOT] shall provide for surveys, plans, maps, specifications, and other things necessary in designating, supervising, locating, abandoning, relocating, improving, constructing, or maintaining the state highway system or any part thereof, or any activities incident thereto, or in doing such other work on public roads as the department may be given responsibility for or control of by law.

The plaintiffs argue that Matthews and Shepherd participated in the design of the ramp; however, the record does not support their allegation. Dennis Womack, who at the time in question was employed by the DOT as the project engineer on the 1-285 widening project, deposed that the plans for the project were designed and drafted by the DOT and that he was responsible for ensuring that the contractors complied with the DOT plans. Roy H. Jump, a vice president of Matthews, testified in his deposition that Matthews constructed its portion of the project pursuant to the DOT designs.

In support of their argument that the contractors participated in the design, Hubbard and Lewis emphasize one answer Womack provided during his deposition, in which he responded affirmatively when asked whether it was correct that “both Matthews and DOT were involved in reviewing the plans, making sure they were accurate, making any changes to the plans that were needed.” However, Womack’s testimony continued that Matthews reviewed the construction “to make sure that it was in compliance with the final plans.” At most, the evidence shows that employees of Matthews made suggestions to the DOT regarding certain practical aspects of the project design to ensure that the construction complied with the DOT contract. For instance, Jump testified that he prepared a diagram to establish the width of the median shoulder. He explained that his diagram deviated slightly from the DOT plans by reducing the width of the shoulder, but that the change was required in order for the construction to comply with the DOT contract, which required that the plans accommodate certain traffic control configurations. Jump clarified that the diagram merely expressed what had already been set out in the DOT contract. He submitted the diagram to the DOT for final approval, which was granted.

Womack testified that the only proposed change to the design he recalled that either Matthews or Shepherd may have made concerning the location of Hubbard’s accident was to extend the length of the portable barrier wall. However, Womack could not recall if either of the contractors made the suggestion. Further, any official changes to the plans were made by the DOT with specific direction to the contractors. Womack also testified that the design of the ramp at issue was modified after Hubbard’s accident to increase the length of the ramp.

There was no evidence that the DOT ever relinquished control of the design of the project to either of the contractors. In fact, Jump repeatedly testified that Matthews does not design roads and did not design the 1-285 project. Similarly, Mayo testified that Shepherd could not deviate from the construction plans without DOT approval. Accordingly, the trial court properly granted Matthews and Shepherd’s motions for summary judgment on the negligent design claims. See Bob v. Scruggs Co., 204 Ga. App. 375, 377 (1) (419 SE2d 100) (1992).

(c) Hubbard and Lewis challenge the trial court’s grant of summary judgment on their claims of negligent traffic control against Matthews and Shepherd. They allege that Matthews and Shepherd failed to provide adequate lighting or traffic control devices to protect the public at the construction site, in violation of the Manual on Uniform Traffic Control Devices (“MUTCD”). Again, we find no error.

In Marasco, supra, we held that because the contractor “neither designated nor determined the location for or the manner of placement of” a road sign struck by the plaintiff’s vehicle, “but instead complied with explicit directions, specifications and orders of the [DOT] with respect to erection of the sign alongside the roadway,” that contractor could not be held liable for the plaintiff’s injuries. Id. at 150. Here we reach a similar result.

OCGA § 32-6-50 (a) provides that “[t]he [DOT] shall promulgate uniform regulations governing the erection and maintenance on the public roads of Georgia of signs, signals, markings, or other traffic-control devices, such uniform regulations to supplement and be consistent with the laws of this state.” Subsection (b) of the statute continues: “In conformity with its uniform regulations, the [DOT] shall place and maintain, or cause to be placed and maintained, such traffic-control devices upon the public roads of the state highway system as it shall deem necessary to regulate, warn, or guide traffic. . . .”

In the case sub judice, the contract between the DOT and the two contractors provided specific guidelines for traffic control during construction and required Womack’s approval of any traffic control plans or signs. Section 150.01 (E) of the contract states that “[t]he contractor shall secure the Engineer’s approval of the contractor’s proposed plan of operation, sequence of work and methods for providing for the safe passage of traffic before it is placed in operation.” Section 150.03 (D) provides: “Temporary guide, warning, or regulatory signs required to direct traffic shall be furnished, installed, reused and maintained by the Contractor in accordance with the MUTCD, the Plans, Special Provisions, or as directed by the Engineer” (Emphasis supplied.) Likewise, in Section 150.01 (G), the DOT reserved the right to restrict construction when, in the opinion of its project engineer, the work would hinder traffic flow on days involving unusual traffic conditions. The contract also prohibited the contractors from removing existing signs without the approval of the engineer. Finally, Section 150.08 mandates that “[f]ailure of the Contractor to comply with this Specification shall be reason for the Engineer suspending all other work on the Project.”

According to Jump’s deposition testimony, all warning signs, construction signs, barrier walls, reflective devices, obstacle markers, and other traffic control devices placed at or around the construction site were erected, implemented, and constructed by Matthews pursuant to the designs, plans, directives, and specifications of the DOT. Womack deposed that the construction signs were placed in accordance with the MUTCD and the contract drawings, that he determined whether the signs complied with the MUTCD, that the contract and the MUTCD controlled the placement of barrier walls, and that he approved the barrier walls before Matthews positioned them at the construction site.

Because it was the DOT’s responsibility to designate the location for, and the manner of placement of, the traffic control devices and to approve all traffic control plans, we conclude that the trial court properly granted summary judgment to Matthews and Shepherd on Hubbard’s negligent traffic control claims. See Marasco, supra at 152.

(d) Hubbard and Lewis assign error to the trial court’s grant of summary judgment to Matthews and Shepherd on the issue of punitive damages. The trial court found no evidence that the two contractors acted wilfully or maliciously. The plaintiffs argue that Matthews and Shepherd are liable for punitive damages because they knew about and ignored a number of prior collisions at the location of Hubbard’s accident. We affirm.

OCGA § 51-12-5.1 (b) provides:

Punitive damages may be awarded only in such tort actions in which it is proven by clear and convincing evidence that the defendant’s actions showed willful misconduct, malice, fraud, wantonness, oppression, or that entire want of care which would raise the presumption of conscious indifference to consequences.

A finding of negligence, even gross negligence, is insufficient to support a claim for punitive damages. Southern R. Co. v. O’Bryan, 119 Ga. 147, 148-149 (1) (45 SE 1000) (1903). Hubbard and Lewis’ brief cites no evidence in the record demonstrating wilful or malicious conduct to support a claim for punitive damages against Matthews and Shepherd, and our review of the record reveals none. Therefore, the trial court did not err.

In summary, we conclude that the trial court properly entered summary judgment in favor of Matthews and Shepherd on Hubbard’s negligence claims and on their claim for punitive damages.

3. Hubbard and Lewis argue that the trial court erred in denying their motion for partial summary judgment. In their motion, the plaintiffs contended that the DOT, Matthews, and Shepherd committed negligence per se by violating provisions of the MUTCD. They based this claim on the fact that the contract between the DOT and the two contractors incorporated provisions of the MUTCD.

As the trial court recognized, generally, negligence per se arises when a statute or ordinance is violated. Central Anesthesia Assoc. v. Worthy, 173 Ga. App. 150, 152-153 (325 SE2d 819) (1984), aff’d, 254 Ga. 728 (333 SE2d 829) (1985). The violation of certain mandatory regulations may also amount to negligence per se if the regulations impose a legal duty. See Dupree v. Keller Indus., 199 Ga. App. 138, 141 (1) (404 SE2d 291) (1991). OCGA § 51-1-6 provides: “When the law requires a person to perform an act for the benefit of another or to refrain from doing an act which may injure another, although no cause of action is given in express terms, the injured party may recover for the breach of such legal duty if he suffers damage thereby.” Assuming that a violation of a statute or mandatory regulation has occurred, before negligence per se can be determined, a trial court must consider “(1) whether the injured person falls within the class of persons it was intended to protect and (2) whether the harm complained of was the harm [the statute] was intended to guard against.” (Citations and punctuation omitted.) Central Anesthesia Assoc., supra, 173 Ga. App. at 153. Finally, if the court finds negligence per se, the plaintiffs must then demonstrate a causal connection between the negligence per se and the injury. Duncan v. Randolph, 236 Ga. App. 566, 567 (512 SE2d 688) (1999). “And it is generally a jury question as to whether or not such negligence proximately caused the injury.” Id.

Therefore, in order to be entitled to partial summary judgment, Hubbard and Lewis would have to demonstrate by undisputed evidence that the MUTCD regulations are mandatory and have the force of law, that Hubbard was in the protected class, that the harm she suffered was the type of harm the MUTCD was intended to guard against, and that the alleged negligence per se proximately caused Hubbard’s injuries. Central Anesthesia Assoc., supra, 173 Ga. App. at 153. Because Hubbard and Lewis failed to make the requisite showings, we conclude that the trial court properly denied their motion for partial summary judgment.

First, the trial court correctly found that Hubbard and Lewis failed to prove that the MUTCD regulations at issue were mandatory and could be used as the exclusive standard of care. As a preliminary matter, we must address Hubbard and Lewis’ failure to tender a copy of the MUTCD into evidence. In two related errors, Hubbard and Lewis contend that the court erred in not taking judicial notice of the MUTCD when it had been incorporated into the contract between the DOT and the two contractors. In its order, the trial court properly declined to take judicial notice of the MUTCD, because a certified copy had not been included in the record. Donaldson v. Dept. of Transp., 236 Ga. App. 411, 412-413 (1) (b) (511 SE2d 210) (1999). In an effort to circumvent their failure to tender the MUTCD, Hubbard and Lewis assign error to the court’s finding that they failed to demonstrate that the construction on 1-285 was a federal aid project, which would have enabled the court to take judicial notice of the MUTCD. The plaintiffs are correct that the construction at issue was a federal aid project; therefore, under Donaldson, supra at 413-414, the trial court could have taken judicial notice of the MUTCD had it been tendered. However, in Donaldson, we held that because the parties failed to request that the court take judicial notice of the MUTCD, even though it had been incorporated into the underlying contract, the court could not determine if the regulations gave rise to negligence per se. Id. at 415-416. Thus, in the case sub judice, the court did not err by not taking judicial notice of the MUTCD. Furthermore, we conclude that even if Hubbard and Lewis had tendered the MUTCD into evidence, it was not error for the court to deny their motion for partial summary judgment on the issue of negligence per se.

“[T]he MUTCD contains standards that fall into mandatory, advisory, and permissive categories.” Dept. of Transp. v. Cushway, 240 Ga. App. 464, 465 (523 SE2d 340) (1999). This Court has recognized that “[t]he MUTCD is not ‘the exclusive source of engineering and design standards’ especially as to permissive and advisory instructions.” Dept. of Transp. v. Mikell, 229 Ga. App. 54, 58 (1) (a) (493 SE2d 219) (1997), citing Dept. of Transp. v. Brown, 267 Ga. 6, 8 (2) (471 SE2d 849) (1996). Further, the Supreme Court has stated that while the MUTCD sets forth generally accepted engineering or design standards, it is not the exclusive source of these standards. Brown, supra. In the case sub judice, in addition to their failure to tender a certified copy of the MUTCD, Hubbard and Lewis failed to establish whether the MUTCD standards alleged to have been violated were mandatory. Additionally, Hill, the plaintiffs’ expert witness, admitted that the MUTCD is not a substitute for engineering judgment. Significantly, § 1A-4 of the MUTCD states that “[w]hile this Manual provides standards for design and application of traffic control devices, the Manual is not a substitute for engineering judgment. It is the intent that the provisions of this Manual be standards for traffic control devices installation, but not a legal requirement for installation.” (Emphasis supplied.)

Accordingly, even if we assume that Hubbard was within the class of persons protected by the MUTCD and that her injury the type of harm the standards were intended to prevent, Hubbard and Lewis would not be entitled to partial summary judgment because they were unable to demonstrate that the MUTCD provisions were mandatory or that they created a legal duty on the part of the DOT, Matthews, and Shepherd. Furthermore, even if Hubbard and Lewis had demonstrated negligence per se, partial summary judgment would still not have been proper, because there are substantial questions of fact regarding the proximate cause of Hubbard’s injury, including the negligence of the individual drivers and Hubbard’s contributory negligence. Thus, Hubbard and Lewis were not entitled to partial summary judgment.

4. In its order, the trial court, sua sponte, held that “to the extent that Plaintiffs’ motion is based upon any other violation of the contract between the Defendants, this Court finds that summary judgment is not proper.” The trial court reasoned that the plaintiffs lacked standing to contest a violation of the terms of the contract between the DOT, Matthews, and Shepherd. The court went on to grant summary judgment to the defendants on “all claims based upon any violation of the contract between the Defendants, on the basis of lack of standing.” Hubbard and Lewis assign error to the trial court’s ruling. We affirm.

Contrary to Hubbard and Lewis’ argument, we have held that a trial court may grant summary judgment sua sponte. Ga. Receivables v. Te, 240 Ga. App. 292 (523 SE2d 352) (1999). Hubbard and Lewis argue that standing is an affirmative defense and that the defendants waived it. However, lack of standing is not found in the list of affirmative defenses that must be pleaded or waived pursuant to OCGA § 9-11-8 (c).

In their appellate brief, Hubbard and Lewis cite Backus v. Chilivis, 236 Ga. 500, 503 (224 SE2d 370) (1976), and state that “Plaintiffs [’] claims are not actions on the contract, but ‘are tort actions founded on negligence.’ ” Their reliance on Backus is misplaced, however, as that case expressly holds that “[i]n order for a third party to have standing to enforce a contract... it must clearly appear from the contract that it was intended for his benefit.” Id. at 502 (II). Further, it stands to reason that if all of Hubbard and Lewis’ claims are torts, then they have not been harmed by the court’s grant of summary judgment on any claims based on alleged contract violations.

The trial court properly concluded that Hubbard and Lewis lacked standing to assert any claims arising from violations of the contract between the DOT and the two contractors. Under OCGA § 9-2-20 (b), a third-party beneficiary may sue to enforce a contract; however, the third-party beneficiary must be the intended beneficiary of the contract. The mere fact that a third party would benefit incidentally from the performance of the contract is not alone sufficient to give such person standing to sue on the contract. Backus, supra at 502. Hubbard was not a party to the contract and was not an intended third-party beneficiary of the contract. Therefore, she and Lewis have no standing to sue for an alleged breach.

Case No. A02A0489

5. In a cross-appeal, Matthews contends that the trial court erred in denying its motion for summary judgment on the issue of proximate cause. Based on our holding in Case No. A02A0488, in which we affirmed the trial court’s grant of summary judgment to Matthews on Hubbard and Lewis’ negligence and contract claims, Matthews’ cross-appeal is moot, and we need not address it.

Decided July 3, 2002

James W. Lewis, George R. Dean, for appellants.

Thurbert E. Baker, Attorney General, Moore, Ingram, Johnson & Steele, William R. Johnson, Jere C. Smith, John H. Ross, Cobb, Grabbe, Spillers & Irwin, Sharon C. Barnes, Susan J. Levy, for appellees.

6. Hubbard and Lewis move this Court to impose a frivolous appeal penalty on Matthews, pursuant to Court of Appeals Rule 15 (b). They argue that Matthews’ appeal lacks merit. Generally, frivolous appeal sanctions are imposed only upon the determination that the appeal was filed solely for the purpose of delay. Warnock v. Davis, 267 Ga. 336 (2) (478 SE2d 124) (1996); OCGA § 5-6-6. Finding no basis on which to impose such penalty, we hereby deny Hubbard and Lewis’ motion for sanctions for frivolous appeal.

Judgment affirmed.

Andrews, P. J., and Phipps, J., concur.

       The court granted the motion for summary judgment on Hubbard and Lewis’ claims against the DOT for punitive damages. The appellants have not appealed that decision.

       Womack became employed by Matthews in 1997, approximately two years after the accident.


author: Barnes, Judge.

text:
    A02A0548.
    COOK v. THE STATE.
    (568 SE2d 482)
   Barnes, Judge.

Following a jury trial, Mark Cook was convicted of simple battery, OCGA § 16-5-23, and sentenced to 12 months probation and a $200 fine. He now appeals. Cook does not challenge the sufficiency of the evidence, but instead contends that the trial court erred by refusing to consider his request for first offender status. He also asserts that the trial court imposed an unenforceable condition of probation. For the reasons that follow, we vacate and remand for resentencing.

1. Cook argues that the trial court failed to exercise its discretion by refusing to consider sentencing him as a first offender, because he did not enter a plea, but opted for a jury trial instead.

When trial counsel proposed that Cook, who was 17 and whose altercation involved his father, should be sentenced to first offender status, the court responded:

Mr. Cook, you have lost your chance for first offender. Even when it was pointed out to you that the jury was split four to two in favor of conviction, with two jurors indicating they could change their minds, you still maintained your desire to get a jury verdict and you did. So that’s of your own making, and you will live with that.

The First Offender Act provides that, for a defendant without prior felony convictions, a court may defer entering a judgment of guilt and place the defendant on probation or in confinement. OCGA § 42-8-60 (a). While the decision whether to sentence a defendant as a first offender lies entirely within the trial court’s discretion (Moore v. State, 236 Ga. App. 889, 890 (514 SE2d 73) (1999)), the trial court is required to exercise that discretion rather than apply an inflexible rule. In Cottingham v. State, 206 Ga. App. 197, 198-199 (3) (424 SE2d 794) (1992), the trial court sentenced the defendant to serve his sentences consecutively to a sentence he was serving in another state, announcing that it always made it a policy to impose any sentence consecutive to any sentence already being served that it had not imposed. Id. at 198. We remanded for resentencing, holding that “a trial court’s use of a mechanical sentencing formula or policy as to any portion of a sentence amounts to a refusal to exercise its discretion and therefore is an abdication of judicial responsibility.” Id. at 199 (3).

We found a similar abdication of responsibility when a trial court announced that it had never granted first offender treatment and never would. Jones v. State, 208 Ga. App. 472 (431 SE2d 136) (1993). We have also held that a trial court’s statement that the defendant “already lost first offender” by going to trial instead of entering a plea constituted a refusal to exercise discretion. Jackson v. State, 244 Ga. App. 477, 479 (3) (535 SE2d 818) (2000). In reiterating that a trial court may not refuse to consider this sentencing alternative because a defendant chose to proceed with a jury trial, we held that “first offender treatment, whether or not ultimately rejected, may not mechanistically be precluded without consideration on the merits as a part of the exercise of the trial court’s discretion during sentencing.” Stovall v. State, 251 Ga. App. 7, 10 (2) (553 SE2d 297) (2001).

“The judgment of sentence is vacated, and the case remanded for resentencing with direction that the new sentence not exceed the sentence previously imposed, and the request for first offender status be heard and considered on its merits.” (Citation and punctuation omitted.) Jackson v. State, supra, 244 Ga. App. at 479 (3).

2. As a special condition of probation, the trial court ordered Cook to

have no contact, violent contact with anyone for any reason. This means that when you walked in the door today, you had the right to use physical force to defend yourself or to defend someone else. You no longer have that right. If someone threatens you, forces you, you can’t defend yourself or anyone else. You have to be the first one to run away and call 911.

Decided July 3, 2002.

Patterson & Patterson, Jackie G. Patterson, for appellant.

Steven L. Harris, Solicitor-General, for appellee.

While a condition of probation providing that the defendant is not permitted to defend himself if attacked may be invalid because it could place him in danger (see Williams v. State, 234 Ga. App. 37 (505 SE2d 816) (1998)), in this case, the written sentence contains no such provision. The special conditions of probation contained within the sentence that was written and filed are simply: “No violence! Live with parents. Obey all house rules.” Because a written sentence controls over the trial court’s oral pronouncements, we find no error. Farmer v. State, 216 Ga. App. 515, 520 (5) (455 SE2d 297) (1995).

Accordingly, the sentence is vacated and remanded to the trial court for resentencing consistent with Division 1 and direction that first offender treatment be considered on its merits.

Judgment vacated as to sentence and case remanded for resentencing.

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


author: Johnson, Presiding Judge.

text:
    A02A0575.
    BRIDGES v. THE STATE.
    (568 SE2d 574)
   Johnson, Presiding Judge.

Joseph Walter Bridges pled guilty to a burglary charge on November 3, 1998, in Douglas County and was given a twenty-year sentence; he was ordered to serve eight of the twenty-year sentence in confinement. After sentencing, he remained in the Douglas County jail awaiting transfer to a state prison facility. After about three days, Bridges was transferred to the Newton County jail on a superior court bench warrant in an unrelated case. The paperwork sent with Bridges stated that he was “under sentence requiring state time to be served.” About a week after being transferred to the Newton County facility, Bridges was allowed to post bond on the Newton County charge. Once Bridges posted bond, he was given his possessions and left the jail without incident.

A short time later, Douglas County received calls that Bridges was out of jail. The bondsman could not find Bridges at any of the addresses he gave to the bonding company. On December 3, 1998, an investigator with the Metro Fugitive Squad began searching for Bridges. The fugitive squad looked for Bridges at his last known address and investigated his family and known associates, with no success. Finally, nearly 16 months after he left the Newton County jail, investigators with the Metro Fugitive Squad found Bridges dining at a restaurant and arrested him.

Bridges was charged in Newton County with escape. After a jury trial, he was convicted of the charge. He appeals from the conviction, claiming: (1) the evidence was insufficient to support the verdict because there was no evidence showing that he had criminal intent to commit escape or that his departure was unauthorized; (2) the trial court erred in denying his motion for directed verdict of acquittal when the state failed to show that he escaped from the state’s custody within the layperson’s meaning of the word “escape”; and (3) the trial court erred in denying his motion for mistrial because the state presented prejudicial testimony in violation of a motion in limine. Each of these arguments is without merit, so we affirm the conviction.

1. On appeal, a defendant no longer enjoys the presumption of innocence, and we view the evidence in the light most favorable to the jury’s verdict. Further, we do not weigh the evidence or determine witness credibility. Instead, an appellate court determines whether the evidence is sufficient to convict the defendant beyond a reasonable doubt. Here, the evidence was sufficient.

A person commits the offense of escape when he, having been convicted of a felony, intentionally escapes from lawful custody or from any place of lawful confinement. The statute does not define “escape,” and we have found no cases defining the term.

Black’s Law Dictionary defines “escape” in several ways, such as “[a]n unlawful departure from legal custody without the use of force,” or “[a] prisoner’s departure from legal custody as a result of an officer’s negligence.” According to Black’s, “escape” can also mean “an unauthorized departure from legal custody,” or “an unlawful departure or an avoidance of capture.” And, escape can be accomplished with the express consent of the keeper.

Similarly, Webster’s New International Dictionary defines “escape” as “[t]he unlawful departure of a prisoner from the limits of his custody . . . often . . . without prison breach, being called negligent when without the custodian’s consent and voluntary when with it.” Considering these definitions, a rational trier of fact could have found that Bridges’ departure from the Newton County jail after he served only a few days of his eight-years-to-serve sentence constituted an escape.

We are not persuaded by Bridges’ argument that there was no escape because jail officials authorized his departure. First, the fact that a custodian’s negligence may have made his premature departure possible does not mean there was no escape. Second, the Newton County officials did not have authority to release Bridges from state custody and the sentence of confinement imposed in Douglas County.

Nor are we convinced that a lack of evidence showing criminal intent mandates reversal. Criminal intent may be inferred from all of the circumstances connected with the act for which the accused is being prosecuted. The accused’s conduct before and after the offense are circumstances from which criminal intent may be inferred. Whether an accused possesses the requisite intent is a question for the jury to decide.

Here, the jury could have found from the evidence presented that when Bridges walked away from state custody, he knew that his eight-year sentence imposed just days earlier had not yet been served. Moreover, criminal intent to avoid lawful confinement could be inferred from the fact that Bridges gave the bondsman inaccurate information regarding his anticipated residence and place of employment, that he could not be found at any of the addresses given, and that he could not be found by the fugitive squad for over a year. Contrary to Bridges’ contention, a rational trier of fact could have found the essential elements of the crime of escape beyond a reasonable doubt. Therefore, this enumeration lacks merit.

2. The denial of a motion for directed verdict of acquittal should be affirmed if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. As discussed in Division 1, a rational jury could have found the elements of the crime of escape beyond a reasonable doubt in this case. Therefore, Bridges’ complaint that the trial court erred in denying his motion for a directed verdict of acquittal based on the lack of evidence that he intended to escape and that he was not authorized to leave the jail is without merit.

Decided July 3, 2002.

Ninfo & Ledbetter, Mario S. Ninfo, for appellant.

3. We reject Bridges’ claim that the trial court’s denial of his motion for mistrial based on a violation of his motion in limine warrants reversal.

Before trial, Bridges filed three motions in limine. He sought to: (1) restrict the state’s witnesses from discussing the factual circumstances surrounding the underlying burglary conviction; (2) prohibit the state from allowing its witnesses to use the word “escape” and from eliciting from witnesses an opinion as to the ultimate issue — whether Bridges did, in fact, escape; and (3) prohibit the state from introducing any evidence regarding what actions the Metro Fugitive Squad took to take him back into custody after he left the jail, other than the circumstances immediately surrounding his arrest. The trial court granted the first motion, and granted in part and denied in part the second motion. The trial court denied the third motion, which is the one at issue on appeal, finding that evidence regarding the fugitive squad’s efforts to find Bridges was relevant to the issue of Bridges’ knowledge and intent concerning whether he was lawfully out of jail.

At trial, the state asked an investigator with the Metro Fugitive Squad about the fugitive squad’s procedures in locating fugitives. The witness summarized the squad’s information-gathering process, and the state asked the investigator if he had some or all of that information available to him when he was looking for Bridges. The investigator unresponsively remarked that “Mr. Bridges had been chased by our squad before. In fact, when he was caught and sent to Douglas County on the sentence that he had there —.” Defense counsel objected to this testimony and moved for a mistrial.

This unsolicited testimony, while it may have been objectionable on other grounds, did not violate the trial court’s ruling on the motion in limine, inasmuch as the only motion in limine which was even remotely related to this testimony had been denied. Bridges has not enumerated as error the trial court’s denial of the motion in limine, nor has he enumerated any other error related to the investigator’s testimony. Accordingly, no other issues will be addressed. This enumeration presents no ground for reversal.

Judgment affirmed.

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

W. Kendall Wynne, Jr., District Attorney, Alan A. Cook, Assistant District Attorney, for appellee.

        Moten v. State, 252 Ga. App. 222 (1) (554 SE2d 553) (2001).

       Id.

       Id.

       OCGA § 16-10-52.

       Black’s Law Dictionary (7th ed. 1999), p. 564.

       Id.

       Id.

       Webster’s New Inti. Dictionary (2nd ed. 1959), p. 871.

       See Johnson v. State, 246 Ga. 126, 128 (V) (269 SE2d 18) (1980); Holt v. State, 143 Ga. App. 438, 439 (1) (238 SE2d 763) (1977); Black’s Law Dictionary, supra.

        Dunn v. State, 248 Ga. App. 223, 226 (2) (546 SE2d 27) (2001).

       See Woods v. State, 232 Ga. App. 367, 368 (1) (501 SE2d 832) (1998).

        Dunn, supra.

       See Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); see generally Holt, supra.

        Miller v. State, 233 Ga. App. 814, 816 (2) (506 SE2d 136) (1998).

       See generally Gay v. State, 233 Ga. App. 738, 740 (3) (505 SE2d 29) (1998).


author: Phipps, Judge.

text:
    A02A0592.
    IRWIN COUNTY v. OWENS.
    (568 SE2d 578)
   Phipps, Judge.

Patricia Owens sued Irwin County, alleging that without her permission, the County had constructed a wide road across her property, dug deep ditches alongside the road, and destroyed numerous trees and bushes. The County claimed ownership of the strip of land under theories of implied dedication and prescription. A jury found in favor of Owens and awarded her damages, litigation expenses, and attorney fees. The County appeals, contending that it should have been allowed to open and close arguments to the jury, that the evidence demanded a verdict in its favor, that damages, litigation expenses, and attorney fees should not have been awarded, that its motion for mistrial based on a comment by Owens’s attorney during closing argument should have been granted, and that its motion for new trial should have been granted. Finding these contentions without merit, we affirm.

The evidence at trial showed that in April 1998, Owens purchased a 98.95-acre farm in Irwin County. A path ran across the farm, and a “private property” sign was posted at the path’s entrance onto the farm. Owens testified that “it was just a little path that you could get a pickup truck through, and the trees and bushes were so close . . . the trees at the top, their limbs touched each other and almost completely shaded this little path all the way through.”

In May 1998, Owens discovered that a grader had been on the path. Her husband called the district’s county commissioner, who assured him that the County would not be back. A few days later, Owens called the Chairman of the Irwin County Commissioners, who told her that the person who farmed property that adjoined hers had requested better access to a “back field.” Without having made any effort to determine who owned the property, the chairman had sent county workers to work on the path. Although he assured Owens during their telephone conversation that the County would not be back, the next day, county workers returned, uprooted trees, “skinned” pine trees, widened the path, and dug deep and wide ditches alongside it. The disturbed land varied in width from 24 feet to 47 feet.

In support of its claim of ownership of the path through dedication and prescription, the County presented the testimony of community members who stated that at various times they had used the path to, among other things, walk to church, access crop fields, reach softball fields, and truck fertilizer to nearby fields. Also, a retired county motor grader operator testified that he had graded the path during the mid-1970s.

But, contrary to the County’s position, a former county commissioner who had served the district that included the property from 1989 through 1996 testified that the path had not been considered a public road and was not incorporated into the system of county roads. He testified that during his tenure, the County had done no work on the road except that once, at a farmer’s request, it had “pushed a little dirt” where the road had “washed.” A former chairman of the commission, who served from 1981 to 1989, testified that the road had not been considered a public road and that the County did no work on the road, except once filling a mud hole at the request of a farmer. Further, the person who sold the farm to Owens testified that she had owned the land since 1983 and that the path was not a public road.

1. The County contends the trial court erred in not allowing it to open and conclude closing arguments. But the County was required to make a motion in this regard “before testimony by the other party was submitted.” Because the record shows that the County failed to make its motion timely, the trial court did not err in denying it.

2. The County contends that the trial court should have granted it judgment as a matter of law on its motions for a directed verdict and for judgment notwithstanding the verdict on the issues of implied dedication and prescription.

In determining whether the trial court erred by denying [the County’s] motion [s] for a directed verdict and motion [s] for judgment n.o.v., this court must view and resolve the evidence and any doubt or ambiguity in favor of the verdict. A directed verdict and judgment n.o.v. are not proper unless there is no conflict in the evidence as to any material issue and the evidence introduced, with all reasonable deductions therefrom, demands a certain verdict.

(a) To show that property has been dedicated, two criteria must be established: (1) the owner intended to dedicate the land for public use; and (2) the public accepted the dedicated property. Although there was no evidence that the path had been expressly dedicated to the County, the County claimed that there had been an implied dedication and acceptance of the path for public use. “When an implied dedication is claimed, the facts relied on must be such as to clearly indicate a purpose on the part of the owner to abandon his personal dominion over the property and to devote it to a definite public use.”

Here, the County relied on evidence that members of the community had used the path for various purposes and that county workers occasionally graded it. However,

the mere use of one’s property by a small portion of the public, even for an extended period of time, is not sufficient to authorize an inference that the property has been dedicated to a public use, unless it clearly appears that there was an intention to dedicate, and that this dedication was accepted by the public authorities, either in express terms or by implication resulting from the maintenance of a way public in its nature.

The County produced no evidence regarding which owner had abandoned personal dominion over the property. Moreover, the testimony of a previous owner and former commissioners was competent evidence that there had been no implied dedication. Although it appears that the County had at some time periodically graded the path, “by permitting public authorities to occasionally scrape and grade a private road, a property owner does not manifest an intention to dedicate the roadway.” Furthermore, the County proffered no evidence that it maintained the path as a county road open for public use. Thus, the evidence did not demand a finding that the path had been impliedly dedicated to and accepted by the County as a public road.

(b)
In order to obtain prescriptive rights over a roadway, the possession must not originate in fraud, must be public, continuous, exclusive, uninterrupted, peaceable, and accompanied by a claim of right. The use must also be adverse rather than permissive, and in the case of public roads acquired by prescription, public authorities must have either accepted the road or exercised dominion over it. Lastly, there must have been unlimited public use of the roadway for at least the seven years preceding the claim of prescriptive acquisition.

The evidence in this case did not demand a finding that the County accepted the path or exercised dominion over it. Nor did it demand a finding that public use of the path was accompanied by a claim of right or that it was adverse, rather than permissive. And although the County may have made some repairs to the path, there is no evidence that it did so with the intent to own it. The trial court did not err in denying the County’s motions on the issue of prescription.

3. The County contends that the trial court erred in not granting its motion for directed verdict and motion for judgment n.o.v. on the issue of damages claimed by Owens. But it has failed to provide citation as to where in the record it made those motions, and we cannot find them. However, evidence was presented of the value of the destroyed trees and the costs to fill the ditches with dirt and grade the path, which allowed the jury to determine the amount of compensatory damages to a degree of reasonable certainty. Moreover, the verdict was within the range of the evidence as to damages. This contention is without merit.

4. The County contends that the trial court erred in denying its motion for mistrial because of a statement by Owens’s attorney during closing argument. He argued, “We can’t exist in a society where government can just dominate little people. We’ve got a constitution. And they can’t come kick your door down in the middle of the night, law enforcement, and just search your premises without just cause. Although I hear even that’s been done (inaudible).” The County’s attorney moved for a mistrial, complaining that the remark improperly referenced matters not relevant or in evidence. The court overruled the motion, but instructed the jury, “Please wipe that from your minds in its entirety.”

It is not error to refer during closing argument to matters within common knowledge. The trial court did not abuse its discretion in denying the County’s motion for mistrial based on the analogy by Owens’s attorney to illegal government intrusions.

Decided July 3, 2002.

Mixon & Mixon, Warren L. Mixon, for appellant.

Reinhardt, Whitley, Wilmot & Summerlin, Glenn Whitley, for appellee.

5. Irwin County contends that the trial court erred in denying its motions for directed verdict and judgment n.o.v. on the issues of litigation expenses and attorney fees. Owens sought such awards under OCGA § 13-6-11, alleging that the County had acted in bad faith and had caused her unnecessary trouble and expense. Questions of bad faith and unnecessary expense under that Code section are generally for the factfinder. We will affirm an award of attorney fees and expenses if there is any evidence to support it.

In this case, the County sent a work crew to widen the path and otherwise disturb the area without ascertaining the owner of the property. Had the County attempted to determine whether it had a right to do such work, it likely would have discovered that Owens had a claim to the land. Despite notice of Owens’s claim of ownership and the County’s promises that it would not return to the property, the County continued to widen the path, destroy trees, and dig ditches. Such actions supported a finding that the County had acted in bad faith and had put Owens to unnecessary trouble and expense. The trial court did not err in denying the County’s motions.

6. Finally, the County contends that the trial court erred in denying its motion for new trial on the ground that the amount of damages returned in the jury’s verdict was contrary to the evidence. If there is some evidence to support a jury’s verdict, we will not disturb the denial of a defendant’s motion for new trial. This issue was considered and resolved adversely to the County in Division 3. The trial court did not err in denying the County’s motion for new trial.

Judgment affirmed.

Andrews, P. J, and Mikell, J., concur.

       The County filed its appeal in the Supreme Court, which transferred the case to this court.

       (Citation and punctuation omitted.) Magnan v. Miami Aircraft Support, 217 Ga. App. 855, 859 (6) (459 SE2d 592) (1995); Intl. Indem. Co. v. Coachman, 181 Ga. App. 82, 90 (6) (351 SE2d 224) (1986).

       (Citation omitted.) Wolf Camera v. Royter, 253 Ga. App. 254, 255 (1) (558 SE2d 797) (2002).

        Chandler v. Robinson, 269 Ga. 881, 882 (1) (506 SE2d 121) (1998).

       (Punctuation and footnote omitted.) Id. at 883.

       (Citation omitted.) Childs v. Sammons, 272 Ga. 737, 738 (1) (534 SE2d 409) (2000).

       (Footnote omitted.) Chandler, supra at 882.

       See MDC Blackshear, LLC v. Littell, 273 Ga. 169, 171-172 (1) (537 SE2d 356) (2000); Chandler, supra at 882-883; Childs, supra.

       (Footnotes omitted.) Chandler, supra at 883 (2); OCGA § 32-3-3 (c).

        Chandler, supra at 884.

       See generally CSX Transp. v. West, 240 Ga. App. 209, 212-214 (4) (523 SE2d 63) (1999).

        Hall v. State, 259 Ga. 412, 414 (2) (383 SE2d 128) (1989).

       See id.

        Oglethorpe Power Corp. v. Sheriff, 210 Ga. App. 299, 300 (3) (436 SE2d 14) (1993).

        MDC Blackshear, supra at 174 (5).

       See Dept. of Transp. v. Edwards, 267 Ga. 733, 737 (1) (c) (482 SE2d 260) (1997); MDC Blackshear, supra; Oglethorpe Power, supra.

        CSX Transp., supra at 210.


text:
    A02A0682.
    CORN v. THE STATE.
    (568 SE2d 583)
   Johnson, Presiding Judge.

This appeal from criminal convictions challenges several evidentiary rulings by the trial court and the effectiveness of trial counsel. The challenges are without merit, so we affirm the convictions.

Christopher Com was accused of sexually assaulting three children. He denied the accusations and was tried before a jury. At trial, the state presented evidence that in 1997 Corn, his brother and another boy forced a 12-year-old girl to go into an empty press box at a ballpark. Once inside the press box, Corn and the others took turns forcing the girl to perform oral sex on them.

In 1998, an eight-year-old boy was riding his bike when Corn asked him to go into nearby woods to smoke a cigarette. The boy began to go with Com, but stopped. Corn then covered the boy’s mouth, dragged him by the arm into the woods and threatened to kill him. Corn pulled down the boy’s pants and inserted his penis into the boy’s anus.

In 1999, a seven-year-old girl was walking to her school bus stop when Corn accosted her. He grabbed her by the arm, dragged her into an alley, threatened to kill her, pulled down her pants, put his hand over her mouth and inserted his penis into her vagina. Corn then took the girl to a building in the same area and again assaulted her.

The jury found Corn guilty of aggravated child molestation for the 1997 incident. The jury found Com guilty of aggravated sodomy, aggravated child molestation, enticing a child for indecent purposes and kidnapping for the 1998 assault. And the jury found Corn guilty of rape, aggravated sexual battery, aggravated child molestation and kidnapping for the 1999 attack.

The trial court sentenced Corn to serve 30 years in confinement for the 1999 incident, followed by 30 years in confinement for the 1998 incident, followed by 30 years on probation for the 1997 incident. Com moved for a new trial, and the court denied the motion. Com appeals from the denial of that motion.

1. Corn contends that the trial court erred in admitting into evidence three pictures of nude or partially nude women that were found in his bedroom. When the state tendered the pictures, Corn’s attorney told the court that he did not object to their admission into evidence. Because he failed to object to the pictures at trial, Corn cannot object to them for the first time on appeal.

2. Corn claims that the trial court erred in allowing the jury to hear an audiotape of his interrogation by an investigator without first removing irrelevant, argumentative and prejudicial comments made by the investigator. Com, however, has not specified which comments should have been removed or how he was prejudiced. Without specific comments to review, it is impossible for us to determine if any reversible error occurred. Corn has failed to show harmful error by the record.

3. Corn complains that the trial court erred in disallowing defense witness Michelle Morales’ testimony that a young man named Stevie Cordle made statements to her indicating that he, and not Com, had molested the seven-year-old girl and the eight-year-old boy. Corn’s complaint is without merit because Georgia does not recognize such a third-party admission against penal interest which exculpates the defendant. “It is the long-standing rule in this state that declarations to third persons against the declarant’s penal interest, to the effect that the declarant, and not the accused, was the actual perpetrator of the offense, are not admissible in favor of the accused at his trial.” The trial court therefore properly refused to admit Cordle’s purported admission to Morales.

4. Com argues that his trial counsel was ineffective because when he examined Cordle on the witness stand he failed to ask him if he had committed the crimes in question, because he failed to call another man as a witness to ask him if he had committed the crimes in question, because he failed to file a motion to sever offenses and because he failed to object to the introduction of condoms and the three pictures of nude women found in his room.

Which witnesses to call and how to conduct examinations of witnesses are matters of trial tactics and strategy that do not provide a basis for finding counsel’s performance to have been deficient. Accordingly, the decisions by Corn’s attorney as to how to question Cordle and whether or not to call a particular witness do not amount to ineffective assistance of counsel.

Likewise, the decision whether to move for severance is a matter of trial tactics, and the failure to file such a motion does not require a finding that counsel was ineffective. “Moreover, because of the liberal extension of the mle allowing similar transaction evidence in sexual offense cases, the molestation of each victim would have been admissible as a similar transaction at the trial of the other even had the offenses been severed.” Corn has failed to make a clear showing of prejudice as a result of counsel’s decision not to file a motion to sever.

Decided July 3, 2002.

Steven P. Berne, for appellant.

As for the condoms and one of the pictures of a partially nude woman, such sexual paraphernalia found in a defendant’s possession is admissible if it can be linked to the crimes charged. Here, the eight-year-old boy testified that Com wore a condom, and semen was also absent from the seven-year-old rape victim. The condoms found in Corn’s bedroom were thus linked to the crimes and were admissible to explain the absence of semen. Moreover, the picture of the partially nude woman found in Corn’s room was also linked to the attack on the seven-year-old girl because a drawing on that picture is similar to a drawing that was on the overalls worn by the girl’s attacker. Corn’s attorney cannot be said to have been ineffective for failing to object to evidence that was admissible.

In regard to the other two pictures of nude women, even if we assume, without deciding, that the pictures were inadmissible, counsel’s failure to object to the pictures does not establish ineffective assistance. To establish ineffectiveness, a defendant must show not only that trial counsel’s performance was deficient, but also that the deficiency caused sufficient prejudice to deprive him of a fair trial. Here, the evidence of Corn’s guilt, including the identification of him by the victims as well as physical evidence, was overwhelming. Given the overwhelming evidence, it is highly probable that the failure to object to the pictures did not contribute to the guilty verdicts, so any deficiency in counsel’s performance did not cause sufficient prejudice to deprive Corn of a fair trial. Having reviewed the entire record, we find that the trial court did not err in denying Corn’s claim of ineffective assistance of counsel.

Judgment affirmed.

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

James R. Osborne, District Attorney, Laura L. Herrin, Assistant District Attorney, for appellee.

        Phillips v. State, 251 Ga. App. 179,181 (4) (553 SE2d 847) (2001).

       Compare Holland v. State, 221 Ga. App. 821, 825-826 (3) (472 SE2d 711) (1996).

       See In the Interest of S. M. L., 228 Ga. App. 81, 83-84 (4) (b) (491 SE2d 186) (1997); Mantooth v. State, 197 Ga. App. 797, 799 (3) (399 SE2d 505) (1990).

       See McCulley v. State, 273 Ga. 40, 42 (2) (b) (537 SE2d 340) (2000).

       (Citations and punctuation omitted.) Id.

        Rutledge v. State, 237 Ga. App. 390, 392 (2) (515 SE2d 1) (1999).

        Mitchell v. State, 220 Ga. App. 264, 265 (469 SE2d 707) (1996).

       (Citation omitted.) Scroggins v. State, 237 Ga. App. 122, 124 (3) (514 SE2d 252) (1999).

       See Mitchell, supra.

       See Simpson v. State, 271 Ga. 772, 774 (1) (523 SE2d 320) (1999).

       See Quintanilla v. State, 273 Ga. 20, 22 (3) (537 SE2d 352) (2000).

        Collins v. State, 252 Ga. App. 645, 647 (3) (556 SE2d 850) (2001).

       See id. at 648 (3); Green v. State, 249 Ga. App. 546, 554 (4) (547 SE2d 569) (2001).


author: Ruffin, Judge.

text:
    A02A0702.
    GARDEN HILLS CIVIC ASSOCIATION, INC. et al. v. METROPOLITAN ATLANTA RAPID TRANSIT AUTHORITY et al.
    (568 SE2d 586)
   Ruffin, Judge.

Garden Hills Civic Association, Inc. and six homeowners (collectively the appellants) sued Metropolitan Atlanta Rapid Transit Authority (MARTA), the City of Atlanta, and Norman Koplon (collectively the defendants), alleging that the rezoning of approximately forty-seven acres in Atlanta was illegal and unconstitutional. Following a bench trial, the court found that the appellants lacked standing to bring the zoning claims. The trial court further concluded that, even if the appellants had standing, there was no legal basis for reversing the zoning decision. This appeal ensued, and, for reasons that follow, we affirm.

1. The trial court concluded that the appellants lacked standing, finding that Elizabeth McMullen — the only homeowner to testily at trial — failed to demonstrate that she sustained special damages as a result of the zoning decision. With respect to the Garden Hills Civic Association, the trial court concluded that the association lacked independent standing to file suit because it did not own property affected by the rezoning.

In DeKalb County v. Wapensky, the Supreme Court set forth the two-part test for standing in challenges to rezoning cases. First, the aggrieved party “must have a substantial interest in the zoning decision, and second, . . . this interest [must] be in danger of suffering some special damage or injury not common to all property owners similarly situated.” In other words, the complaining party must actually be harmed by the change in zoning. Here, the record does not support the appellants’ contention that they were so harmed.

The record shows that the rezoned property was being developed for a mixture of uses, including “office, housing and retail.” According to McMullen, who owns a house in close proximity to the rezoned property, the new development would harm her interests by increasing the level of noise, light, traffic, crime, and pollution in the area. Michael Smith, a real estate appraiser, testified that the shadows cast from the buildings would diminish the value of McMullen’s property. Smith also testified that the increased traffic, light, and noise would negatively impact property value.

Implicit in the appellants’ argument is that the rezoning led to the development, which, in turn, diminished their property value. Appellants fail to acknowledge, however, that the defendants could have developed the property in the same manner under the existing zoning. Prior to the rezoning, the acreage was zoned a combination of the following: 1-1, RG-6-C, RG-2, and C-3. Charles Kones, a developer on the project, testified that under the prior zoning, he could have developed 3.8 million square feet. Under the rezoning, however, he could develop only 2.8 million square feet. This is because the rezoning was more restrictive than the original zoning. Indeed, Kones testified that there was nothing in the contemplated development under the new zoning “that could not have been done somewhere on the tract as it was previously zoned.” The only reason the developers sought to rezone the property “was to align residential uses against existing residential uses.”

Accordingly, the evidence shows that the appellants were subject to the same harm regardless of whether the property was rezoned. The trial court recognized this fact in its order, noting that the appellants failed to

consider or take into [account] the previous . . . zoning of the property. . . . Under this [previous] zoning, MARTA could have developed more harmful uses than under the C-3-C rezoning. . . . Based upon these considerations, this Court concludes that it is unlikely that a change to a more restrictive zoning classification would result in a decrease in value of. . . McMullen’s property.

The trial court then concluded that the appellants failed to demonstrate any special damages and, thus, lacked standing.

We agree with the trial court. Under the previous zoning, the defendants were free to develop the property in much the same way as they have done under the rezoning. The appellants’ true complaint is not that the property was rezoned, but that it will be developed at all. However, such development is to be expected in a thriving urban community. And the increase in inconveniences stemming from urban growth — such as increased traffic — is insufficient to confer standing.

Decided July 3, 2002.

Chamberlain, Hrdlicka, White, Williams & Martin, Richard N. Hubert, for appellants.

Pursley, Howell, Lowery & Meeks, Charles N. Pursley, Jr., Powell, Goldstein, Frazer & Murphy, Carl E. Westmoreland, Jr., John W. Harbin, Simon H. Bloom, David D. Blum, for appellees.

2. In light of our ruling in Division 1, the remaining enumerations of error are moot.

Judgment affirmed.

Pope, P. J., and Barnes, J., concur.

       See DeKalb County v. Druid Hills Civic Assn., 269 Ga. 619 (502 SE2d 719) (1998) (“a civic association, seeking] to contest a zoning decision . . . must own property affected by the rezoning, or be joined by individual plaintiffs who have standing to do so”) (punctuation omitted).

       253 Ga. 47 (315 SE2d 873) (1984).

       Id. at 48 (1).

       The development’s property located closest to McMullen’s house was zoned for industrial development with no height restrictions on buildings.

       See Lindsey Creek Area Civic Assn. v. Consolidated Govt. of Columbus, 249 Ga. 488, 491-492 (292 SE2d 61) (1982).

       See Macon-Bibb County Planning &c. Comm. v. Vineville Neighborhood Assn., 218 Ga. App. 668, 670-671 (1) (462 SE2d 764) (1995).


author: Miller, Judge.

text:
    A02A0836.
    McDONALD v. THE STATE.
    (568 SE2d 588)
   Miller, Judge.

Citing the general grounds, Travis McDonald appeals his conviction of robbery by snatching from a person over 65. Since sufficient evidence sustains the conviction, we affirm.

“On appeal of a criminal conviction, the standard of review is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” (Citation and punctuation omitted.) Jenkins v. State, 230 Ga. App. 166, 169 (2) (495 SE2d 647) (1998); see Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). OCGA § 16-8-40 (a) (3) provides that a person commits robbery when he with intent to steal suddenly snatches property of another person from that person’s immediate presence. Sentencing is enhanced if the victim is 65 or older. OCGA § 16-8-40 (c).

Construed in favor of the prosecution, the evidence showed that a man grabbed a 68-year-old woman’s purse from her immediate presence while she stood in a grocery store parking lot loading her groceries. Shortly after the crime, police found McDonald nearby possessing or wearing unique clothing that both an eyewitness to the robbery and the victim identified as those worn by the robber. McDonald fled from police before his capture. At trial, the eyewitness positively identified McDonald as the man who snatched the purse.

Decided July 5, 2002.

James D. Crowe, for appellant.

Kenneth W. Mauldin, District Attorney, Julayaun M. Waters, Assistant District Attorney, for appellee.

McDonald challenges the veracity of the eyewitness’s identification. “The determination of a witnesses] credibility, including the accuracy of eyewitness identification, is within the exclusive province of the jury.” (Citations and punctuation omitted.) Jenkins, supra, 230 Ga. App. at 169 (2). This Court neither weighs the evidence nor determines witness credibility. Id. The jury resolves any conflicts in the evidence. Jaber v. State, 243 Ga. App. 562, 563 (533 SE2d 767) (2000). “The testimony of a single witness is generally sufficient to establish a fact.” OCGA § 24-4-8.

Moreover, beyond the eyewitness identification, McDonald’s clothing, his presence in the vicinity, and his flight were evidence of guilt. See Hogans v. State, 251 Ga. 242 (1) (304 SE2d 699) (1983) (jury may consider whether flight constitutes some evidence of guilt). As some evidence sustained the conviction for robbery, we affirm.

Judgment affirmed.

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