text:
    77860.
    TOTAL EQUITY MANAGEMENT CORPORATION v. DEMPS et al.
    (381 SE2d 51)
   Sognier, Judge.

Tammy and Max Demps brought suit against Total Equity Management Corporation seeking recovery for damages incurred when they were injured in a gas explosion in an apartment complex managed by Total Equity. We authorized Total Equity’s interlocutory appeal from the trial court’s denial of its motion for summary judgment and motion to transfer.

The record reveals that appellees were residents of the Simpson Woods apartment complex in Atlanta, which was managed by appellant pursuant to a contract with the owners of the complex. On the afternoon of April 24, 1983, appellee Tammy Demps observed Doris Edwards and two companions, the tenants who lived in apartment 1H directly above appellees, moving furniture and appliances, including their stove, out of their unit, and using a wrench to tamper with the gas meters located in back of the building. Mrs. Demps discovered early the next morning that her apartment had no hot water and went to the management office in the complex to give notice of the problem, but no one was there. Mr. Demps testified by deposition that when he returned home from work around 10:00 a.m., his wife informed him they had no hot water, and he recalled that she was very angry because she believed the upstairs tenants inadvertently had cut off the gas to appellees’ unit rather than to their own. Appellees then went upstairs to investigate, and knocked on the door several times but received no reply. Even though Mrs. Demps smelled gas, appellees entered the apartment. Mrs. Demps testified that Mr. Demps flipped the light switch (although he did not recall doing so), and gas that had leaked into the apartment exploded.

Renee Speight, appellant’s property supervisor, testified that at the time of the explosion many of the tenants, including the residents .of apartment 1H, owned their appliances, and that those who did so made arrangements directly with the gas company for termination of gas service when they moved. Speight acknowledged that appellant had initiated a dispossessory proceeding against Edwards, and the certified copy of the dispossessory proceeding in the instant record reveals that a writ of possession was issued on Friday, April 22, 1983. However, Speight also stated that appellant’s practice was to take possession of a unit only after the writ had been served on the tenant. There is evidence in the record that the county marshal tacked the writ for apartment 1H to the door the morning of the explosion, but there is no dispute that no agent or employee of appellant learned that the writ had been served or that the occupants of unit 1H had moved out until after the explosion occurred and the apartment was inspected. The testimony is in conflict as to whether apartment 1H had a hand operated cutoff valve for the gas line inside the apartment before the explosion, but all witnesses agree that upon inspecting the unit after the fire, they found no such valve.

1. Appellant contends the trial court erroneously denied its motion for summary judgment made on the ground that appellees were licensees in apartment 1H, and thus appellant was not liable for their injuries because it had no knowledge that Edwards had vacated the unit and left the gas line uncapped.

In Georgia, an agent who undertakes complete control and responsibility for management of a property owes the same duty as the owner would owe to third parties for injuries resulting from the agent’s negligence, Ramey v. Pritchett, 90 Ga. App. 745, 751 (3) (84 SE2d 305) (1954), and our review of appellant’s management contract leads us to the conclusion that this principle applies in the case at bar. Appellant does not contest the application of this principle, instead resting its argument on the contention that appellees were invitees in their own apartment but became licensees when they entered apartment 1H.

“ ‘The general test as to whether a person is an invitee or a licensee is whether the injured person at the time of the injury had present business relations with the owner of the premises which would render his presence of mutual aid to both, or whether his presence on the premises was for his own convenience, or on business with others than the owner of the premises. In the absence of some relation which inures to the benefit of the two, or to that of the owner, no invitation may be implied, and the injured person must be regarded as a licensee. [Cits.]’ [Cit.]” Higginbotham v. Winborn, 135 Ga. App. 753, 755 (1) (218 SE2d 917) (1975); see OCGA § 51-3-2 (a).

In the instant case, appellees argue that they had the right to enter Edwards’ apartment in order to investigate a threat to their own property. There is no dispute that appellees entered apartment 1H, in which they had no right of possession, without invitation from or notice to anyone, for the purpose of determining whether the occupants had turned off appellees’ gas supply. Accordingly, under the applicable case law the evidence unequivocally established that, although appellees were invitees in their own apartment and in the building’s common areas, once they crossed the threshold of apartment 1H they became licensees. See Armstrong v. Sundance Entertainment, 179 Ga. App. 635 (347 SE2d 292) (1986).

While an owner is liable to an invitee for damages arising from his failure to exercise ordinary care in maintaining the safety of the premises, OCGA § 51-3-1, the owner is liable to a licensee “only for willful or wanton injury.” OCGA § 51-3-2 (b). Accordingly, appellant is liable for physical injuries suffered by appellees as licensees only if (a) appellant knew or had reason to know of the condition and should have realized that it involved an unreasonable risk of harm to appellees, and should have expected that they would not discover or realize the danger; and (b) appellant failed to exercise reasonable care to make the condition safe, or to warn appellees of the condition and the risk involved; and (c) appellees did not know or have reason to know of the condition and the risk involved. Bragg v. Missroon, 186 Ga. App. 803, 804 (368 SE2d 564) (1988).

Appellees argue that a factual dispute exists on this issue because appellant knew that Edwards owned her own stove and had initiated dispossessory proceedings against her. However, we agree with appellant that there is no evidence in the record that it knew or should have known of the danger posed by the uncapped gas line in apartment 1H. There is no dispute that before the Monday morning explosion, appellant was not aware that the residents of apartment 1H had moved out on Sunday afternoon, that they had disconnected the gas line to their stove, or that they had cut off gas service to appellees’ unit. Although a writ of possession had been issued for unit 1H on the preceding Friday, the record reveals that the writ was not executed until Monday morning shortly before the accident at issue, and appellant’s onsite agents were not aware of this execution and thus had done nothing to take possession of the apartment. Further, appellees have acknowledged that they were cognizant of the risk, as they had seen Edwards and her companions tampering with the gas meter, and Mrs. Demps admitted smelling gas before she and her husband walked inside the unit. See generally Nixon v. Edmonson, 177 Ga. App. 662, 663 (340 SE2d 278) (1986).

We find appellees’ citation to Wilson v. Central of Ga. R. Co., 132 Ga. 215 (63 SE 1121) (1909) inapposite, as that case addressed the liability of one whose negligence led to the damages incurred by a plaintiff injured while trying to avoid the hazard created by the defendant, whereas in the case at bar appellees were injured as a consequence of a condition created by a third party without appellant’s knowledge. Nor do we agree that OCGA § 44-7-14 imposes liability upon appellant, as that statute would apply if appellees had been present at the express or implied invitation of Edwards. Yates v. Crumbley, 116 Ga. App. 366 (157 SE2d 295) (1967). Moreover, appellant had no duty to inspect apartment 1H while Edwards was in possession, and cannot be held liable for her negligence absent notice of the hazardous condition she created. Howell Gas of Athens v. Coile, 112 Ga. App. 732, 738-740 (146 SE2d 145) (1965). Thus, we find appellant was entitled to summary judgment on the issue of negligence. See generally Gill Plumbing Co. v. Macon, 187 Ga. App. 481 (370 SE2d 657) (1988).

2. Appellees contend appellant was negligent per se in failing to install a cutoff valve in apartment 1H as required by applicable City of Atlanta ordinances. Appellant counters this allegation by arguing that the code sections cited by appellees applied only to the owner and builder of the complex, and asserts also that the deposition testimony of its maintenance worker established that the unit did have a cutoff valve at the time of the incident at issue.

Violation of an ordinance governing installation of gas lines and cutoff valves constitutes negligence per se. Atlanta Gas Light Co. v. Slaton, 117 Ga. App. 317, 321-322 (3) (160 SE2d 414) (1968). While the parties disagree as to which ordinances apply here, each ordinance at issue required a cutoff valve. Also, although the parties likewise dispute who owed the duty to ensure that a cutoff valve was installed, where, as here, each ordinance is written in the passive voice the duty imposed is placed upon “the person in control of [the gas] outlet, whether he be the landlord, a tenant, or another.” Id. at 321.

We agree with appellees that a factual dispute exists as to whether apartment 1H had the requisite cutoff valve. Thé testimony of appellant’s agents on the subject is not so direct and unequivocal as to pierce appellees’ allegations, see generally Thacker v. Matthews Tuxedo, 183 Ga. App. 474, 475 (359 SE2d 231) (1987), especially given that all witnesses agree no cutoff valve was found in the apartment after the explosion. Further, there remains a jury question regarding who was in control of the gas outlet and thus responsible for ensuring the valve was installed, as the record does not disclose whether the gas lines to apartment 1H had been repaired or altered since installation, or who installed the stove Edwards removed.

“While we are mindful that an intervening act of negligence [such as Edwards’ apparent failure to secure the gas line properly] can insulate a prior act of negligence as the proximate cause of an occurrence we do not consider any conduct as shown by the evidence in this case to be such as to demand a holding, as a matter of law, that the violation of the city ordinance is not a factor in the proximate cause of the explosion, either alone or in combination with other factors. The purpose of the ordinance as a safety measure to prevent just what did happen in the present case is so obviously relevant to the consideration of proximate cause that it requires no further discussion.” Atlanta Gas Light, supra at 322. Accordingly, we find the trial court properly denied summary judgment on the issue of negligence per se. See Northwestern &c. Ins. Co. v. McGivern, 132 Ga. App. 297, 301 (2) (208 SE2d 258) (1974).

3. Appellant also enumerates as error the trial court’s denial of its motion to transfer the case to superior court. The record reveals that appellees originally filed their complaint in superior court but subsequently dismissed and then renewed the action pursuant to OCGA § 9-2-61 in state court. Appellant argues that under Uniform Superior Court Rules 3.1 and 3.2, appellees were required to file their renewal action before the same court and judge as the prior action. We do not agree.

OCGA § 9-2-61 establishes an exception to the statute of limitation, but makes no reference to the subject of venue. Consequently, Georgia courts have long recognized that a renewal action may be brought in any court of the State in which jurisdiction is proper. Hornsby v. Hancock, 165 Ga. App. 543, 544 (301 SE2d 900) (1983). We read Rule 3.1, which governs assignment of cases among judges of a superior court, and Rule 3.2, which provides that all action involving the same subject matter shall be assigned to the same judge, to govern case assignment within a particular superior court, and do not agree with appellant that these rules limit a litigant’s right to file an action in a different court which also has jurisdiction of the action.

Judgment affirmed in part and reversed in part.

Carley, C. J., and Been, P. J., concur.

On Motion for Rehearing.

Appellant has moved this court to reconsider Division 2 of the instant opinion on the ground that because it is a management company and did not construct the apartment building, the City of Atlanta code provisions are inapplicable to it as a matter of law. Contrary to appellant’s assertions, the record reveals that both at the time the apartments were built and also at the time the accident occurred, the City of Atlanta gas and heating, ventilation, and air conditioning codes required manual gas cutoff valves within apartments for gas appliances. Since we issued the above opinion, Thompson v. Crownover, 259 Ga. 126 (377 SE2d 660) (1989), was decided. We now recognize a state policy of prevention of unsafe residential housing, especially low income housing such as the apartment complex in the case sub judice. Landlords may be liable in tort for defective construction or failure to repair, which includes failure to exercise reasonable care to correct a condition that exists in “violation of the duties created by the housing codes and other legislation.” (Emphasis supplied.) Id. at 129 (2, 3). Accordingly, violation of the City of Atlanta ordinances at issue may be actionable in tort because, like housing codes, these provisions were adopted to “provide minimum standards and regulations to safeguard life, limb, health, property, and public welfare” of the City’s citizens. See id. Although appellant argues it should not be liable for failure to comply with the applicable codes because the building was constructed by others, these code sections expressly apply to the alteration, repair, use, and maintenance of gas equipment and appliances, not just to initial construction, and appellant’s maintenance employee testified that his duties included repair and preventive maintenance of the gas lines within the apartments. Thus, there is a jury question as to whether appellant exercised reasonable care to correct any applicable code violations. Moreover, under the decision in Thompson, there is a question of fact as to whether the condition of the apartment gas line violated the local housing codes, which we cannot determine from the record before us, and whether appellant failed to exercise reasonable care to correct it. Id. at 129 (4).

Decided February 28, 1989

Rehearing denied March 23, 1989

Lokey & Bowden, Glenn Frick, Sue K. Nichols, for appellant.

William Q. Bird, Long, Aldridge & Norman, John L. Watkins, for appellees.


source: Caselaw Access Project

author: Pope, Judge.

license: Public Domain

text:
    77867.
    MOORE v. PREFERRED RESEARCH, INC.
    (381 SE2d 72)
   Pope, Judge.

In 1979, plaintiffs Earnest N. Moore and Preferred Research of Atlanta, Inc., entered into a written licensing agreement with defendant Preferred Research, Inc. (PRI) for exclusive rights in a specified territory to certain “techniques and procedures” developed by PRI “in the fields of courthouse records research and verification, credit investigations, examination of records effecting title to real estate and personal property and related services . . . .” The agreement contained a covenant not to compete whereby the plaintiffs agreed not to engage “in a similar business to that licensed and established hereunder within an airline radius of twenty-five (25) miles of any of [plaintiffs’] places of business” for a period of twelve months after terminating the. agreement. In 1986, plaintiffs brought suit against defendant alleging breach of contract and, by amended complaint, plaintiffs sought a declaratory judgment determining the enforceability of the restrictive covenant contained within the licensing agreement. The trial court granted defendant’s motion for partial summary judgment and held the restrictive covenant to be enforceable. Plaintiffs appeal.

1. The first issue on appeal is whether the restricted activities are reasonable or overly broad. The restrictive covenant in this case prohibits plaintiffs from engaging in a “similar business to that licensed and established hereunder” within a certain geographical area. To determine what activities are thus restricted, one must look to other provisions of the agreement which define the business activities licensed under the agreement. One of the preamble paragraphs of the agreement states that the licensed techniques and procedures relate to “the fields of courthouse records research and verification, credit investigations, examination of records effecting title to real estate and personal property and related services . . . .” (Emphasis supplied.) Plaintiffs argue that the phrase “and related services” is vague and indefinite and thus renders the restrictive covenant unenforceable.

The licensing agreement at issue in this case “is analogous to an employment contract for purposes of analyzing the covenant not to compete.” Watson v. Waffle House, 253 Ga. 671, 672 (324 SE2d 175) (1985). “The rule of reason is the overarching standard to be applied in all cases involving covenants not to compete .... The scope of activities restricted will be found reasonable when there is a rational relationship between those activities and the activities the employee conducted for his former employer. The relationship between activities during employment and activities prohibited is interpreted with reference to the individual situation.” Wesley-Jessen, Inc. v. Armento, 519 FSupp. 1352, 1356-1357 (N.D. Ga. 1981). So long as the restricted activities are reasonably related to the business interests which the employer seeks to protect, the restricted covenant is enforceable. See Edwards v. Howe Richardson Scale Co., 237 Ga. 818 (229 SE2d 651) (1976).

Here, the restricted activities are limited to those specified procedures “and related services” licensed by the defendant. By definition, only those activities licensed by the agreement are restricted. See Pierce v. Industrial Boiler Co., 252 Ga. 558, 559 (315 SE2d 423) (1984) (where a restrictive covenant was limited to a specific business “in any capacity held by the employee,” because the employee was employed only as a salesman in said business, then by definition “this activity alone [was] prohibited by the covenant” and it was found not to be overly broad). The covenant not to compete at issue in this appeal is similar to the one at issue in Wesley-Jessen v. Armento, supra. In Wesley-Jessen, as in the case now before us, the covenant not to compete incorporated language set forth earlier in the contract describing the scope of employment. The covenant prohibited the employee from selling contact lenses “and related products and services.” Applying Georgia law, the federal trial court found the covenant was enforceable because it did not restrict the employee from working for a competitor in any capacity or in an area unrelated to the field of expertise gained at the employer’s expense. See also Edwards v. Howe Richardson Scale Co., supra (where a covenant not to engage in certain specified activities “ ‘or in any similar business which is competitive with the business of the [employer] ... at the date [the employee’s] employment is terminated’ ” was held enforceable because it was reasonably related to the business interest which the employer sought to protect).

Contrary to plaintiffs’ assertions, the language now before us is not analogous to that in Wilson v. Center Bros., 250 Ga. 156 (296 SE2d 589) (1982), wherein a covenant which prohibited the employee from engaging in a specified business “and related trades” was found to be unenforceable. In Wilson, the covenant attempted to restrict the employee in activities other than those he performed for the employer. However, the phrase “and related services” in the agreement now before us defines the activities which the plaintiff was licensed to perform under the agreement. Therefore, when read in conjunction with the covenant not to compete, the restricted activities are synonymous with, not broader than, the licensed activities.

In Lokey v. Preferred Research, 254 Ga. XXIV (1985), the Georgia Supreme Court affirmed, without written opinion, a lower court ruling enforcing the restrictive covenants of an almost identical licensing agreement between Preferred Research, Inc., and another of its licensees. The lower court order in Lokey and the litigants’ briefs before the Georgia Supreme Court were made part of the record in the case now before us. Plaintiffs argue the Lokey opinion is irrelevant because the order and appellate briefs show that the significance of the “related services” clause was not addressed in that appeal. Plaintiffs argue instead that we should follow the rationale set forth in the order of the United States District Court in Stephenson v. Preferred Research, Case No. C87-1974, slip op. (N.D. Ga., December 15, 1987), in which the federal trial court held the covenant not to compete in a licensing agreement between Preferred Research, Inc., and another of its licensees was unenforceable. In the Stephenson order, the United States District Court mistakenly recited that the agreement in Lokey did not include the “related services” clause. That portion of the record in the Lokey case which is now before us shows the Lokey agreement was, in all material respects, identical to the one at issue in the case now before us, including the use of the “related services” clause. Even though the significance of that clause was not argued before the Supreme Court, we must assume the Supreme Court reviewed the agreement in its entirety in the course of affirming the trial court’s order. We are not constrained to follow the federal court order in the Stephenson case, particularly in light of its mistaken assumption that the Lokey agreement did not contain the disputed language. We find that the covenant not to compete now before us is not overly broad in the activities which it restricts.

2. The second issue is whether the territorial restrictions are overly broad. The restrictive covenant prohibits plaintiffs from engaging in competition “within an airline radius of twenty-five (25) miles of any of [plaintiffs’] places of business within the [licensed] territory. . . While the licensed territory included seventeen counties in and around metropolitan Atlanta, plaintiffs did not actually conduct business in all of the licensed counties. Plaintiffs argue that the territorial restriction is overly broad because it would restrict plaintiffs from competing in counties in which it never conducted business. However, the clear and unambiguous language of the covenant prohibits competition only within a twenty-five mile radius of plaintiffs’ “places of business.” It does not prohibit competition within twenty-five miles of the entire territory licensed to plaintiffs. The record shows plaintiffs’ sole place of conducting business pursuant to the agreement was an address in Atlanta, Georgia. The covenant would thus restrict competition only within twenty-five miles of plaintiffs’ former place of business. The restricted territory is thus much smaller in area than the seventeen-county area in which the plaintiffs were licensed to conduct business and plaintiffs do not deny that they actually conducted business within the restricted radius. Territorial restrictions which relate to the territory in which the employee was actually employed are generally upheld. Barry v. Stanco Communications Prods., 243 Ga. 68 (252 SE2d 491) (1979). We find the territorial restriction to be reasonable “in view of the facts and circumstances surrounding the case.” Id. at 70.

3. Subsequent to the filing of the notice of appeal in this case, the trial court issued a restraining order enjoining plaintiffs from violating the restrictive covenant contained within the lease agreement. Plaintiffs filed four separate notices of appeal to the Supreme Court in regard to the restraining orders. Defendants moved for transfer of this appeal to the Supreme Court so that the appeal of the trial court’s order granting partial summary judgment to defendant and the appeals from the trial court’s restraining order could be reviewed simultaneously by the same court. We have reviewed the notices of appeal in regard to the restraining order and find that they do not raise an issue as to the enforceability of the restrictive covenant. Instead, the notices of appeal to the Supreme Court assume the enforceability of the restrictive covenant and merely raise the issue of whether the trial court’s restraining order exceeds the terms of the restrictive covenant. The Court of Appeals, and not the Supreme Court, has jurisdiction of the issues on appeal now before us. Consequently, we deny defendant’s motion to transfer this appeal to the Supreme Court or, alternatively, to stay these proceedings until the Supreme Court has ruled on the appeals pending before it on the separate and distinct issues in equity raised by those appeals.

Judgment affirmed. Motion to transfer denied.

McMurray, P. J., and Benham, J., concur.

Decided March 8, 1989

Rehearing denied March 23, 1989

Alston & Bird, Peter M. Degnan, John E. Stephenson, Jr., for appellant.

James M. Crawford, Christopher J. McFadden, for appellee.


author: Deen, Presiding Judge. Carley, Chief Judge,

text:
    77892.
    F. A. REECE ENTERPRISES, INC. v. WINNINGS.
    (380 SE2d 747)
   Deen, Presiding Judge.

Appellant-defendant entered into a written contract to make certain repairs and improvements to appellee-plaintiffs house. Alleging a failure to perform the repairs and improvements in a workmanlike manner, appellee filed suit against appellant in the Magistrate Court of DeKalb County. However, the magistrate court determined that it lacked jurisdiction and transferred the case to the State Court of DeKalb County. Appellant then made a motion to re-transfer the case to the magistrate court but the state court denied the motion. Thereafter, appellee amended her complaint, seeking damages in an amount significantly greater than that which she had originally sought in the magistrate court. The case proceeded to a jury trial. At the close of appellee’s evidence and then at the close of all the evidence, appellant moved for a directed verdict. The motions were denied and the case was submitted to the jury. A verdict in the amount of $6,500 was returned in favor of appellee. Appellant appeals from the judgment entered by the trial court on the jury’s verdict.

1. Appellant enumerates as error the trial court’s denial of its motions for directed verdict, urging that appellee failed to meet her burden of proof as to damages. “Where a party sues for damages, he has the burden of proof of showing the amount of loss in a manner in which the jury . . . can calculate the amount of the loss with a reasonable degree of certainty. An allowance for damages cannot be based on guess work. [Cit.]” Big Bldr. v. Evans, 126 Ga. App. 457, 458 (2) (191 SE2d 290) (1972). “To justify an award of damages . . . there must be some evidence from which the trior of fact can arrive at some definite sum constituting the damages. . . . [Cits.]” Allstate Ins. Co. v. Austin, 120 Ga. App. 430, 434 (2) (170 SE2d 840) (1969).

In the instant case, appellee contracted with appellant for home repairs and construction, including the major items of reroofing the house and building and painting a picket fence; for that work, appellee paid $12,120. From the bevy of photographs submitted by both parties, it is readily apparent that the construction and painting of the fence constituted approximately one-half of the contracted work. One expert witness, who held a master’s degree in engineering and who owned his own painting and contracting company, testified that the fence was probably the worst he had ever seen, and recommended totally replacing the fence rather than patching it up. This expert witness also testified that repairs to the living room ceiling due to water damage caused by a leaking roof (after the appellant’s reroofing of the house) would cost several hundred dollars, and similar repairs to the ceiling in an adjoining closet would cost at least $50. Appellee also had to pay someone $200 to clean up the rubbish left by appellant’s crew.

The above provided adequate evidentiary basis to support the jury’s award of $6,500. Accordingly, the trial court properly denied appellant’s motion for directed verdict.

2. Appellant also enumerates as error the trial court’s denial of its motion to transfer back to the magistrate’s court. Appellant contends that the magistrate court had jurisdiction under OCGA § 15-10-2 (5) because the claim was for $2,500 and defendant was in default in that court, so that damages could not exceed that amount. However, it appears from the nature and size of the pro se claim as presented in the magistrate court that the claim was for an unliquidated, larger amount. That apparently is what prompted both the magistrate court to transfer the case pursuant to the Uniform Transfer Rules and the state court to refuse to relinquish jurisdiction. Since the amount sought actually exceeded the magistrate’s jurisdictional ceiling, the state court properly retained the case.

Judgment affirmed.

McMurray, P. J., Pope, Benham and Beasley, JJ., concur. Carley, C. J., Banke, P. J., Birdsong and Sognier, JJ., dissent.

Carley, Chief Judge,

dissenting.

A review of the record shows that “[a]ppellee did not meet the burden of providing the jury ‘data sufficient to enable them to estimate with reasonable certainty the amount of damages.’ Therefore, the trial court erred in failing to direct a verdict for appellant.” Accent Walls v. Parker, 162 Ga. App. 633, 634 (1) (292 SE2d 509) (1982). Accordingly, I must respectfully dissent to the majority’s affirmance of the judgment in this case.

“Where a party sues for damages, he has the burden of proof of showing the amount of loss in a manner in which the jury . . . can calculate the amount of the loss with a reasonable degree of certainty. An allowance for damages cannot be based on guess work. [Cit.]” Big Bldr. v. Evans, 126 Ga. App. 457, 458 (2) (191 SE2d 290) (1972). “To justify an award of damages . . . there must be some evidence from which the trior of fact can arrive at some definite sum constituting the damages. . . . [Cits.]” Allstate Ins. Co. v. Austin, 120 Ga. App. 430, 434 (2) (170 SE2d 840) (1969). “The burden is on the plaintiff to show both the breach and the damage ([cit.]), and this must be done by evidence which will furnish the jury data sufficient to enable them to estimate with reasonable certainty the amount of the damages. [Cits.] It cannot be left to speculation, conjecture and guesswork. [Cit.]” Bennett v. Assoc. Food Stores, 118 Ga. App. 711, 716 (2) (165 SE2d 581) (1968). The majority bases its decision entirely upon speculation, conjecture and guesswork.

Decided March 15, 1989

Rehearing denied March 23, 1989

Jack V. Dorsey, for appellant.

The photographs upon which the majority relies may constitute evidence of appellant’s breach of contract through poor workmanship, but they are not relevant evidence as to the issue of damages. See Holder v. J. F. Kearley, Inc., 153 Ga. App. 843, 845 (6) (267 SE2d 266) (1980). The conclusion that the fence “constituted approximately one-half of the contracted work” is no more than mere speculation. Moreover, it is entirely irrelevant whether the fence may have represented one-half of the work contemplated by the contract. Whether the fence represented one-half of the contract price that appellee agreed to pay for the work would be the relevant inquiry. There was absolutely no evidence that the fence represented one-half of the consideration that appellee paid appellant. The majority cites no authority for the proposition that the testimony as to repair costs of “several” hundred dollars and “at least” fifty dollars would be sufficiently definite to support an award of damages. The majority notes that there was testimony that appellant had paid $200 to have her yard cleaned. However, the majority fails to note that there was no evidence that the clean-up of appellee’s yard was appellant’s contractual responsibility. Moreover, the undisputed evidence shows that the work for which appellee paid $200 encompassed considerably more than just the removal of the construction debris left behind by appellant. The $200 included mowing the grass, trimming the bushes and other general yardwork. There was no evidence as to what part of the $200 was attributable to the removal of construction debris and what part was attributable to the general yardwork. It is my opinion that the evidence as to damages is entirely speculative and totally deficient. The trial court’s denial of appellant’s motion for a directed verdict should be reversed. I must, therefore, respectfully dissent.

I am authorized to state that Presiding Judge Banke, Judge Birdsong and Judge Sognier join in this dissent.

Pamela L. Tremayne, for appellee.


author: Benham, Judge.

text:
    77924.
    ADC CONSTRUCTION COMPANY v. HALL.
    (381 SE2d 76)
   Benham, Judge.

A construction contract dispute arose between appellant contractor, ADC Construction Company (ADC), and appellee Hall, a subcontractor doing business as H & H Construction Company. Hall sued ADC for payment of the money he contended was owed to him for the work he performed on an apartment complex drywall system. One of ADC’s defenses to the lawsuit was that Hall had violated the Nonresident Contractor Act, OCGA § 48-13-30 et seq. ADC’s position was that Hall was a resident of Tennessee, not Georgia, and that since he had failed to register with the commissioner or otherwise comply with the Act he could not maintain his claim against ADC. ADC moved to dismiss Hall’s claim against it, Hall responded that he was not a nonresident for purposes of the Act, and the trial court ruled that the residency issue was a question of fact that needed to be resolved before the other issues could be tried. Pursuant to the trial court’s order, a jury trial was held on the residency issue, and the jury found that Hall was a resident of Georgia during the time he was engaged in his contracting business. ADC seeks review and reversal of the judgment in Hall’s favor on this issue. We find no error and affirm the judgment.

1. Appellant argues that the trial court erred in denying its motions for directed verdict. More specifically, ADC contends that the “domicile,” not “residence,” of the contractor is determinative of whether that contractor must comply with the Nonresident Contractor Act, and that there being insufficient evidence to support a finding that Hall was domiciled in Georgia, a directed verdict was required. We disagree with appellant’s analysis of the law and its view of the facts.

The Nonresident Contractor Act does not define the terms “resident” or “nonresident” and so we must assume that the legislature intended the ordinary meaning of those words to apply. See OCGA § 1-3-1 (b); Sabel v. State, 248 Ga. 10, 12 (282 SE2d 61) (1981). “[Residence and domicile are not synonymous. . . . [A] person may have two places of residence but only one domicile. Residence means living in a particular locality and simply requires bodily presence as an inhabitant in a given place. [Cit.] In consideration of this type question the courts have made a distinction between legal residence and actual residence. The best approach is to give the term a fair common sense construction. [Cits.]” Griffin v. State Farm &c. Ins. Co., 129 Ga. App. 179, 182 (199 SE2d 101) (1973). “Residence usually includes an intent to live in the place for the time being. [Cit.] Domicile, unlike residence, means a permanent place of habitat. [Cit.]” Smiley v. Davenport, 139 Ga. App. 753, 756 (229 SE2d 489) (1976). If the legislature wanted a contractor’s domicile to determine his liability under the Act, it would have used that word or defined “residence” as meaning “domicile.” See, e.g., OCGA § 21-2-2 (27). The trial court did not err in deciding that the issue was one of residence and not domicile. Even if the question were one of domicile, where the facts are conflicting, it is still a mixed question of law and fact, and insofar as it involves ascertaining the intention of the party, it is within the jury’s province to make the determination. Id.

Decided March 8, 1989

Rehearing denied March 23, 1989

Fishman, Kendrick & Gordon, Richard A. Gordon, for appellant.

Weinstock, Scavo & Montalto, Steven Montalto, for appellee.

The facts presented at trial were sufficient to overcome appellant’s motion for directed verdict on the issue of residence. Throughout the proceedings Hall contended that he was a resident of Georgia. The evidence showed that in 1984, before and at the time of contracting with ADC, Hall lived in a trailer park in Marietta, Georgia; that he and his wife had previously lived in Tennessee, but when they separated she rented out the house in which they had lived; and that he had moved to Georgia, intending to live and find work in the state. Hall further testified that he did not maintain living quarters in Tennessee during the time in question; that during that time he had done work for other contractors in Georgia and the W-2 forms he received listed his Georgia address; and that he lived at the Marietta address with his son and his brother and used that address for his checking account with a Cobb County bank. Hall had also considered buying land and building a home for himself in Georgia. Under the definition of residence set out above, it could not be said as a matter of law that Hall was not a resident of Georgia. The motion was properly denied.

2. Appellant also challenges the trial court’s rejection of its proposed jury instructions that framed the issue in terms of domicile rather than residence, and the trial court’s charge that “residence usually includes an intent to live in the place for the time being.” In view of the resolution of this issue in Division 1 of this opinion, we find no merit in this enumeration.

Judgment affirmed.

McMurray, P. J., and Pope, J., concur.


author: Banke, Presiding Judge.

text:
    77130.
    THE STATE v. STEWART.
    (381 SE2d 50)
   Banke, Presiding Judge.

The appellee-defendant, charged with possession of less than an ounce of marijuana, driving under the influence of alcohol, and improper lane change, filed a motion for discharge and acquittal based on the state’s failure to try him within two terms after he had filed a demand for trial pursuant to OCGA § 17-7-170. See Hubbard v. State, 254 Ga. 694 (333 SE2d 827) (1985). The trial court granted the motion, and the state appeals.

On April 12,1987, the defendant was arrested and issued uniform traffic citations charging him with the offenses. The citations directed him to appear in the Municipal Court of Lilburn, Georgia, to answer the charges; however, prior to any such appearance, his counsel sent a letter to the clerk of the municipal court requesting “that all charges pending against [the defendant] in this court be transferred to the State Court of Gwinnett County and that this case be tried before that court and a jury in accordance with the provisions of OCGA § 17-7-170.” The municipal court thereupon forwarded the case file, including the demand letter, to the state court, where the defendant subsequently filed his motion for discharge and acquittal.

It is undisputed that there were jurors impaneled and qualified to try the case in the state court at all times pertinent to this appeal. The terms of the State Court of Gwinnett County begin in January, March, May, July, September, and November of each year (Ga. L. 1981, pp. 3033, 3034, § 2). After the case was transferred to the state court, the parties entered into a consent order specifying that the demand for trial had been entered during the May term of the state court; that the case had been placed on a trial calendar during the July term; and that the case had thereafter been continued to the September term by agreement of the parties. The case was placed on two calendars during the September term; however, no further activity is indicated by the record until the November term, when a ruling was entered on certain pre-trial motions which had been filed by the defendant. The trial court ultimately granted the appellee’s motion for discharge and acquittal on May 5, 1988. The state contends that this ruling was in error because the language of the demand letter was insufficient to invoke the sanctions of OCGA § 17-7-170 and because the defendant, in any event, waived his rights under the Code section by consenting to a continuance of the case in the state court. Held:

We do not address the sufficiency of the demand letter because we agree that the defendant waived his rights under the Code section by consenting to the continuance of the case. We note in passing that since the parties have stipulated that the demand was made prior to July 1, 1987, its sufficiency is not affected by the 1987 amendment to OCGA § 17-7-170 (a), see Ga. L. 1987, p. 841, § 1, but is governed by pre-existing law.

Decided February 27, 1989

Rehearing denied March 27, 1989

Gerald N. Blaney, Jr., Solicitor, David M. Fuller, Assistant Solicitor, for appellant.

C. Alan Mullinax, for appellee.

It has been held that “[a] waiver of the demand would result from a continuance granted on the motion of the accused, or from any other act on his part showing affirmatively that he consented to passing the case until a subsequent term.” Walker v. State, 89 Ga. 482, (15 SE 553) (1892). See also State v. Allen, 165 Ga. App. 86, 87 (299 SE2d 158) (1983). Inasmuch as the parties have stipulated both that the demand in the present case was entered during the May term of the state court and that the case was thereafter continued to the September term by agreement, and inasmuch as this continuance prevented the case from being tried within “the next succeeding regular term” after the May term, it follows that the defendant must be deemed to have waived any rights he may have had under OCGA § 17-7-170, with the result that the trial court erred in granting his motion for discharge and acquittal. Accord State v. McNeil, 176 Ga. App. 323 (335 SE2d 728) (1985); Frank v. State, 145 Ga. App. 678, 679 (244 SE2d 619) (1978); Adams v. State, 129 Ga. App. 839 (201 SE2d 649) (1973).

Judgment reversed.

Birdsong and Beasley, JJ., concur.


text:
    77213.
    ROSE v. O’BRIEN.
    (380 SE2d 730)
   Benham, Judge.

This appeal is from an order granting summary judgment to appellee on the ground that appellant’s suit was barred by the statute of limitation. Appellant brought suit against appellee to recover sums appellant contends were loaned to appellee over a period of time. Among other defenses, appellee asserted that since the last advance of money was made more than four years before appellant filed suit, the claim was barred by the period of limitation established in OCGA § 9-3-25. The trial court agreed.

1. The record in this case contains affidavits filed by the parties. In appellant’s affidavit, he averred that the parties had an agreement for a continuing loan to be made, that repayment was to be made 'hen appellee could or when appellant made demand for repayment reasonable time in the future, and that appellant had made a deíand within the period of limitation and less than four years before ringing suit. A reasonable time for making a demand in such a case as been held to be a time within the period of limitation. Scarboro v. Ralston Purina Co., 160 Ga. App. 576, 578 (287 SE2d 623) (1981). ’he portion of appellee’s affidavit pertinent to the statute of limitaion issue is an averment that the loans were made more than four ears earlier.

Decided March 10, 1989

Rehearing denied March 27, 1989.

Lamb & Associates, Melody R. Hennick, Steven B. Horowitz, for appellant.

Harmon, Smith & Bridges, Marian B. Wilbanks, for appellee.

As may be seen, there is no basis in the record for granting sum-nary judgment to appellee. The evidence on file presents a question >f what the agreement of the parties was with regard to the time for >aying back the loan and for making demand for repayment, as well is when demand was made. Appellee relies extensively on depositions, )ut there are none in the record and the clerk of the trial court has lertified to this court that no depositions have been filed in this case, since the evidence on file does not demand a finding that enforcenent of the alleged promise is barred by the statute of limitation, the 'rant of summary judgment on that ground was error.

2. Appellee also argues that he was entitled to summary judgnent on the ground that since the alleged promise to pay was not to De performed within a year, enforcement of the promise is barred by ¿he Statute of Frauds. OCGA § 13-5-30 (5). However, appellant has sworn that he fully performed his part of the bargain he asserts existed between the parties by advancing the money to appellee. The Statute of Frauds does “not extend to the following cases: ... (2) Where there has been performance on one side, accepted by the other in accordance with the contract; (3) Where there has been such part performance of the contract as would render it a fraud of the party refusing to comply if the court did not compel a performance.” OCGA § 13-5-31. See generally Wilson v. Whitmire, 212 Ga. 287, 290 (92 SE2d 20) (1956). If appellant’s version of the facts of this case were to be accepted by a jury, enforcement of the promise to pay would not be barred by the Statute of Frauds.

Judgment reversed.

McMurray, P. J., and Pope, J., concur.


text:
    77363.
    BOYD et al. v. ORKIN EXTERMINATING COMPANY, INC.
    (381 SE2d 295)
   Banke, Presiding Judge.

Mr. and Mrs. Boyd brought this action on their own behalves and as next friends of their five minor children to recover actual and punitive damages for personal injuries and property loss allegedly caused by Orkin Exterminating Company’s negligent misapplication of insecticide in their home. The trial court concluded that the claims asserted by Mr. and Mrs. Boyd on their own behalves were time barred and consequently entered summary judgment against them. With respect to the children’s claims, partial summary judgment was granted to Orkin to the extent that damages were sought for the “increased risk of cancer” to which they had been allegedly exposed by virtue of the alleged misapplication of the chemicals, and the case proceeded to trial on their remaining personal injury claims. However, at the close of the evidence the trial court directed a verdict in favor of Orkin with respect to the claim for punitive damages, and later, when the jury was unable to reach a verdict, it also directed a verdict in Orkin’s favor on the issue of its liability for actual damages. This appeal followed.

The gravamen of the complaint was that in 1977 and 1978 Orkin had misapplied the termiticide chlorohepton, consisting of the chemicals chlordane and heptachlor, to the Boyds’ home, thereby exposing the family to contact with these toxic chemicals and causing them to suffer neurological injuries. There was evidence that it had been standard industry practice prior to 1975 to spray these chemicals into the crawl space between the subflooring and foundation of a building as a treatment against termites but that the United States Environmental Protection Agency (EPA) had acted that year to prohibit the manufacture of these chemicals for application anywhere except to the subsurface of the ground, based upon a finding that direct exposure to them presented a “serious human cancer risk.”

Mr. Boyd testified that within weeks after purchasing the home in 1977, he entered into separate contracts with Orkin for the prevention of subterranean termites, the prevention of wood decay fungus, and routine pest control. He further testified that, soon after signing the contracts, an Orkin representative came to the home, applied “some kind of chemicals” into the holes which he drilled in the foundation, and also sprayed some chemical underneath the wood sub-flooring of the house. Monthly pest control treatments were commenced at about the same time.

During 1978, Mr. Boyd was advised by Orkin that a second termite treatment would be required, and an Orkin agent subsequently came to the home and conducted the same type of drilling (but not spraying) procedures as had been conducted during the initial visit. Mr. Boyd stated that during this visit the Orkin representative also sealed the interior vents of the heating system with rags and attached a blower unit to the air ducts.

Throughout 1977 and 1978, Orkin continued to perform the monthly pest control treatments inside the home. Mr. and Mrs. Boyd testified that after each such treatment, a very bad odor would be present in the house and that the odor persisted and worsened with subsequent treatments, even though Orkin switched to different methods of applying the pest control chemical in response to their complaints. There was testimony that the children were complaining of headaches and nausea during this period and that these complaints would increase when the heating system was activated. The Boyds finally asked Orkin to discontinue the monthly pest control treatments, but the odor nevertheless persisted.

In 1982, after reading a newspaper account concerning a similar situation, Mr. Boyd sought assistance from the Georgia Department of Agriculture (GDA), which sent a representative to the home to conduct an inspection. However, this inspection revealed no evidence of a misapplication of termiticide, nor any violation of the Georgia standards pertaining to termite extermination as they had existed in 1977. Later that year, Mr. Boyd again contacted the GDA and was referred to a private chemical consulting firm, which tested air samples from the residence for the presence of chlordane or heptachlor but found no sign of either chemical.

In response to additional complaints by Mr. Boyd, the GDA sent another representative to the home in June of 1985. Air samples taken from the residence at that time tested positive for the chemical chlordane; but because chlordane was still widely available at that time for the control of household pests, and because no heptachlor was found, the GDA concluded that the presence of the chlordane was not necessarily attributable to the Orkin treatments and consequently determined that no regulatory action against Orkin was warranted. However, air and wipe samples which were taken from inside the heating registers later that year tested positive for both chlordane and heptachlor. Also, wood and soil samples taken from the property in June and November of 1986 tested positive for the presence of these chemicals. Concerned over these test results and continuing to experience discomfort from the odor of pesticide in the home, the Boyds ultimately abandoned the residence in 1986.

There was evidence that medical tests conducted on the children in 1986 and 1987 had revealed the presence of significantly elevated levels of heptachlor expoxide, a metabolite of heptachlor in their bloodstreams. Specifically, it was shown that the children’s blood contained concentrations of this metabolite ranging from 1.1 to .3 parts per billion, whereas the population mean value in 1986, as reported by the EPA, was only .042. There was medical opinion testimony that these tests’ results demonstrated that the children had “suffered an injury” and would require periodic monitoring over the ensuing years to determine whether they were developing any health problems associated with exposure to toxic pesticides. Held:

1. The appellants contend that the trial court erred in granting Or kin’s motions for directed verdict. We disagree. Even assuming arguendo that there was sufficient evidence before the jury to support a finding that Orkin had been negligent in its application of pesticides to the Boyds’ home, there was no evidence that the appellants had sustained any specific injury as a result of Orkin’s conduct. The physicians who had routinely treated the children from 1982 until 1986 characterized their medical histories as unremarkable and described their health as “normal” or “average.” The results of organ function tests conducted on the children were all within normal range. Although there was evidence that the children had suffered occasionally over the years from such symptoms as sore throat, runny nose, nausea, and rash, there was no showing that these symptoms, which were also consistent with common viral infections, had been caused by exposure to chlordane or heptachlor.

We reject the appellants’ contention that the jury could have assessed damages against Orkin based on expert testimony that the presence of elevated levels of the heptachlor metabolite in the children’s blood itself constituted “injury.” Absent any indication that the presence of these metabolites had caused or would eventually cause actual disease, pain, or impairment of some kind, this testimony must be considered insufficient to support an award of actual damages in any amount. Inasmuch as punitive damages may not be recovered where there is no entitlement to compensatory damages, Barnes v. White County Bank, 170 Ga. App. 681 (318 SE2d 74) (1984), it follows that the trial court did not err in granting the motions for directed verdict.

2. Similarly, the trial court did not err in granting partial summary judgment to Orkin on the issue of the appellants’ right to recover for the alleged “increased risk of cancer” to which the children had been exposed as a result of the termite treatments. In those jurisdictions which have allowed recovery for an enhanced future risk of developing a new complication, the claimant has been required to establish to a “reasonable medical certainty” that such consequences will occur. See Annot., Admissibility of Expert Medical Testimony as to Future Consequences of Injury as Affected by Expression in Terms of Probability or Possibility, 75 ALR3d 9 (1977), and cases cited therein. The evidence in the present case falls far short of that standard. The appellants merely produced medical testimony that the children would require monitoring in the future to determine whether ;hey developed health problems due to their exposure to the chemicals.

3. The trial court did not err in ruling on motion for summary judgment that the damage claims asserted by Mr. and Mrs. Boyd were barred by the applicable statutes of limitation.

OCGA § 9-3-33 specifies that a personal injury claim must be brought within two years after the accrual of a right of action, while actions for damage to realty and personal property are governed by the four-year limitation period set forth in OCGA §§ 9-3-30 and 9-3-31, respectively. The complaint, filed in 1985, alleged that Orkin had misapplied termiticide in the Boyd home in 1977 and 1978. Mr. and Mrs. Boyd contend, however, that the alleged tort was continuing and that, under the “discovery rule” set forth in King v. Seitzingers, Inc., 160 Ga. App. 318, 320 (287 SE2d 252) (1981), their “cause of action did not accrue and the statute of limitation did not run against [them] until [they] knew or through the exercise of reasonable diligence should have discovered not only the nature of [their] injury but also the causal connection between the injury and the alleged negligent conduct of appellee.” See also Everhart v. Rich’s, Inc., 229 Ga. 798 (2) (194 SE2d 425) (1972).

The “discovery rule” is no longer applicable to causes of action for property damage but is now confined “ ‘to cases of bodily injury which develop only over an extended period of time’ [Cit.]” Corp. of Mercer Univ. v. Nat. Gypsum Co., 258 Ga. 365, 366 (368 SE2d 732) (1988). Thus, the trial court was correct in ruling that any claim for property damage was barred because it had not been brought within four years following Orkin’s final termite treatment, which was performed in 1978.

While the personal injury claims asserted by Mr. and Mrs. Boyd were subject to the “discovery rule,” we conclude that these claims were barred as a result of the couple’s failure to exercise reasonable diligence in pursuing them. The Boyds alleged in their complaint that “shortly after” Orkin treated their home for termites in 1977 and 1978, they “began to suffer acute neurological symptoms” and that they ultimately asked Orkin to cease applying the pesticides in 1978. Mr. Boyd further expressed his dissatisfaction to Orkin by letter in 1978, stating that members of his family were becoming ill as a result of the pest control treatments. It is thus evident that by 1978 the Boyds believed they were suffering adverse physical reactions as a result of the Orkin treatments. However, it was not until the winter of 1981-1982 that Mr. Boyd undertook to investigate the situation further by seeking assistance from the GDA and EPA. Accordingly, the trial court was authorized to conclude that Mr. and Mrs. Boyd’s personal injury claims were also barred.

Decided March 6, 1989

Rehearing denied March 27, 1989

Mayer, Nations & Perkerson, Randolph A. Mayer, William W. Calhoun, for appellants.

Decker & Hallman, Richard P. Decker, Jay Barber, for appellee.

Judgment affirmed.

Birdsong and Beasley, JJ., concur.


text:
    77388, 77389.
    CHATTAHOOCHEE VALLEY HOME HEALTH CARE, INC. v. HEALTHMASTER, INC. et al.; and vice versa.
    (381 SE2d 56)
   Banke, Presiding Judge.

Healthmaster Home Health Care of Georgia, Inc., and its parent corporation, Healthmaster, Inc. (hereafter referred to together as Healthmaster) petitioned the State Health Planning Agency (SHPA) for a declaratory ruling as to whether three “home health agencies” which it (Healthmaster) had acquired were currently authorized under the State Health Planning and Development Act, OCGA § 31-6-1 et seq., to provide home health services in certain specified counties, without the necessity of obtaining a certificate of need pursuant to OCGA § 31-7-155. The SHPA determined that the acquired firms had “grandfather” rights in some, but not all, of the counties in question. Chattahoochee Valley Home Health Care, Inc. (Chattahoochee), a competitor home health care agency providing services in the same counties in which Healthmaster was granted grandfather status, applied to the Superior Court of Muscogee County for judicial review of this ruling pursuant to the Administrative Procedure Act (APA). See OCGA § 50-13-19. The superior court denied a joint motion by Healthmaster and the SHPA to dismiss the action and affirmed the SHPA’s declaratory ruling. The case is now before us pursuant to our grant of Chattahoochee’s application for a discretionary appeal. Healthmaster and the SHPA have filed cross-appeals, contending that the lower court erred in denying their motion to dismiss. Held:

1. We first address the issue of Chattahoochee’s standing to sue. In support of their joint motion to dismiss, Healthmaster and the SHPA contended that Chattahoochee was not an aggrieved person with standing to obtain judicial review of the SHPA’s decision pursuant to the Administrative Procedure Act and that Chattahoochee was, in any event, estopped from seeking such review because it had itself been doing business pursuant to the same grandfather status it sought to deny Healthmaster.

(a) Under the APA, any person “aggrieved by a fined decision in a ontested case” may obtain judicial review of that decision. “In the untext of the Administrative Practice Act, the word ‘aggrieved’ has >een interpreted to mean that the person seeking to appeal must how that he has an interest in the agency decision that has been pecially and adversely affected thereby,” Ga. Power Co. v. Campaign or a Prosperous Ga., 255 Ga. 253, 257 (336 SE2d 790) (1985).

Construing analogous federal statutory law, the United States supreme Court has long recognized that one who suffers or will suffer ¡conomic injury as the result of an administrative decision may be ¡onsidered aggrieved for purposes of obtaining judicial review of the lecision. See Assn. of Data Processing Svc. &c. v. Camp, 397 U. S. 150 (90 SC 827, 25 LE2d 184) (1970) (holding that a competitor has standing under the Federal Administrative Procedure Act, 5 USC § 702, to challenge an administrative action which adversely affects its ausiness interest). See also Sierra Club v. Morton, 405 U. S. 727 (92 SC 1361, 31 LE2d 636) (1972). Relying on the Camp decision, the Georgia Supreme Court, in Hilton Constr. Co. v. Rockdale County Bd. of Education, 245 Ga. 533 (266 SE2d 157) (1980), held that the owest bidder on a school construction project had standing to chalenge the award of the contract to a competitor based on an alleged violation of State Board of Education regulations governing the bidding of such contracts. Thus, it appears to be well-settled that a business entity may be considered “aggrieved” by an administrative decision which confers an economic benefit upon a competitor.

Relying on Diversified Health Mgmt. Svcs. v. Visiting Nurses Assn., 254 Ga. 500, 502 (330 SE2d 885) (1985), Healthmaster and the SHPA contend that even if Chattahoochee’s economic interests were adversely affected by the SHPA’s decision, Chattahoochee nevertheless lacked standing to appeal that decision because such an appeal would not further the public purposes of the State Health Planning and Development Act. We disagree. The General Assembly instituted the certificate of need system to ensure that “[h]ealth care services and facilities . . . [are] provided in a manner that avoids unnecessary duplication of services, that is cost effective, and that is compatible with the health care needs of the various areas and populations of the state.” OCGA § 31-6-1. In Diversified Health Mgmt. Svcs. v. Visiting Nurses Assn., supra, a provider of health care services sought to obtain injunctive relief against a competitor by bringing a direct action against the competitor pursuant to OCGA § 31-6-45 (d), which specifies that an “interested person shall have standing in any court of competent jurisdiction to maintain an action for injunctive relief to enforce the provisions of this chapter.” While the Georgia Supreme Court, citing Executive Comm. of Baptist &c. of Ga. v. Metro Ambulance Svcs., 250 Ga. 61 (296 SE2d 547) (1982), held that this Code section did not confer standing for such an action, it went on to hold that the provider would have been authorized to bring a mandamus action against the SHPA to compel it to seek redress for an alleged violation of the Act by a competitor. We believe it logically follows from this ruling that a provider of health care services would also have standing to intervene in administrative proceedings already pending before the SHPA involving the operations of a competitor and that having done so, it would also have standing to seek judicial review of a final ruling adverse to its interests in such a proceeding. Accord City of LaGrange v. Ga. Power Co., 185 Ga. App. 60 (363 SE2d 286) (1987) (where a municipality providing electrical service to its residents was permitted to appeal a declaratory ruling by the Georgia Public Service Commission authorizing the Georgia Power Company to provide competing services). Consequently, we hold that the superior court did not err in concluding that Chattahoochee had standing to bring the present action.

(b) We reject Healthmaster’s contention that Chattahoochee was estopped from seeking judicial review of the SHPA’s decision because it was operating in the affected areas under the authority of the same grandfather status which it sought to deny to the firms acquired by Healthmaster. Chattahoochee’s authority to service the areas in question is not at issue in this proceeding, and there is no evidence upon which a resolution of that issue could be made one way or the other. If, in fact, Chattahoochee’s operations are also in violation of the Act, the appropriate remedy is not to sanction a similar violation by Healthmaster but to redress the alleged violation by Chattahoochee in a separate proceeding brought for that purpose. See Executive Comm. of Baptist &c. of Ga. v. Metro Ambulance Svcs., supra. The superior court did not err in declining to dismiss the appeal, either on the basis that Chattahoochee lacked standing to seek review of the SHPA’s decision or on the ground that it was estopped from doing so.

2. Pursuant to OCGA § 31-7-155, a home health care agency is required to obtain a certificate of need prior to “initiating service or extending the range of its service area.” However, that requirement is qualified by the following language: “All home health agencies which were delivering services prior to July 1, 1979, and were certified for participation in either Title XVIII or Title XIX of the federal Social Security Act prior to such date shall be exempt from a certificate of need, except in those instances where expansion of services or service areas is requested by such home health agencies.” Id. (Emphasis supplied.)

Although it is undisputed that the agencies acquired by Healthmaster had not been servicing the geographic areas at issue prior to July 1, 1979, the SHPA determined that those agencies had nevertheless acquired grandfather status in these areas because these agencies would have been providing services there prior to the effective date of the Act had it not been for misdirection on the part of certain employees of the Department of Human Resources (DHR). Chattahoochee contends that this determination was not authorized by the language of the statute, which exempts from the certificate of need requirement only those home health care agencies which were actually delivering services in a given service area prior to July 1, 1979.

Decided March 3, 1989

Rehearing denied March 27, 1989

Charles L. Gregory, Glenn P. Hendrix, Hirsch, Beil & Partain, John P. Partain, for appellant.

Michael J. Bowers, Attorney General, H. Perry Michael, First Assistant Attorney General, H. Jeff Lanier, Patrick W. McKee, Assistant Attorneys General, Susan L. Baranoff, Staff Assistant Attorney General, Troutman, Sanders, Lockerman & Ashmore, IT. Randall Tye, Robert P. Williams II, for appellees.

Generally speaking, “ ‘[t]he administrative interpretation of a statute by an administrative agency which has the duty of enforcing or administering it is to be given great weight.’ ” City of LaGrange v. Ga. Power Co., supra at 63. However, “where the language of an Act is plain and unequivocal, judicial [or administrative] construction is not only unnecessary but is forbidden.” City of Jesup v. Bennett, 226 Ga. 606, 609 (176 SE2d 81) (1970). See also Taco Mac v. Atlanta Bd. of Zoning Adjustment, 255 Ga. 538, 539 (340 SE2d 922) (1986). In the case before us, the SHPA went beyond merely interpreting the language of the statute and, in effect, added an entirely new basis for an exemption. An interpretation of the statute which would permit an exemption to be granted to an agency based on a determination that, but for deference to bad advice on the part of a state official, it would have been delivering services to a particular area would create a radical departure from the general rule that one is not justified in relying upon a misrepresentation of law. See Gowen v. Ga. Intl. Life Ins. Co., 163 Ga. App. 75 (293 SE2d 729) (1982). Finding nothing in the language of the statute which would reasonably support such a departure, we hold that the superior court erred in affirming the SHPA’s decision.

3. The remaining enumerations of error are rendered moot by the foregoing.

Judgment reversed.

Birdsong and Beasley, JJ., concur.


author: Been, Presiding Judge. Sognier, Judge,

text:
    77623.
    CABLE v. THE STATE.
    (380 SE2d 715)
   Been, Presiding Judge.

John Cable was indicted and tried on charges that on February 6 1987, he and Claude Barnes entered the City Hall of the City o: Young Harris with the intent to commit a felony, that he and Barnes set fire to the building, and that he and Barnes thereafter set fire to í vacant home known as the Coleman house. Cable was also indictee and tried on the charge that on March'll, 1987, he and Barnes agaii set fire to the Coleman house. Cable was convicted on the one coum of burglary and the three counts of arson and he appeals.

At trial, the State introduced the testimony of Barnes, appellant’s accomplice. Barnes, who stated that due to a brain tumor operation he could neither read nor write and had completed only five grades at school, testified that after having drunk a gallon of corn liquor over the course of the day and consumed two or three bottles of wine plus about a case of beer the evening of February 5, 1987, he agreed in response to appellant’s repeated suggestions to set fire tc the Young Harris City Hall. Barnes stated that appellant was upset because the city was putting him out of the canning business. Barnes testified that appellant showed him a barrel of gasoline behind appellant’s home, which Barnes used to fill a yellow jug, then appellant drove him to a motel near the city hall. Barnes walked the rest of the way, broke out a window, and set fire to the building around 2:00 a.m. on the morning of February 6. He then walked back to appellant’s home. Barnes testified that appellant then suggested Barnes set fire to the Coleman house, an unoccupied residence some 40 to 50 yards from appellant’s house. Barnes testified he carried gas in a milk jug and set fire to the structure around 5:00 a.m. on February 6 while appellant stood outside by a street lamp and waited for the fire department to arrive. The Coleman home was damaged, but not completely destroyed, by the fire.

As to the third arson, Barnes testified that after he had been drinking heavily all day March 10, 1987, he and appellant had a conversation in which appellant told Barnes he had to finish what he had started the time before. Barnes stated appellant told him to get gasoline out of his truck, which Barnes did by siphoning the gas into a five gallon bucket by means of a piece of garden hose cut with tin snips he got from appellant. Barnes stated he was not able to remove the hose from the truck’s gasoline tank and left it there. Barnes then walked the 40 to 50 yards to the Coleman house on the morning of March 11, 1987, at approximately 2:00 a.m., and set fire to it. The house burned to the ground.

Mack Garrett, an inmate in the cell next to appellant’s, testified that appellant told him that he (appellant) was not worried because he had enough money to pay off his alibis and “his KKK members were going to back him up when court time came around.” Peggy Keys, a councilperson for the City of Young Harris, testified that on the night of February 5,1987, just before the city hall arson, her husband received a phone call that the KKK was coming to Young Harris and that when appellant attended the council hearing on his petition for rezoning in April 1987, the Ku Klux Klan was there with appellant. Sheriff Rudy Roach testified on direct examination that after appellant had been released on bail, he met appellant on the streets of Young Harris and that appellant “stuck his hand out and said, would you like to shake the hand of the man that brought the Klan to Young Harris, Georgia.” Held:

1. Cable attacks the sufficiency of the evidence only on the basis that, considering the accomplice’s criminal record, alcohol abuse, auditory hallucinations, and black-out episodes, the accomplice’s testimony was too incredible to support the conviction. Note the distinction between two differing types of alleged “incredible, impossible, or, inherently improbable evidence.” Thornton v. State, 161 Ga. App. 296, 299 (287 SE2d 749) (1982). Any question as to the credibility of a witness is for the jury to resolve. OCGA § 24-9-80, generally; Hendrix v. State, 186 Ga. App. 665 (368 SE2d 181) (1988). The jury apparently resolved that question adversely to Cable, and with the evidence viewed in the light most favorable to upholding the verdict, the evidence authorized a rational trier of fact to find him guilty beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. Cable contends that the admission of testimony recounting his remarks about the KKK was error, despite his failure to object to any of the testimony during the trial. During the investigation of the first fires, Cable told a GBI agent that he did not know who was responsible for the fires, but that he had received an anonymous phone call on the evening of the fires indicating that the caller was a member of the KKK and that the KKK ws going to be in Young Harris that night. The testimony recounting Cable’s bragging statements about his connection with the KKK was admissible to negate Cable’s statement about the anonymous phone call from the KKK. Moreover, Cable’s statement to his fellow inmate about the KKK backing him up at court time was admissible as indicative of a consciousness of guilt. Moon v. State, 154 Ga. App. 312 (5) (268 SE2d 366) (1980). “[I]f one plays with fire he is likely either to get burned or be caught in a cross fire.” Carver v. State, 185 Ga. App. 436, 440 (364 SE2d 877) (1987). This admissible evidence was not rendered inadmissible simply because it may have incidentally placed Cable’s character into evidence. Stitt v. State, 256 Ga. 155 (1) (345 SE2d 578) (1986).

Cable also attacks the admission of a certified copy of á complaint filed by the City of Young Harris against Cable, his wife, and his mother, to enjoin them from carrying on a junk business. This evidence was admissible to demonstrate a motive for arson, and also to corroborate the testimony of Barnes that Cable wanted the city hall burned because the city had put him out of business. Evidence showing motive is admissible even though it may also place the defendant’s character in issue. Causey v. State, 154 Ga. App. 76 (3) (267 SE2d 475) (1980).

Decided March 6, 1989

Rehearing denied March 27, 1989.

Holley & Holley, William P. Holley III, for appellant.

Michael D. Crawford, District Attorney, for appellee.

3. Cable’s remaining enumerations of error are also without merit.

Judgment affirmed.

Carley, C. J., McMurray, P. J., Banke, P. J., Birdsong, Pope, Benham and Beasley, JJ., concur. Sognier, J., dissents.

Sognier, Judge,

dissenting.

“ ‘ “In exceptional circumstances, especially in criminal cases, appellate courts, in the public interest, may, of their own motion, notice errors to which no exception has been taken, if the errors are obvious, or if they otherwise seriously affect the fairness, integrity or public reputation of judicial proceedings.” [Cit.]’ [Cits.]” (Emphasis supplied.) Almond v. State, 180 Ga. App. 475, 480 (349 SE2d 482) (1986) . See also Taylor v. State, 186 Ga. App. 113, 114-115 (366 SE2d 422) (1988); Kearney v. State, 184 Ga. App. 64, 66 (360 SE2d 633) (1987) . The law of this state provides that a defendant in a felony case may not be convicted on the uncorroborated testimony of an accomplice. OCGA § 24-4-8; Thurston v. State, 186 Ga. App. 881-882 (1)(368 SE2d 822) (1988). Since there is no evidence insofar as the participation and identity of the accused is concerned, to connect the accused with the crime independent of the accomplice’s testimony, West v. State, 232 Ga. 861, 865 (2)(209 SE2d 195) (1974), I dissent.


author: Beasley, Judge.

text:
    77779.
    CITY OF MACON v. PASCO BUILDING SYSTEMS et al.
    (380 SE2d 718)
   Beasley, Judge.

The City of Macon sued Pasco and Delta Associates in tort (negligence) for damages resulting from the collapse in a windstorm of an airport hangar and attached office building. The structures were designed, manufactured and fabricated by Pasco under specifications provided by Delta. A negligence action was already pending in federal district court by Zantop International Airlines, a sublessee, and its insurer for damage to two airplanes in the hangar at the time of the collapse. Named, as defendants were Pasco, Delta, the Macon-Bibb County Industrial Authority, and others. The Authority denied all allegations of negligence and, pursuant to an extension of time for further pleadings, in that federal suit, cross-claimed against Pasco for indemnity.

Before trial of the instant case, a jury verdict and judgment in favor of all defendants was entered on the federal suit. Based on it, the state court granted summary judgment to Pasco and Delta. It concluded that Macon and the Authority were privies and that the issue of Pasco’s and Delta’s alleged negligent construction of the hangar was fully adjudicated in the federal court, barring Macon from relitigating that issue.

Macon’s appeal asserts that since the Authority served only as a “financing conduit” for it, the two entities did not have such privity as to bar Macon’s claims in this action. Under the facts presented, the trial court correctly determined that Macon and the Authority were privies so as to invoke the res judicata proscription of OCGA § 9-12-40.

The record established that the Authority was created by legislative act (Ga. L. 1962, p. 2323 et seq.) as a “public body corporate and politic [and] instrumentality” of the City of Macon and Bibb County. It was the conduit for the city for the purpose of developing the facility. Pursuant to a lease agreement of November 1, 1979, Macon, as owner of the property on which the hangar was built, leased the property to the Authority for 15 years. The parties agreed that all buildings and improvements were to remain the sole property of the Authority and would not constitute part of the leased land.

The Authority had contracted with Pasco and Delta for the construction of the hangar and office/shopping complex on September 6, 1979. Under the lease Macon was pledged the rentals received from leasing these buildings for the payment of principal and interest on bonds it issued to pay for construction. The lease of the hangar was between the Authority and the tenant airline, with no property rights assigned to Macon. After the collapse of the buildings, the Authority contracted for their demolition.

Both Macon and the Authority are named insureds under Macon’s policy for hazard insurance. A loan receipt executed by Macon and the Authority with the insurer on July 14, 1983, pledges the loan amount to be repaid from any recovery which Macon and/or the Authority might obtain from third parties. Macon and the Authority jointly submitted a sworn proof of loss claim to the insurer and joint payments for loss of the buildings and debris removal were issued.

“OCGA § 9-12-40 provides that ‘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 or which under the rules of law might have been put in issue in the cause wherein the judgment was rendered until the judgment is reversed or set aside.’ OCGA § 9-12-42 provides that ‘For a former judgment to be a bar to a subsequent action, the merits of the case must have been adjudicated.’ These code sections together set out the basic principles of res judicata in Georgia. For res judicata to act as a bar of a subsequent action, the original and subsequent action must bear certain identical characteristics. The two actions must be between identical parties or their privies, and the cause of action in each suit must be identical. Collateral estoppel, like res judicata, requires identity of parties or privity. However, unlike res judicata, collateral estoppel does not require identity of the claim but only precludes readjudication of an issue already adjudicated between the parties or their privies in a prior action. [Cit.]” Norris v. Atlanta &c. R. Co., 254 Ga. 684-685 (333 SE2d 835) (1985). “Further, the doctrine of res judicata will bar an action ‘even if some new factual allegations have been made . . . .’ [Cits.]” Williams v. Summit Psychiatric Centers, 185 Ga. App. 264, 267-268 (6) (363 SE2d 794) (1987).

The Authority was an instrumentality of Macon, or an “agent” created by legislative enactment. See Knowles v. Housing Auth. of Columbus, 212 Ga. 729 (95 SE2d 659) (1956); Richmond County Hosp. Auth. v. McLain, 112 Ga. App. 209 (144 SE2d 565) (1965). The Authority was the actual owner of the buildings and lessee of the property on which they stood, to the extent that Macon had any property interest in these buildings, for the destruction of which it sought recovery, such interest was derived from the interest of the Authority. Thus that which is res judicata as to the Authority is res judicata as to Macon. Williams, supra.

Although the Authority filed a cross-claim for indemnity in the federal action, it did not add any claims it had against Pasco and Delta even though it was granted an extension of time to do so. Any grounds for recovery which Macon had were assertible in federal court. “The factual allegations supporting this claim are identical to those alleged [in the federal action] and had the claims been properly presented, the federal court could have adjudicated the [claims raised hére] by exercising pendent jurisdiction.” Hill v. Wooten, 247 Ga. 737, 738 (279 SE2d 227) (1981). Accord Monroe v. Lubonicic, 174 Ga. App. 191 (1) (329 SE2d 583) (1985).

Although Pasco and Delta were the Authority’s co-defendants in the federal case, the same issues of negligence were involved and the Authority as agent for the city could have raised any claims for damages to Macon’s ownership interests. See Charlton Dev. Auth. v. Charlton County, 253 Ga. 208 (317 SE2d 204) (1984). “Thus, even if it can be said that the [present case] asserts a different claim than the claims asserted ... in the federal court, [Macon] would also be barred by the final judgment in the federal case as the issues in the various claims are identical.” Chilivis v. Dasher, 236 Ga. 669, 671 (225 SE2d 32) (1976). See also Barnes v. City of Atlanta, 186 Ga. App. 187 (1) (366 SE2d 822) (1988); Smith v. Carlton Farms, 181 Ga. App. 743 (1) (353 SE2d 624) (1987).

Decided March 8, 1989

Rehearing denied March 27, 1989

Long, Weinberg, Ansley & Wheeler, Dan B. Wingate, for appellant.

Hart & Sullivan, Elaine W. Whitehurst, George W. Hart, R. Jerry Kirkpatrick, John W. Greenfield, for appellees.

The motions for summary judgment were properly granted.

Judgment affirmed.

Banke, P. J., and Birdsong, J., concur.


author: McMurray, Presiding Judge.

text:
    A89A0182.
    HORTON v. MIDDLE GEORGIA BANK et al.
    (380 SE2d 749)
   McMurray, Presiding Judge.

Plaintiff borrowed $20,000 from the Middle Georgia Bank in order to purchase a “lounge.” The transaction was evidenced by a promissory note which plaintiff executed on October 1, 1980. The note bore interest at the annual percentage rate of 14.51. It provided that in the event of prepayment, a refund of the finance charge would be calculated by applying the Rule of 78’s method. It also provided that in the event of default, the balance due would be calculated by applying a pro-rata method to the finance charge.

In the fall of 1985, plaintiff fell into arrears and the bank declared the promissory note in default. Plaintiff was advised that the balance due pursuant to the note was $17,353.68. That amount was paid to the bank on January 29, 1986.

Thereafter, plaintiff made further inquiries about the payoff figure. Specifically, he asked about the method used to calculate the balance due. He was informed that the calculation was made pursuant to the Rule of 78’s.

Plaintiff obtained counsel and the bank was soon notified that the balance due should have been calculated by applying the pro-rata method to the finance charge. The bank studied the matter and agreed. It sent a check to plaintiff and his attorney in the amount of $5,393.83. It explained that, using the pro-rata method instead of the Rule of 78’s, plaintiff was entitled to an additional refund of $5,016.90. To that amount, the bank added interest at the rate of 14.51 percent (the amount of interest specified in the promissory note).

Plaintiff accepted the $5,393.83 check. Nevertheless, he brought suit against the bank seeking damages for usury and fraud.

The bank answered the complaint and denied it was liable to plaintiff. Following discovery, the bank moved for summary judgment. The trial court granted the bank’s motion for summary judgment and plaintiff appealed. Held:

1. Plaintiff’s usury allegations cannot be sustained. The loan was made to plaintiff when Code Ann. § 57-118 (OCGA § 7-4-6) was in effect. That section provided that with respect to a nonconsumer loan in excess of $3,000, there would be no interest rate limit. Ga. L. 1979, pp. 355, 356. Thus, it cannot be said that the bank charged a usurious rate of interest when it declared the promissory note in default and accelerated the balance due by applying the Rule of 78’s method. The bank may have breached the terms of the promissory note. It did not engage, however, in usury. See generally Fidelcor Mtg. Co. of Ga. v. Tyroff, 250 Ga. 900 (302 SE2d 96). The trial court did not err in granting the bank’s motion for summary judgment upon the usury issue.

2. In support of its motion for summary judgment, the bank submitted the affidavit of W. T. Harvey, an officer of the bank. He averred that he was responsible for collecting plaintiff’s indebtedness to the bank; that the computation of the balance pursuant to the Rule of 78’s as opposed to the pro-rata method was an error; and that the error was not made with the intent to deceive or defraud plaintiff. He averred further that he thought the payoff figure given to plaintiff was correct; and that as soon as he learned the payoff figure was incorrect, he took steps to rectify the bank’s mistake.

The affidavit of W. T. Harvey effectively pierced the allegations of fraud set forth in plaintiff’s complaint. Thus, it was incumbent upon plaintiff to come forward with evidence showing a genuine issue of material fact for trial. OCGA § 9-11-56 (e). Plaintiff has come forward with no such evidence. The mere fact that the bank used the wrong method to calculate the payoff figure does not, in and of itself, demonstrate fraud.

“Although the question of fraud is ordinarily within the province of the jury, in plain and undisputed cases it is proper that the determination be made by the court. Blanchard v. West, 115 Ga. App. 814 (156 SE2d 164) (1967).” International Indem. Co. v. Terrell, 178 Ga. App. 570, 571 (3), 574 (344 SE2d 239). The trial court did not err in granting the bank’s motion for summary judgment upon the issue of fraud. Howard v. American Business Equip. of Columbus, 184 Ga. App. 550, 551 (2) (362 SE2d 127).

Decided March 15, 1989

Rehearing denied March 27, 1989.

Mel Horton, pro se.

James & Carey, James D. Carey, for appellees.

Judgment affirmed.

Carley, C. J., and Beasley, J., concur.