text:
    A98A0250.
    CENTRAL OF GEORGIA RAILROAD COMPANY v. MOCK.
    (499 SE2d 673)
   Johnson, Judge.

Ronald Mock was employed by Central of Georgia Railroad Company (“Central”) as a railroad conductor. He sued Central pursuant to the Federal Employers’ Liability Act (“FELA”) for injuries received while employed by Central. A jury returned a verdict in favor of Mock, and Central appeals. For reasons which follow, we affirm.

The record shows that on September 27, 1991, Mock attempted to remove the end-of-train (“EOT”) device while the train was stopped in a joint yard of CSX Transportation and Central. An EOT consists of a body, an 18- to 24-inch stem, an air hose, and an air hose coupling device called a “gladhand.” It weighs approximately 35 pounds. According to Mock, the EOT was “stuck” in the car, but he jarred it loose. Mock removed the EOT, raised it to a certain height above his head, then let the EOT go with his right hand, balancing one end with his left hand, while grabbing the air hose with his right hand. Two other conductors verified that an individual must balance the EOT with one hand while reaching for the air hose with the other hand. Footing is important because the conductor must pivot and turn to the side in performing this task.

Mock testified that the ground was muddy in the track area where he had to work. It had rained nearly three inches at the site two days before Mock was injured, and the track area was “like a mud pond.” It usually stayed muddy and “very slick” for three or four days after a rain and had been that way since Mock began work for Central in 1977. Weeds and vegetation in an adjacent ditch next to the railroad tracks partially plugged the culvert. The two railroads that jointly used the yard argued about which should maintain it and how much should be spent on maintenance, so “very little got done.” Requests by train employees for drainage rocks went unheeded.

As Mock attempted the balancing maneuver, he lost his footing. He held onto the EOT in an effort to keep from damaging the device, and in so doing, he injured his left shoulder. The railroad brakeman helped Mock put his shoulder back into its socket, and Mock finished the trip. Mock reported his injury to the radio dispatcher and, when he arrived at his destination, informed his supervisor that he had hurt his shoulder. He also spoke to a claims agent the day he left the hospital, while on medication, and informed the agent he was having problems remembering what happened. Mock first mentioned the mud and his loss of footing during a pre-trial deposition.

1. In its first enumeration of error, Central asserts the trial court erred in refusing to grant its motion for directed verdict on Mock’s claim for recovery under the drainage regulation. The regulation at issue provides: “Each drainage or other water carrying facility under or immediately adjacent to the roadbed must be maintained and kept free of obstruction, to accommodate expected water flow for the area concerned.” 49 CFR § 213.33. Central contends Mock failed to prove the ditch would not accommodate expected water flow, that the ditch was immediately adjacent to the roadbed, or that the ditch was the cause of the mud on which he slipped. Without citing any relevant authority to support its argument, Central maintains that expert testimony is required to establish when a drainage and/or other water-carrying facility is sufficiently “maintained and kept free of obstruction, to accommodate expected water flow for the area concerned.” We disagree.

“In a FELA case, a directed verdict is possible only when there is a complete absence of probative facts supporting the nonmovant’s position.” (Citation and punctuation omitted; emphasis in original.) Bagley v. CSX Transp., 219 Ga. App. 544, 546 (1) (465 SE2d 706) (1995). Thus, the question before us is whether there was a complete absence of probative facts supporting Mock’s claim against Central under the drainage regulation.

Mock testified that the culvert was partially obstructed at the time of his injury in the same fashion as shown in his exhibits. The railroad individual who was responsible for maintaining the area under the bridge admitted that weeds covered up the ditch immediately adjacent to the track “[a] little bit.” According to witnesses, the ditch was “just off the outside” of the track, had always been muddy and slick when it rained, and never drained properly. In addition, Mock presented testimony that there was no ballast between the rails and that Central refused to provide gravel which was requested by the employees in an attempt to rectify the drainage problem. This testimony provides probative facts supporting Mock’s position, and the trial court did not err in refusing to grant Central’s motion for directed verdict on this ground. This is not a design defect case, and the fact that Central provided testimony from an expert witness and Mock did not merely goes to the weight of the evidence and is a consideration for the jury, not the appellate court.

2. Central maintains the trial court erred in giving Mock’s requested charge concerning the applicability of the federal Safety Appliance Act (“SAA”). 49 USCS § 20301 et seq. If a violation of the SAA results in injury to a railroad employee, the negligence of the employee is not relevant and does not reduce his recovery unless his negligence can be said to be the sole cause of his injury. See 45 USCS § 53. According to Central, the SAA was not applicable in this case because there were no allegations that any of the appliances covered by the SAA caused Mock’s injury. According to Mock, the drainage regulation (49 CFR § 213.33) is a Federal Safety Appliance standard. While Central admits that the violation of certain railroad safety regulations has been given the same effect as a violation of the SAA, namely the annulling of the employee’s negligence unless it is the sole cause of the injury, Central argues that a violation of the drainage regulation does not have that result because this regulation was not enacted for the safety of railroad employees and therefore is not comparable. We disagree.

Under 45 USCS § 431, the Secretary of Transportation has the authority to issue appropriate regulations relating to “all areas of railroad safety[,] supplementing provisions of law and regulations in effect on [October 16, 1970].” The drainage regulation was promulgated by the Secretary of Transportation pursuant to this authority and is part of a group of regulations referred to as “Track Safety Standards.” See 49 CFR § 213. It is well established that in certain circumstances, regulations enacted by the Secretary of Transportation have the same force and effect as the SAA, i.e., nullifying an employee’s contributory negligence. 45 USCS § 437 (c). See Kernan v. American Dredging Co., 355 U. S. 426 (78 SC 394, 2 LE2d 382) (1958); Eckert v. Aliquippa & Southern R. Co., 828 F2d 183 (3rd Cir. 1987). In fact, at least one court has held that “a trial court commits reversible error by failing to submit an SAA claim to the jury when a provision of the Act has been violated through a violation of a regulation promulgated thereunder. [Cit.]” Id. at 185.

Congressional intent to afford injured railroad employees a remedy against their railroad employers is strong. Thus, we agree that a violation of a regulation promulgated under the SAA constitutes a violation of the SAA. See Eckert, supra; Beissel v. Pittsburgh & Lake Erie R. Co., 801 F2d 143 (3rd Cir. 1986), cert, denied, 479 U. S. 1088 (107 SC 1296, 94 LE2d 152) (1987). See also Orchelle v. CSX Transp., 574 S2d 749, 753 (2) (Ala. 1990) (evidence of a violation of 49 CFR § 232.17 (b) (1), regarding the maintenance of brake equipment on cars, was sufficient to warrant a jury charge on the SAA). “[T]he violation of the regulations constitute^] a violation of the statutory duty as defined by the Secretary of Transportation pursuant to his rulemaking authority under the SAA. [Cit.]” Eckert, supra at n. 4. Since the Track Safety Standards are designed at least in part to protect employees, they are covered by the SAA. Contrary to Central’s argument, the SAA does not merely cover appliances.

Moreover, although there are apparently no cases on point, it is evident from the standpoint of both legislative intent and prior judicial interpretation that the drainage regulation was enacted to both promote track stability and provide a safe working environment for railroad employees. See, e.g., Black v. Baltimore & Ohio R. Co., 398 NE2d 1361 (Ind. App. 1980) (complaint seeking Public Service Commission to order railroad to institute program to correct hazard created by muddy condition in which trainmen were required to work was preempted by virtue of provisions of the Federal Railroad Safety Act and corresponding federal regulations). Accordingly, the trial court did not err in charging the jury on the SAA.

3. Central next asserts the trial court erred in refusing to give its requested charges concerning Mock’s duty to exercise ordinary care, when Central asserted a contributory negligence defense. “[S]imply because a request to charge is apt, correct and pertinent, it is not necessarily error to fail to charge it. The test is whether the court substantially covered the principles embodied therein or whether it was sufficiently or substantially covered by the general charge.” (Citation and punctuation omitted.) Monroe v. Southern R. Co., 210 Ga. App. 597, 598 (2) (436 SE2d 568) (1993). In its charge, the trial court discussed negligence, foreseeability, causation, contributory negligence, the effect of contributory negligence on the recovery, the fact that Mock had to prove negligence before Central was required to prove contributory negligence, and the fact that there must be a causal relationship between Mock’s negligence and his injury. The trial court’s charge sufficiently and substantially covered the principles of contributory negligence. Thus, the trial court did not err in refusing to give Central’s requested charges based on the defense of contributory negligence.

4. Central contends the trial court erred in refusing to give the following charge: ‘You are instructed that if the plaintiff had a choice of ways of doing a particular job in the course of his employment, one way involving danger and risk of injury to himself and another way that is safe or less dangerous, and he voluntarily chooses the unsafe or more dangerous way, then the employee may be deemed negligent, if the risk of injury was obvious and such as a man of ordinary prudence would have avoided.” We find no error in the trial court’s refusal to give this charge.

Mock testified that the EOT was “stuck” in the car, but he jarred it loose. He then removed the EOT, raised it to a certain height above his head, and let the EOT go with his right hand, balancing one end with his left hand, while grabbing the air hose with his right hand. Two other conductors verified that an individual must balance the EOT with one hand while reaching for the air hose with the other hand. According to one conductor, “you’ve got to grab that hose because it’ll be dangling like that, and once it hits you on the knee, you’ll — you’ll grab it from then on, because it hurts.” While Central presented evidence of an alternative way to remove the EOT, there was no evidence that Mock knew of the alternative method.

5. The trial court did not err in refusing to give Central’s requested charge that “damages in an FELA case should not be a windfall to a plaintiff or punishment to a railroad.” While Central correctly notes that punitive damages are not authorized in an FELA action, such a charge was not mandated in the present case. There was no evidence presented that Mock or his attorneys desired to punish Central or to obtain a windfall. Mock merely presented evidence of his lost wages, impairment of his future earning capacity, his permanent physical impairment, and his pain and suffering.

6. The trial court did not err in refusing to give Central’s requested charge that speculative damages and damages based on “future possibilities” were not recoverable. The jury charge given by the trial court substantially and sufficiently covered this principle. During the portion of the charge relating to damages, the court repeatedly informed the jury that it could award damages only for past and future lost wages and benefits and for past and future pain and suffering which Mock was “reasonably certain” to suffer in the future, to lose, to have earned, and so forth. We find no error.

7. Central contends the trial court erred in failing to charge the jury that “[t]he same causation standard — whether the act contributed in any way to the injury — applies both to defendant’s negligence and plaintiff’s contributory negligence.” Once again, this charge was substantially and sufficiently covered in the jury charge given by the trial court. As discussed in Division 3, the trial court exhaustively covered the principles of negligence, burdens of proof, causation, and contributory negligence. The trial court charged the jury that “[njegligence simply means the absence of or failure to exercise the degree of care required by law to be exercised.” The trial court further charged the jury that “if the plaintiff himself was legally partially responsible for the incident which caused his injury, then you would diminish the amount of damages that you otherwise would have awarded in proportion to the amount of negligence that you attribute to the plaintiff, if you find him negligent, whatever you may find that to be from the evidence itself.”

Hickox v. Seaboard System R., 183 Ga. App. 330 (358 SE2d 889) (1987), does not stand for the proposition that the requested jury charge must be given. Rather, Hickox merely holds that the FELA cases which allow plaintiffs to reach the jury on a slim showing of negligence also permit defendants to reach the jury on the issue of the plaintiff’s negligence with an equally slim showing. In the present case, the issue of Mock’s contributory negligence was permitted to go to the jury, and the trial court charged the jury on this issue. This enumeration lacks merit.

8. Central argues the trial court erred in refusing to give Central’s request to charge and in giving Mock’s request to charge regarding the effect of income taxes on any award to Mock. The jury was instructed regarding reducing any damage award for future lost earnings to their present value and charged that “any amounts that you allow for damages shall not be subject, incidentally, to income tax; therefore, you should neither add nor subtract for income tax when arriving at your verdict.” Central objects to the second portion of this charge, contending it was incorrect and prejudicial. According to Central, Norfolk & Western R. Co. v. Liepelt, 444 U. S. 490 (100 SC 755, 62 LE2d 689) (1980), requires that income taxes be subtracted in arriving at the award, whereas the trial court’s charge prohibits subtraction. We disagree with Central’s interpretation of Liepelt.

Liepelt does not require that income taxes be subtracted in arriving at an award. Liepelt acknowledges that a plaintiff’s after-tax income, rather than his gross income before taxes, provides the only realistic measure of his ability to support his family. Id. at 493. Without a charge informing the jury that its award will not be subject to income taxes, it is entirely possible that a jury would inflate the award and overcompensate the plaintiff on the basis of the erroneous assumption that the judgment will be taxable. Thus, Liepelt holds that it is error to refuse a requested instruction that the jury’s award of damages would not be subject to income taxation. Giving this charge negates the necessity of subtracting income taxes from any award of past or future lost wages since the jury is instructed that its award will not be taxed. Accordingly, the trial court did not err in giving Mock’s requested charge and in refusing to give Central’s requested charge.

9. The trial court did not err in refusing to grant Central’s motion for directed verdict on Mock’s FELA claim. Contrary to Central’s assertion, the evidence did not show that Mock’s own negligence was the sole cause of his injuries. As previously stated, in a FELA case, a directed verdict is possible only when there is a complete absence of probative facts supporting the nonmovant’s position. Bagley, supra. Thus, the question before us is whether there was a complete absence of probative facts supporting Mock’s FELA claim against Central.

A review of the record reveals some evidence that Central violated the drainage regulation. There is further evidence that the EOT was awkward and hard to control, that Mock had to use one hand to balance the EOT while grabbing the air hose with his free hand, and that Mock and other conductors received no training regarding the removal of EOT devices. This evidence is sufficient to enable a rational trier of fact to determine that Central failed to provide a safe working environment for Mock.

Furthermore, we do not find that Mock’s testimony should be construed against him. While Mock did not mention the presence of mud when first questioned by the claims agent, Mock explained that he was under medication at the time and that his focus was on his injury, rather than the conditions under which he was working at the time of the injury. It is further undisputed that Mock was never directly asked about the conditions surrounding the incident or mud until his pre-trial deposition, when he was asked where he was standing at the time of the incident. Thus, this case is not controlled by Shiver v. Norfolk-Southern R. Co., 225 Ga. App. 544, 545 (1) (484 SE2d 503) (1997), where the plaintiff made an extensive statement which was totally contradicted by his later testimony. The trial court correctly denied Central’s motion for directed verdict on this issue.

10. Central next asserts the trial court erred in refusing to grant a directed verdict on Mock’s claim for future lost wages. Central claims Mock failed to sustain his burden of proving future damages with reasonable certainty. We disagree.

Evidence presented showed that Mock suffered a 40 percent physical impairment of his shoulder, which translated into a 24 percent physical impairment of his whole person. Mock is permanently restricted from hanging from a moving train, pushing or pulling more than 30 pounds, and lifting more than 35 pounds. He has persistent pain and is disqualified from his conductor’s work. Because of this, he lost 16.5 years of seniority and is now subject to any possible layoffs. While Mock is currently employed as an engineer with Central and is making more money than he did as a conductor, Mock testified that this job sometimes causes his left arm to hurt and he has to complete tasks using only his right arm. He further testified that he loses $600 to $700 in wages per month because he needs to rest his shoulder from all the activity. In addition, an economist testified as to Mock’s lost future income based on his 24 percent impairment. This evidence was sufficient to permit the jury to determine, by a reasonable certainty, Mock’s future lost wages. See Seaboard Coast line R. Co. v. Delahunt, 179 Ga. App. 647, 651 (12) (347 SE2d 627) (1986).

Decided March 10, 1998

Reconsideration denied March 25, 1998

Hall, Bloch, Garland & Meyer, F. Kennedy Hall, Todd C. Brooks, for appellant.

Burge & Wettermark, F. Tucker Burge, Groover & Childs, Frank H. Childs, Jr., for appellee.

11. In its final enumeration of error, Central contends the trial court erred in denying its motion for new trial based on the excessiveness of the jury’s verdict. We disagree.

A detailed examination of the evidence bearing on damages in this case does not demand a finding that the jury’s $755,000 general damage award was “so excessive as to shock the judicial conscience and raise an irresistible inference that passion, prejudice or another improper cause invaded the trial.” (Citations and punctuation omitted.) Norfolk Southern R. Co. v. Jones, 219 Ga. App. 602, 608 (4) (466 SE2d 260) (1995). “Before the verdict will be set aside on the ground that it is excessive, where there is no direct proof of prejudice or bias, the amount thereof, when considered in connection with all the facts, must shock the moral sense, appear exorbitant, flagrantly outrageous, and extravagant. It must be monstrous indeed and such as all mankind must be ready to exclaim against at first blush. It must carry its death warrant upon its face.” (Citations and punctuation omitted.) Id. at (4) (a).

There was evidence that Mock suffered and is still suffering pain; he had three surgeries related to this incident; his job as an engineer sometimes aggravates his pain and he finds other ways to do his work when his left arm hurts too much; he misses approximately two trips a month because his left arm hurts and he needs to rest it from all the activities; and playing with his children causes him pain. Mock is permanently restricted from performing certain movements and suffers from a 24 percent permanent physical impairment of his whole person. In addition, Mock lost 16.5 years of seniority because of the injuries sustained. The jury also heard evidence from which it could have calculated Mock’s special damages alone to total nearly $323,000. Accordingly, we cannot say that the jury’s award of $755,000 is excessive and can be explained logically only as having resulted from an improper cause.

Judgment affirmed.

Birdsong, P. J., and Smith, J., concur.


source: Caselaw Access Project

author: Eldridge, Judge.

license: Public Domain

text:
    A98A0496.
    LATTIMER v. THE STATE.
    (499 SE2d 671)
   Eldridge, Judge.

The defendant, Henry Lattimer, Jr., appeals his conviction for aggravated assault against Joanne Lattimer and Henry Lattimer III. His sole enumeration of error alleges that the trial court erred in failing to grant his motion for directed verdict. Defendant contends that he was entitled to a directed verdict because the State failed to prove that he used a dangerous weapon or object that caused or was likely to have caused serious bodily injury to the victims.

“A directed verdict of acquittal is proper only where there is no conflict in the evidence and the evidence introduced with all reasonable deductions and inferences therefrom shall demand a verdict of acquittal. OCGA § 17-9-1 (a). On appeal we must view the evidence in the light most favorable to the verdict, [and the defendant] no longer enjoys the presumption of innocence.” (Citations and punctuation omitted.) Thompson v. State, 210 Ga. App. 655, 656 (1) (436 SE2d 799) (1993).

Viewed in this light, the evidence shows that on March 28, 1997, the defendant went to the home of his estranged wife, Joanne Lat-timer. When the defendant arrived, their adult son, Henry Lattimer III, was leaving after visiting with his mother. Mrs. Lattimer was standing on the front porch. The defendant grabbed Mrs. Lattimer and when she told him to let go, the defendant attempted to hit her in the face. Mrs. Lattimer fell. Henry came to her rescue, grabbed the defendant, and pulled him off Mrs. Lattimer. Mrs. Lattimer testified that she did not feel the defendant hit her. However, once she was in her house, she realized she had received a cut on the top of her head. Mrs. Lattimer’s cut required two stitches. Henry received a deep cut across his hand, which required approximately 20 stitches.

When Officer Pat Cleveland arrived at the scene, he observed that both victims were cut and bleeding. Officer Cleveland testified that both Mrs. Lattimer and Henry told him the defendant had cut them with a boxcutter. The defendant was arrested by Officer Danny Storey approximately five minutes after the incident with two boxcutters in his possession. At trial, Mrs. Lattimer testified that she did not see anything in the defendant’s hand, but that she had told Officer Cleveland that the defendant had cut her with an object that appeared to be a boxcutter, because that was what she believed had happened. Henry admitted telling Officer Cleveland that the defendant had cut him, but denied stating he was cut with a boxcutter. Henry testified that he was unsure what cut him but thought it could have been a knife. On cross-examination, Henry testified that he could have cut his hand on a Lazy Boy chair located on the porch.

On a prior occasion, in November 1996, the defendant had attacked Mrs. Lattimer and another individual, Nathaniel Carter, with a boxcutter at the same address.

Decided March 10, 1998

Reconsideration dismissed March 25, 1998.

Shaw, Maddox, Graham, Monk & Boling, Mather D. Graham, Virginia B. Harman, John F. McClellan, Jr., for appellant.

OCGA § 16-5-21 (a) (2) provides: “[a] person commits the offense of aggravated assault when he or she assaults . . . [w]ith a deadly weapon or with any object, device, or instrument which, when used offensively against a person, is likely to or actually does result in serious bodily injury.”

It is not necessary for the State to admit into evidence the deadly weapon used by the defendant in order for the defendant to be found guilty of aggravated assault. “The presence of [a deadly] weapon or the appearance of such may be established by circumstantial evidence, and a conviction for [aggravated assault] may be sustained even though the weapon was neither seen nor accurately described by the victim. Some physical manifestation is required or some evidence from which the presence of a weapon may be inferred, but OCGA § [16-5-21 (a)] does not require proof of an actual [deadly] weapon.” (Citations and punctuation omitted.) Terry v. State, 224 Ga. App. 157, 159 (1) (b) (480 SE2d 193) (1996); Talley v. State, 209 Ga. App. 79, 81 (432 SE2d 667) (1993). “It is clear that even in the absence of the production or verbal description of the weapon used, evidence as to the nature, kind and location of the wounds inflicted by the assailant is sufficient to allow the jury to infer the character of the weapon.” (Citations and punctuation omitted.) Id. at 81 (3); see Wright v. State, 211 Ga. App. 474, 475 (440 SE2d 27) (1993); Wade v. State, 157 Ga. App. 296, 297 (277 SE2d 292) (1981).

Although the defendant argues that the victims’ testimony at trial was in conflict with Officer Cleveland’s testimony regarding what was told to him by the victims at the scene of the crime, “it is the function of the jury, and not this Court, to resolve conflicts in the evidence. This Court determines only the legal sufficiency of the evidence adduced below and does not weigh the evidence or assess the credibility of the witnesses.” (Citation and punctuation omitted.) Kapua v. State, 228 Ga. App. 193, 195 (491 SE2d 387) (1997). Viewed in the light most favorable to the verdict, the evidence was sufficient to enable a rational trier of fact to find the defendant guilty of aggravated assault beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Judgment affirmed.

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

Henry Lattimer, Jr., pro se.

Tambra P. Colston, District Attorney, Bryant G. Speed II, Assistant District Attorney, for appellee.


author: Birdsong, Presiding Judge.

text:
    A98A0589.
    HADDON et al. v. SHAHEEN & COMPANY.
    (499 SE2d 693)
   Birdsong, Presiding Judge.

Appellants James P. Haddon, Packaging Atlanta Corporation and Instant Box, Inc. appeal from the final order of the state court confirming a settlement award pursuant to OCGA § 9-9-12.

This appeal arises from a suit for breach of contract and negligence. Appellants filed a motion for summary judgment which was denied. Subsequently, by request of the parties, the trial court entered an order sending the matter to binding arbitration. The arbitrator awarded appellee/plaintiff, Shaheen & Company, an award of $29,457.57 in principal and $2,970.75 attorney fees. Appellant/ defendant Packaging Atlanta Corporation moved to vacate the award pursuant to the provisions of OCGA § 9-9-13 (b) (1) and (3). The trial court entered an order confirming the arbitration award and denying the motion to vacate. Appellants enumerate three errors. Held:

1. Appellants enumerate that the trial court erred in confirming the arbitrator’s award because it was corrupt within the meaning of OCGA § 9-9-13 (b) (1) and because the arbitrator overstepped his authority within the meaning of OCGA § 9-9-13 (b) (3). OCGA § 9-9-13 (b) pertinently provides that: “The award shall be vacated on the application of a party who either participated in the arbitration or was served with a demand for arbitration if the court finds that the rights of that party were prejudiced by: (1) Corruption, fraud, or misconduct in procuring the award; [or] ... (3) An overstepping by the arbitrators of their authority or such imperfect execution of it that a final and definite award upon the subject matter submitted was not made. . . .” “The Georgia Arbitration Code ‘shall apply to all disputes in which the parties thereto have agreed in writing to arbitrate and shall provide the exclusive means by which agreements to arbitrate can be enforced.’ By its enactment, the Arbitration Code repealed common law arbitration in its entirety, and it must, therefore, be strictly construed.” Greene v. Hundley, 266 Ga. 592, 594 (1) (468 SE2d 350). An arbitration award, pursuant to the Georgia Arbitration Code, may be vacated only if one or more of the four statutory grounds set forth in OCGA § 9-9-13 (b) is found to exist. Id. at 592. “The Arbitration Code requires a trial court to confirm an award upon the timely application of a party to the award, unless one of the statutory grounds for vacating or modifying the award is established.” Id. at 595 (1). Thus, the power of a court to vacate an arbitration award has been severely limited in order not to frustrate the legislative purpose of avoiding litigation by resort to arbitration. See id.

(a) Appellants enumerated that the state court erred in confirming the award as it was entered in violation of OCGA § 9-9-13 (b) (1), specifically asserting that appellants’ rights were prejudiced by corruption in procuring the award because no provision of the lease allowed the awarding of attorney fees and that therefore the award for attorney fees was invalid. In an attempt to fit their contention within the limited scope of OCGA § 9-9-13 (b) (1), appellants list numerous dictionary definitions (see generally OCGA § 1-3-1 (c)) of the word “corrupt” in their appellate brief; we find unpersuasive appellants’ argument that mere lack of evidence of a lease provision authorizing attorney fees would support a holding that appellants’ rights were prejudiced by “corruption” in procuring the award. “Corruption” has several ordinary meanings depending on the context in which the word is used; one of these broad meanings is that of a “corrupt or dishonest proceedings.” Webster’s Encyclopedic Unabridged Dictionary. The context in which the word “corruption” is used by the legislature in promulgating OCGA § 9-9-13 (b) reveals that the word was intended to connote a “corrupt or dishonest proceedings.” This is apparent from the associated acts described in OCGA § 9-9-13 (b) (1) and from the context in which such words of description are used. See Thomas v. MacNeill, 200 Ga. 418, 424 (37 SE2d 705) (meaning of statutory clause depends upon the intention with which it is used as manifested by its context and considered with reference to the subject matter to which it relates); Odum v. Union City &c. Auth., 251 Ga. 248, 255 (305 SE2d 110), citing Mott v. Central R., 70 Ga. 680, 683 (which applied the familiar rule of construction of noscitur a sociis — meaning of a word is or may be known from accompanying words — to ascertain “the precise meaning of words from others with which they are associated and from which they cannot be separated without impairing or destroying the evident sense they were designed to convey in the connection used”). OCGA § 9-9-13 (b) (1) requires the granting of an application to vacate an arbitration award, made by a proper party applicant, if the court finds that rights of that party were prejudiced by the associated acts of “corruption, fraud, or misconduct” in the procurement of the award. When these associated acts are viewed in context it is clear that the legislature intended that the “corruption” required to vacate an award is an act of undue means or malconduct rendering the proceedings tantamount to being dishonest, that is: “An act done with an intent to give some advantage inconsistent with official duty and the rights of others”; or “[t]he act of an official . . . who unlawfully or wrongfully uses his station or character to procure some benefit for himself or for another person, contrary to duty and the rights of others.” Black’s Law Dictionary (5th ed.) (corruption defined). Appellants have failed to carry their burden of establishing the award was in violation of OCGA § 9-9-13 (b) (1). “Nothing on the face of the arbitration award appears to be the result of corruption, fraud, or misconduct.” Greene, supra at 596. We find no evidence of corruption, or of any other ground specified in OCGA § 9-9-13 (b) (1), to warrant vacating the arbitration award. Appellants’ first enumeration of error is without merit.

(b) OCGA § 9-9-13 (b) (3) pertinently provides that: “(b) The award shall be vacated ... if the court finds that the rights of that party were prejudiced by: (3) An overstepping by the arbitrators of their authority or such imperfect execution of it that a final and definite award upon the subject matter submitted was not made.” Appellants have enumerated that the state court erred in confirming the award as it was entered in violation of OCGA § 9-9-13 (b) (1). Specifically, appellants contend that “[s]ince this case involved unliquidated damages the award of interest was improper and exceeded the scope of authority of the arbitrator and is corrupt and should be vacated pursuant to Greene, supra,” and that “[tjhere being nothing in the contract to allow for this interest, the decision of the arbitrator is corrupt as to this and additionally the arbitrator overstepped his authority as set forth in the contract.” “Overstepping” like the other grounds for vacating arbitration awards is very limited in scope. See generally Yarn, Alternative Dispute Resolution (2nd ed.), § 8-53. “Overstepping” has been described as “addressing issues not properly before the arbitrator.” Amerispec Franchise v. Cross, 215 Ga. App. 669, 670 (452 SE2d 188); but cf. Martin v. RocCorp, Inc., 212 Ga. App. 177, 178 (441 SE2d 671). In Banderas v. Doman, 224 Ga. App. 198, 200 (3) (480 SE2d 252), this Court held that because an arbitrator’s award did not appear on its face to award duplicative items of damages, the arbitrators did not overstep or imperfectly execute their authority.

The authority of courts to review an award, pursuant to a motion to vacate, is very limited; courts cannot inquire into the merits of an arbitrable controversy; arbitrators are free to award on the basis of broad principles of fairness and equity; and an arbitrator need not make findings or state the reasons in support of the award. Compare Greene, supra at 595 (2) & (3); Banderas, supra at 200 (3); see generally Yarn, supra. In reviewing a motion to vacate, appellate courts cannot make determinations as to the sufficiency of the evidence, as such judicial intervention “would only frustrate the purpose of arbitration.” Greene, supra at 597 (3). “The prohibition against considering the sufficiency of the evidence as grounds for vacating an arbitration award is unconditional. Therefore, a reviewing court is prohibited from weighing the evidence submitted before the arbitrator, regardless of whether the court believes there to be sufficient evidence, or even any evidence, to support the award.” (Emphasis supplied.) Id. at 596 (3). In essence, appellants importune this Court, under the veiled claim of “overstepping,” to determine whether there exists any evidence to support the arbitrator’s award of interest; this we cannot do. Id.; compare Banderas, supra at 201 (4) (declining to examine the evidence to determine whether arbitrators correctly applied Georgia law in making an award of liquidated damages).

Sayler Marine Corp. v. Dixie Metal Co., 194 Ga. App. 853, 854 (2) (392 SE2d 45) has been overruled sub silentio, by Greene, supra, to the extent it purports to vest appellate courts with authority to weigh evidence or determine evidence sufficiency when reviewing arbitration awards. Kuhl v. Shepard, 226 Ga. App. 439 (487 SE2d 68), where the arbitration award was never confirmed, is distinguishable. Also distinguishable is Walton Acoustics v. Currahee Constr., 197 Ga. App. 659 (399 SE2d 265), rev’d on other grounds, Hope & Assoc. v. Marvin M. Black Co., 205 Ga. App. 561, 562 (1) (422 SE2d 918), where overstepping was found because the arbitrator awarded attorney fees contrary to the statutory provisions of OCGA § 9-9-17. We need not here decide whether Greene, supra, has precluded this Court from vacating arbitration awards by applying the “manifest disregard for the law” or “complete irrationality” tests to determine whether an arbitrator has exceeded his authority under OCGA § 9-9-13 (b) (3). See discussion, Yarn, supra at § 8-53, n. 11; compare Banderas, supra; Hood v. Garland, 223 Ga. App. 45 (476 SE2d 827) and Amerispec, supra with Mid-American Elevator Co. v. Gemco Elevator Co., 183 Ga. App. 88 (357 SE2d 838) (a pre-Greene case). Suffice it to note that the appellate record reveals neither a “manifest disregard for the law” or “complete irrationality” by the arbitrator warranting vacation of the award.

Additionally, although the courts are split as to whether an arbitrator may award interest (4 AmJur2d, Alternative Dispute Resolution, § 206), it has been persuasively asserted by one commentator that “[a]n arbitrator has the power to award prejudgment interest unless the parties provide otherwise in their agreement. . . . Generally, interest accrues from the time the debt becomes due and payable. Post-judgment interest runs from the date of award rendition.” Yarn, supra at § 8-50. We are satisfied that the award of prejudgment and post-judgment interest is one of the inherent powers of an arbitrator in the absence of a contrary provision in the arbitration agreement or consent to arbitrate. This holding is compatible with Greene, supra at 595, where our Supreme Court held that an arbitrator has inherent power to fashion a remedy as long as the award draws its essence from the contract or statute. The contract here at issue did not preclude the award of interest. Appellants’ first and second enumerations of error are without merit.

2. For each of the following reasons, we decline to address appellants’ third enumeration that the trial court erred in failing to grant his motion for summary judgment:

(a) Appellants’ attempt indirectly to obtain a vacation of the arbitrator’s award by asserting an error in the denial of their motion for summary judgment. The Arbitration Code sets forth four statutory grounds for vacating an arbitration award. “Relevant case law states that these four bases are the exclusive grounds for granting an arbitration award.” Greene, supra at 595 (1). Denial of a summary judgment motion is not one of these grounds. “A party cannot do indirectly what the law does not allow to be done directly.” Kingsmill Village &c. v. Homebanc &c., 204 Ga. App. 900, 902 (2) (a) (420 SE2d 771).

(b) “Rights that are cognizable in a court of law are not necessarily dispositive of an arbitrated dispute. Rather, arbitrating parties agree to waive certain such rights in favor of a quick resolution of their dispute by extralegal means. . . . [B]y electing arbitration, the parties can agree to waive certain constitutional and procedural rights to which they would be entitled in a judicial forum.” Greene, supra at 595 (2). Moreover, if parties are allowed to enumerate pretrial issues as error when subsequently contesting arbitration award confirmation, the arbitration process would be impaired substantially, and the “finality of arbitration awards” (see, e.g., Greene, supra at 597) would become a constant target for judicial circumvention. By electing not to file a timely application for interlocutory review of the trial court’s denial of its summary judgment motion and by electing to proceed with arbitration the appellants, as a matter of law, inherently waived their right to contest the trial court’s denial of their summary judgment motion.

(c) Additionally, we find that Shaheen & Company reasonably relied on appellants’ good faith commitment to engage in arbitration, and that Shaheen & Company by participating in the arbitration process also waived valuable judicial rights to their detriment in reliance on appellants’ arbitration election. Under these circumstances, appellants waived by their conduct any right to assert that the trial court erred in denying their motion for summary judgment. See generally Hyre v. Denise, 214 Ga. App. 552 (3) (449 SE2d 120); Crotty v. Crotty, 219 Ga. App. 408, 412 (3) (465 SE2d 517) and cases cited therein; Mauldin v. Weinstock, 201 Ga. App. 514, 520 (4) (411 SE2d 370).

Judgment affirmed.

Johnson and Smith, JJ, concur.

Decided March 11, 1998

Reconsideration denied March 25, 1998.

Walter W. Furlong, for appellants.

William G. McDaniel, for appellee.


author: Blackburn, Judge.

text:
    A98A0592.
    McCANNON v. McCANNON et al.
    (499 SE2d 684)
   Blackburn, Judge.

Plaintiff Walter Allen McCannon, Sr. appeals the grant of a directed verdict to his wife, Sara D. McCannon, and his son, Walter Allen McCannon, Jr. (Allen McCannon), defendants in this action, for fraud. Plaintiff alleges that defendants deceived him into transferring certain stock and real property to them. The case went to trial in 1996, ending in a mistrial when the jury deadlocked. The defendants then appealed the trial court’s denial of their motion for directed verdict, and this Court affirmed the denial in an unpublished opinion. During the second trial, the defendants again moved for a directed verdict at the close of plaintiff’s case, this time on the grounds that there was insufficient evidence of damages. The trial court granted this motion. Plaintiff appeals this ruling as well as several other rulings of the trial court.

1. Plaintiff claimed that he was defrauded into transferring his interest in his two corporations, McCannon Granite Company, Inc. and Crystal Blue Quarries, Inc., and certain real property to his son. The trial court granted a directed verdict in favor of defendants on the grounds that there was insufficient evidence as to the value of the transferred property. “A directed verdict is proper only if there is no conflict in the evidence as to any material issue and the evidence introduced, with all reasonable deductions therefrom, shall demand a particular verdict. OCGA § 9-11-50 (a). In determining whether any conflict in the evidence exists, the court must construe the evidence most favorably to the party opposing the motion for directed verdict. The standard used to review the grant or denial of a directed verdict is the any evidence test.” (Citation and punctuation omitted.) Doubletree, Inc. v. Schanley, 226 Ga. App. 776 (487 SE2d 506) (1997).

In evaluating the sufficiency of evidence regarding damages, “[t]he ability to estimate damages to a reasonable certainty is all that is required and mere difficulty in fixing the exact amount will not be an obstacle to the award.. The rule against the recovery of vague, speculative, or uncertain damages relates more especially to the uncertainty as to cause, rather than uncertainty as to the measure or extent of the damages.” (Citations and punctuation omitted.) Shep herd v. Aaron Rents, 208 Ga. App. 139, 143 (3) (430 SE2d 67) (1993).

The trial court erred in directing a verdict for defendants, as the evidence, construed in favor of plaintiff, provided the jury with a basis to estimate plaintiff’s damages. Defendant Sara McCannon admitted that she had testified at her deposition that the assets of the two corporations, excluding the land on which the Crystal Blue quarry was located (which she claimed was already owned by her son), were worth between $800,000 and $1 million. Although she claimed at trial that this deposition testimony was inaccurate, this claim at most creates a jury question and does not remove the effect of her deposition testimony. See Gibbons v. State, 248 Ga. 858, 862-863 (286 SE2d 717) (1982) (prior inconsistent statement of witness admissible as substantive evidence). Defendant Allen McCannon admitted that he had testified at his deposition that the liquidation value of the corporations was between $600,000 and $800,000. Although defendants argue that it is unclear whether he was referring to one or both corporations, that does not change the fact that this testimony constitutes some evidence upon which a jury could make a determination of plaintiff’s damages.

Furthermore, plaintiff testified that the value of the two corporations was $3 million. Although the trial court found that this was proper opinion testimony and that plaintiff stated a basis for his opinion, it held that the testimony was insufficient because it did not take into account the fact that the land on which the Crystal Blue quarry was located was owned by Allen McCannon. However, plaintiff was asked about the value of the corporations, not about the value of the land. When asked what he based his opinion on, he referred primarily to the equipment owned by the corporations and did not indicate that his opinion included a value for the land. In ruling on a motion for directed verdict, the evidence must be construed in favor of the non-movant, in this case the plaintiff. In finding that plaintiff’s testimony included the value of the land, however, the trial court improperly construed the testimony in favor of the defendants.

Defendants also claim that this testimony does not provide a basis for estimating plaintiff’s damages because it does not provide a separate value for each corporation. They contend that, at the time of the fraudulent transfers at issue, plaintiff owned only a one-third interest in McCannon Granite Company, having previously conveyed the other two-thirds to defendants. Therefore, since plaintiff owned one-third of McCannon Granite Company and all of Crystal Blue Quarries at the time of the alleged fraudulent transfers, defendants contend that a combined value for the two corporations does not provide the jury with a basis to estimate the value of the interest conveyed by plaintiff.

This contention is without merit for two reasons. First, plaintiff testified that he owned 100 percent of both corporations and did not recall ever transferring a two-thirds interest to defendants. No stock certificates or other documents were placed into evidence showing such transfer. Therefore, the jury could have concluded that plaintiff owned the entire stock in both corporations at the time of the alleged fraudulent transfers. Furthermore, even assuming that plaintiff owned only one-third of McCannon Granite Company, testimony regarding the combined value of the two corporations would still provide the jury a basis to estimate plaintiff’s damages to a reasonable degree of certainty. If the jury believed plaintiff’s testimony that the two corporations combined were worth $3 million, it could conclude that plaintiff’s one-third interest in one corporation and full interest in the other were worth at a minimum $1 million. Therefore, testimony as to the combined value of the corporations does provide the jury with a basis on which to estimate plaintiff’s damages.

There was additional evidence providing the jury a basis to estimate damages. John Lutz testified that the McCannon Granite plant, excluding the quarry, was worth between $1.5 and $2 million. Although defendants objected that Lutz did not know the amount of debt on the property, plaintiff testified that the corporations had no outstanding debts. Ed Booth, the owner of a quarry in Elbert County, testified that the value of certain equipment owned by McCannon Granite Company was greater than its book value of approximately $250,000.

As there was evidence providing the jury a basis to estimate the amount of plaintiff’s damages, the trial court erred in directing a verdict in favor of defendants.

2. Prior to trial, plaintiff moved for partial summary judgment, contending that the transfer of the stock and real estate was invalid because it was not supported by consideration. Plaintiff now appeals the trial court’s denial of this motion. In considering this ruling, we must construe the evidence in the light most favorable to defendants. Matjoulis v. Integon Gen. Ins. Corp., 226 Ga. App. 459 (1) (486 SE2d 684) (1997).

Defendants contend that the transfer was supported by valid consideration. Around the time plaintiff transferred the stock and real estate to Allen McCannon, plaintiff entered into an employment agreement with McCannon Granite Company providing, among other things, that plaintiff would be paid $500 per week until he was eligible for Social Security retirement benefits, at which time he would be paid an amount that would not result in a reduction of his Social Security benefits. In addition, the corporation agreed to provide plaintiff hospitalization and medical insurance, with such benefits continuing for the rest of plaintiff’s life if his employment were terminated for mental or physical disability. Allen McCannon executed this agreement on behalf of McCannon Granite Company. Defendants claimed that plaintiff’s transfer of the stock and real estate to Allen McCannon was in exchange for Allen McCannon’s agreement to execute the employment contract on behalf of McCannon Granite Company.

The fact that the employment agreement was executed by McCannon Granite Company, and not by Allen McCannon personally, does not change its effectiveness as consideration for plaintiff’s transfer of the stock and real estate. Since plaintiff received the benefit of the consideration, the fact that it was provided by an entity other than Allen McCannon is of no significance. See Holliday Constr. Co. v. Sandy Springs Assoc., 198 Ga. App. 20, 21 (3) (400 SE2d 380) (1990) (“‘any benefit accruing to the promisor, or any loss, trouble, or disadvantage undergone by the promisee, is a sufficient consideration’ ”).

Contrary to plaintiff’s contention, our decision in the prior appeal does not require a different result. In our opinion, we stated that Allen McCannon acquired the stock without paying any consideration. However, that decision was rendered on appeal of the denial of the defendants’ motion for directed verdict, and we were thus required to view the evidence in the light most favorable to the plaintiff. In this appeal, we are reviewing the denial of plaintiff’s motion for partial summary judgment and are required to view the evidence in the light most favorable to the defendants. Accordingly, as there was evidence of consideration, the trial court did not err in denying plaintiff’s motion for partial summary judgment.

3. Plaintiff contends that the trial court erred in denying his motion in limine to exclude any evidence that the employment contract was entered into as consideration for the transfer of stock and real estate. Plaintiff contends that, because the employment contract did not mention the stock and real estate transfer, and because the contract contained an integration clause, parol evidence was inadmissible to show that the contract constituted consideration for the transfer of the stock and real estate.

This contention is without merit. The integration clause merely states that the employment contract contains the entire agreement between plaintiff and McCannon Granite Company. This clause does not address the issue of whether the contract itself was intended as consideration for plaintiff’s separate agreement to transfer the stock and real estate to Allen McCannon. Therefore, defendants were not precluded from presenting evidence that the contract was intended as such consideration.

Decided March 10, 1998

Reconsideration denied March 25, 1998

Thomas M. Strickland, Benjamin C. Free, for appellant.

Fortson, Bentley & Griffin, J. Edward Allen, Jr., Michael M. Duelos, Richard L. Ford, Jr., Rodger E. Davison, for appellees.

4. In several enumerations, plaintiff contends the trial court erred in denying several other motions in limine. However, the record does not contain the transcript of the hearing on these motions or a copy of the judge’s rulings thereon. Accordingly, these enumerations present nothing for this Court to review. See Studard v. Dept. of Transp., 219 Ga. App. 643, 644 (1) (466 SE2d 236) (1995).

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

McMurray, P. J., and Eldridge, J., concur.

       If McCannon Granite Company was valueless and Crystal Blue Quarries was worth $3 million, plaintiff’s interest in the two corporations would be worth $3 million, since he owned all of Crystal Blue Quarries. If McCannon Granite Company was worth $3 million and Crystal Blue Quarries was valueless, on the other hand, plaintiff’s interest in the two corporations would be worth $1 million, since plaintiff owned one-third of McCannon Granite Company. If each of the corporations had some value, plaintiff’s interest would be worth somewhere between $1 million and $3 million. Therefore, since plaintiff’s interest was worth no less than $1 million, the jury did have a basis on which to estimate his damages.


text:
    A98A0738.
    DAVIDSON v. THE STATE.
    (499 SE2d 697)
   Eldridge, Judge.

The defendant, Gerald Alton Davidson, appeals his May 1997 conviction on two counts of child molestation, four counts of aggravated sodomy, two counts of aggravated child molestation, three counts of aggravated sexual battery, two counts of cruelty to children, and one count of statutory rape. We affirm.

“On appeal the evidence must be viewed in a light most favorable to the verdict, and appellant no longer enjoys a presumption of innocence; moreover, on appeal this [C]ourt determines evidence sufficiency, and does not weigh the evidence or determine witness credibility. [Cits.]” Grant v. State, 195 Ga. App. 463, 464 (393 SE2d 737) (1990); see also Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

The evidence shows that, from 1991 until 1996, the defendant was involved in a relationship with the victims’ mother. The relationship was often violent. The victims, two girls who were approximately five and seven years old in 1992, testified that the defendant repeatedly molested them separately and while they were together. Specifically, they testified that the defendant touched their genital areas with his hands and with a vibrator; forced them to perform oral sex on him; performed oral sex on them; raped them; and masturbated in their presence. Both victims testified that the defendant forced them to watch violent, pornographic movies in his bedroom. One victim testified that the defendant told her that “it’ll make [sex] better so I could . . . see how those women were doing it on TV so I would understand how to do it.” Both victims testified that, before and after the sex acts, the defendant gave them cigarettes, alcoholic beverages, and candy. He also threatened to harm them and their mother if they told anyone.

Eventually, one of the victims reported the abuse to a school counselor, who contacted the victim’s mother. However, the mother questioned the defendant, who denied the acts, and the mother concluded that the victim was lying or that any contact by the defendant was accidental. No charges were brought against the defendant. The victim testified that, because her mother did not believe her, she never told her about the continuing abuse again.

However, in September 1996, one of the victims reported the abuse and was questioned both by a caseworker from the Georgia Department of Family & Children Services (“DFCS”) and an investigator with the Banks County Sheriff’s Department. The defendant was arrested and a search warrant was executed. During the search, investigators found sexually explicit magazines and videotapes, vibrators, other sexual toys, and a “masturbation machine” which was designed and built by the defendant. They also found several pairs of children’s underwear, which were heavily stained and tested positive for seminal fluid without the presence of sperm.

The defendant was tried in May 1997 and convicted on all counts. He appeals.

1. In his first enumeration of error, the defendant asserts that the trial court erred in refusing to sever the trials. We disagree. The defendant was charged with, inter alia, molesting two sisters in the same manner and place. Although some acts occurred while the defendant was alone with one child, other acts were conducted on the children simultaneously.

“Offenses may be joined with are based on the same conduct, on a series of connected acts, or on a series of acts constituting parts of a single scheme or plan. If offenses are joined for any of these three reasons, the defendant does not have an automatic right of severance; instead, the trial judge may grant severance if it is necessary to achieve a fair determination of the defendant’s guilt or innocence of each offense. There was more than sufficient evidence showing that the crimes charged in the indictments were a series of acts connected together. Consequently, the trial court did not abuse its discretion in denying [the defendant’s] motion to sever.” (Citations and punctuation omitted.) Evans v. State, 188 Ga. App. 379, 380 (373 SE2d 70) (1988); see also Carroll v. State, 199 Ga. App. 8 (403 SE2d 875) (1991); Stinson v. State, 197 Ga. App. 687, 688 (399 SE2d 278) (1990) (finding no abuse of discretion in denial of a motion to sever where the similarity of the crimes reaches the level of a pattern).

2. In his second enumeration, the defendant claims that the trial court was required to quash the indictment, asserting that it (a) was unconstitutionally vague, and (b) failed to provide adequate notice of the exact dates of the offenses.

(a) The defendant asserts that the statute upon which the indictment was partially based, OCGA § 16-6-4, defines child molestation in a “vague and indefinite manner” and is therefore unconstitutional under both the United States and Georgia Constitutions. The defendant asserts that the statute “(1) fails to provide persons of ordinary intelligence with notice that it purports to prohibit certain conduct, and (2) lacks definite and explicit standards to guide its enforcement[.]”

However, in McCord v. State, 248 Ga. 765, 766 (285 SE2d 724) (1982), the Supreme Court of Georgia upheld the constitutionality of the statute. The Supreme Court determined that “[t]he phrase ‘any immoral or indecent act’ in conjunction with the requisite element of the offense that the act be committed ‘with the intent to arouse or satisfy the sexual desires of either the child or the person’ is sufficiently definite. “We find the statute to be definite and certain in its meaning. Men of common intelligence would not differ as to the application of its provisions.’ Anderson v. Little &c. Funeral Home, 242 Ga. 751, 753 (251 SE2d 250) (1978).” McCord, supra at 766. “Where a law has been held to be constitutional as against the same attack being made, the case requires merely an application of unquestioned and unambiguous constitutional provisions and jurisdiction of the appeal is in the Court of Appeals. [Cit.]” Zepp v. Mayor &c. of Athens, 255 Ga. 449, 451 (339 SE2d 576) (1986).

Further, in “determining the sufficiency of the notice, the challenged ‘statute must of necessity be examined in the light of the conduct with which a defendant is charged. (Cit.)’ United States v. Nat. Dairy Products Corp., 372 U. S. 29, 33 (II) (83 SC 594, 9 LE2d 561) (1963).” Hall v. State, 268 Ga. 89, 96 (485 SE2d 755) (.1997) (Carley, J., dissenting). In this case, the defendant was indicted for various acts that clearly were prohibited by the statute as being immoral or indecent. These acts included, inter alia, touching the children’s genital areas with his fingers and a vibrator in an effort to arouse or satisfy his own sexual desires. In addition, under separate counts, the defendant was indicted for engagingm oral sodomy and sexual intercourse with the children. As such, there is no merit in the defendant’s assertion that he lacked statutory notice that these acts were prohibited.

(b) The defendant also claims that the indictment was defective because it failed to specify that the exact dates of the illegal acts were unknown to the Grand Jury. However, “[w]here the exact date is not stated as a material allegation of the time of commission of the offense in the indictment, it may be proved as of any time within the statute of limitations,” as long as the defendant is not surprised or prejudiced by presentation of evidence that the offenses occurred at a time “substantially different from that alleged in the indictment.” (Citations and punctuation omitted.) Hutton v. State, 192 Ga. App. 239, 241 (384 SE2d 446) (1989). The defendant’s assertion that the five-year period encompassed “too many offenses over a too long [of a] time span and against two different victims” does not establish such prejudice or surprise. There was no error in the trial court’s refusal to quash the indictment.

3. In his third enumeration, the defendant asserts that the trial court erred when it admitted into evidence videotapes depicting various types of sexual activity, including one videotape which depicted sexual torture and murder. We disagree.

“Admission of evidence is a matter which rests largely within the sound discretion of the trial judge, and if the evidence has a tendency to establish a fact in issue, that is sufficient to make it relevant and admissible. The Georgia rule favors admissibility of any relevant evidence no matter how slight its probative value.” (Citations omitted.) Tyler v. State, 176 Ga. App. 96, 99 (335 SE2d 691) (1985); see also Holman v. State, 202 Ga. App. 57, 58 (413 SE2d 234) (1991). It is well established that sexually explicit videotapes and other paraphernalia are “admissible to show the lustful disposition and bent of mind of the defendant. [Cits.]” Tyler, supra at 100; see also McBee v. State, 228 Ga. App. 16, 26 (491 SE2d 97) (1997); Miller v. State, 219 Ga. App. 213, 217 (464 SE2d 621) (1995); King v. State, 209 Ga. App. 529, 530 (433 SE2d 722) (1993); Burris v. State, 204 Ga. App. 806, 808 (420 SE2d 582) (1992); Stamey v. State, 194 Ga. App. 305, 307 (390 SE2d 409) (1990); Fortenberry v. State, 193 Ga. App. 329 (387 SE2d 607) (1989).

Further, this evidence is particularly admissible “when it has been exhibited to the victim by defendant as a means of orientating, training, enticing, or lulling the child into performing sexual acts.” (Emphasis in original.) Fortenberry, supra at 329. The tapes are also admissible if they corroborate the victim’s testimony that the defendant possessed commercial, sexually oriented films. Miller, supra at 217. However, sexual tapes and paraphernalia belonging to the defendant are admissible to show lustful disposition even when the victims do not recognize them specifically as having been used on them or in their presence. Phagan v. State, 268 Ga. 272, 282 (486 SE2d 876) (1997).

Such relevant evidence is admissible, even if it is “gruesome,” unless it is unnecessarily duplicative or gratuitous. Brown v. State, 250 Ga. 862, 867 (302 SE2d 347) (1983); see also Ramey v. State, 250 Ga. 455, 456 (298 SE2d 503) (1983). If there is any question about admissibility, “it is a well established rule of law that the rules of evidence require that the evidence be admitted and its weight and effect left to the jury.” (Citations and punctuation omitted.) Burris, supra at 808; McBee, supra at 26; Helton v. State, 206 Ga. App. 215, 217 (424 SE2d 806) (1992); Stamey, supra at 308.

In this case, the victims testified that the defendant showed them sexually explicit videotapes, including tapes which were “violent.” One victim testified that the defendant told her to watch a tape “so I would understand how to do it.” Although one victim testified that the tapes did not show “torture,” two other witnesses testified that the victims told them that at least one tape contained a murder scene.

In considering the admissibility of the evidence, the trial court withheld ruling on the defendant’s motion to exclude the tapes until after the witnesses had testified. The trial court subsequently ruled that the videotape containing the murder scene was “similar ... if not identical” to the tape described by one of the victims, and that the other tapes showed the defendant’s bent of mind and lustful disposition. The court then carefully limited the amount of videotape to be shown to the jury; approximately three minutes of tape were presented. Under these circumstances, we find no abuse of discretion in the trial court’s decision to admit the videotapes.

4. The defendant also claims that Officer Allen’s testimony that the first videotape contained “a murder scene that was described by [one of the victims]” was inadmissible opinion evidence. We disagree.

The officer’s testimony restated general information gained from the victims; the officer did not testify specifically as to the statements made by the victims during the investigation regarding the type of murder scene they had observed on the tape. The officer testified that, based on the victims’ statements, videotapes were seized from the defendant’s home. After such seizure, the officer verified the contents of the seized tapes and apparently concluded that the tapes may have been viewed by the victims. However, the officer’s testimony was not a conclusion as to whether the victims actually saw the tape, but was in response to the prosecutor’s request that he identify specific pieces of the State’s evidence.

Further, in addition to the officer’s testimony, the jury heard conflicting testimony regarding the tapes from the victims, the DFCS caseworker, and a defense witness. Based on such testimony, the jury was able to determine for themselves whether or not the victims viewed this specific videotape. The officer’s testimony did not invade the jury’s province as to this issue. Cf. Allison v. State, 256 Ga. 851, 853 (353 SE2d 805) (1987). Compare Williams v. State, 254 Ga. 508, 510 (330 SE2d 353) (1985) (holding that the detective’s conclusion that the defendant had altered the crime scene was inadmissible).

5. The defendant asserts that the trial court should have excluded testimony regarding his prior nolo contendere plea to five counts of practicing law without a license. Upon examination of the transcript, this Court noted several instances where such evidence was introduced, directly or indirectly.

(a) The defendant notified the State that he intended to introduce evidence of his good character. See OCGA § 24-9-84. Upon direct examination during the defendant’s case-in-chief, a witness was questioned as to the reputation of the defendant in the community prior to his being charged with child molestation. The witness stated that the reputation was good and that he would believe the defendant under oath. On cross-examination, the State asked the witness if he knew that the defendant “was holding himself out to be a lawyer back several years ago?” The defendant objected, but then conceded that the question was appropriate to test the extent and foundation of the witness’ knowledge of the defendant. The State then asked the witness whether he knew that the defendant had been “taking money from folks to practice law” and had “pled guilty to practicing law without a license?” The witness denied such knowledge.

“When the defendant, in the trial of a criminal case, puts his character in issue[,] the State may cross-examine the witnesses offered by him in order to test their knowledge of his character^ i.e.,] the extent and foundation of the witness’ knowledge.” (Citations and punctuation omitted.) Cunningham v. State, 182 Ga. App. 591 (356 SE2d 542) (1987);Ailstock v. State, 159 Ga. App. 482, 485 (283 SE2d 698) (1981). Accordingly, there was no error in admitting this testimony.

(b) During cross-examination of the defendant’s former girl friend (and the victims’ mother), the State questioned the witness about an episode in which the defendant had threatened her. with harm. In responding to the State’s inquiry as to why she dropped the charges the next day, the witness testified that “he always threatened that I was going to hurt his ability to practice law. . . .” The State asked if this occurred when the defendant told her that he was a lawyer, and the witness responded, “No. He told me he was a lawyer when I first met him in ’91.” The defendant did not object to this testimony. The witness also testified that the defendant had shown her business cards which identified him as an attorney at law. The defendant objected only to the form of the State’s follow-up question, asserting that the card must first be admitted into evidence. As such, any objection to the admission of this testimony was waived. See Letlow v. State, 222 Ga. App. 339, 343-344 (474 SE2d 211) (1996).

(c) The defendant took the stand in his own defense and testified on direct that he had worked in a law office for approximately one year and that he had contacted the State Bar of Georgia about becoming a mediator. During cross-examination, the defendant admitted that he had printed up the business cards identifying him as an attorney at law, even though he was never licensed to practice law. The State then asked “Yet you held yourself out as being an attorney?” In response, the defendant said ‘Yes. But I have made amends, and the Court and the system has [sic] forgiven me.” (Emphasis supplied.) When the State questioned whether the defendant had pled guilty to practicing law without a license, defense counsel asserted his “continuing objection.” The defendant then testified that he had, instead, pled nolo contendere to five counts of practicing law without a license. When the State asked about his sentence, defense counsel objected to such questioning unless the State could introduce a certified copy of the conviction; the objection was overruled. Upon further questioning by the State without objection, the defendant explained in detail the circumstances behind his plea.

“Where the defendant testifies and admits prior criminal conduct, he has not placed his character ‘in issue’ within the meaning of OCGA § 24-9-20 (b). Rather, he has raised an issue which may be fully explored by the State on cross-examination. McDaniel v. State, 248 Ga. 494 (283 SE2d 862) (1981).” (Emphasis supplied.) Jones v. State, 257 Ga. 753, 759 (363 SE2d 529) (1988); see also OCGA § 24-9-64; Wilkey v. State, 215 Ga. App. 354, 355 (450 SE2d 846) (1994); Mitchell v. State, 193 Ga. App. 214, 217 (387 SE2d 425) (1989). In this case, the defendant volunteered that “the Court and the system [have] forgiven me,” clearly implying that he had been involved in some conduct with legal implications. The trial court properly allowed the State to follow up on this testimony, even though the incident did not result in a conviction.

Further, even if the evidence of the defendant’s nolo contendere plea and the surrounding circumstances thereof should have been excluded, any error was harmless since the evidence was cumulative of prior testimony and, in light of the overwhelming evidence of the defendant’s guilt, “it is highly probable that it did not contribute to the jury’s verdict against [the defendant]. [Cit.]” Smith v. State, 222 Ga. App. 366, 370 (474 SE2d 272) (1996); see also Hayes v. State, 263 Ga. 15, 16 (426 SE2d 557) (1993); Johnson v. State, 238 Ga. 59, 61 (230 SE2d 869) (1976); Parker v. State, 226 Ga. App. 462, 464 (486 SE2d 687) (1997). “For a conviction to be reversed, [the defendant] must show both error and harm. Such impeachment, [if] improper, did not rise to the level of reversible error.” McBee, supra at 21.

6. The defendant also asserts that it was error to admit other acts of misconduct, including evidence that the defendant threatened the victims’ mother with a weapon, causing her to call 911; that he pinned her down and repeatedly slapped her; and that he assaulted her by shoving his hand down her throat and telling her to “pretend it’s a big dick.” Such evidence was elicited during the cross-examination of the victims’ mother, a defense witness. A rebuttal witness was also called to corroborate the mother’s testimony regarding her call for assistance in 1994.

The defendant is charged with raping and sodomizing the witness’ children and threatening to harm them and the witness if the children reported the crimes. Therefore, we find that the evidence was relevant to the issues to be decided in this case. See Brownlee v. State, 225 Ga. App. 311, 314 (483 SE2d 370) (1997). Compare Smith v. State, 91 Ga. App. 360, 361 (85 SE2d 623) (1955) (evidence was irrelevant to any jury issue to be decided). Further, the defendant had previously placed his character in issue by presenting witnesses to testify as to his good character. See Division 5, supra. Accordingly, there was no error in the admission of this evidence on cross-examination.

7. In his next enumeration of error, the defendant asserts that he should have been granted a mistrial based on an improper communication between jurors outside the jury room. The defendant presented a witness, his son-in-law, who claimed to have overheard a conversation between two jurors in the men’s rest room. Such conversation allegedly involved the defendant’s testimony.

After questioning the son-in-law outside the presence of the jury, the trial court voir dired the jury panel concerning this alleged incident. None of the jurors indicated that they had discussed the case. Later, following the verdict, the trial court specifically questioned, under oath, both jurors who were allegedly involved. Although one juror admitted that he was asked about the defendant’s testimony, the other juror denied that he was involved in any discussion about the case prior to deliberations. Both jurors also denied that anything that occurred outside the courtroom had affected their deliberations or verdict. The trial court then determined that, even if a conversation took place, it did not affect the jurors in their deliberations. There was no error. See Holcomb v. State, 268 Ga. 100,103 (485 SE2d 192) (1997).

Decided March 11, 1998

Reconsideration denied March 25,1998

Troy R. Millikan, for appellant.

8. The defendant also alleges that the prosecutor improperly argued that a guilty verdict was appropriate because only the jurors could “give [the victim] back one speck of dignity and humanity because he has stripped her of everything.” This argument was in the context of reviewing the testimony of one of the victims that, following years of sexual abuse by the defendant, she had twice attempted to kill herself and was now living in a detention facility.

A prosecutor “may argue to the jury the necessity for enforcement of the law and may impress on the jury, with considerable latitude in imagery and illustration, its responsibility in this regard.” (Citations and punctuation omitted.) Shelton v. State, 146 Ga. App. 763, 765 (247 SE2d 580) (1978); see also Johnson v. State, 246 Ga. 126, 129 (269 SE2d 18) (1980). The trial court did not abuse its discretion in allowing the State’s argument.

9. In his final enumeration, the defendant claims that the trial court erred in denying his motion for a directed verdict as to statutory rape of the older victim, asserting that the victim’s testimony was not corroborated. We disagree.

The victim, who was 14 years of age at the time of the trial, testified that the defendant started having sexual intercourse with her when she was 11. She also testified that the defendant told her she could not get pregnant because he had had a vasectomy. Two other witnesses testified that the victim told them about the intercourse and the defendant’s claim regarding his vasectomy. The defendant admitted to having had a vasectomy and, also, was examined by a medical doctor and found to have had a vasectomy.

“The quantum of corroboration needed in a rape case is not that which is in itself sufficient to convict the accused, but only that amount of independent evidence which tends to prove that the incident occurred as alleged. Slight circumstances may be sufficient corroboration, but ultimately the question of corroboration is one for the jury. Considering all the evidence presented at trial, we are satisfied that the evidence was sufficient to corroborate the victim’s testimony.” (Citations and punctuation omitted.) Davis v. State, 204 Ga. App. 657 (420 SE2d 349) (1992). This enumeration is without merit.

Judgment affirmed.

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

Timothy G. Madison, District Attorney, Robin R. Riggs, Assistant District Attorney, for appellee.

       It is undisputed that the tapes in evidence were legally obtained during a search of the defendant’s home. Pursuant to information obtained from the victims, police officers searched under the defendant’s waterbed and found the tapes hidden behind the drawers.

       During trial, defense counsel repeatedly asserted a “continuing objection” to the admission of evidence of specific bad acts by the defendant.


author: Judge Harold R. Banke.

text:
    A98A0190.
    EPPINGER v. THE STATE.
    (500 SE2d 383)
   Judge Harold R. Banke.

Preston Eppinger was convicted of possession of cocaine with intent to distribute and possession of marijuana with intent to distribute. He enumerates five errors on appeal.

This case arose after a confidential informant and Sergeant Duncan, an undercover member of a special high risk strike force, completed several controlled buys in different locations. At their final destination, the informant entered an apartment while Duncan watched from his car. When the informant returned with cocaine he had purchased, he told Duncan that the seller was expecting his supplier to arrive shortly in one of several makes of cars. The informant returned to the apartment and Eppinger arrived shortly thereafter. The informant then rushed out and told Duncan that the supplier was in the apartment, but would be leaving shortly with a quantity of drugs. Duncan then arranged for back up and a traffic control officer to detain Eppinger. Just prior to stopping Eppinger, the traffic control officer observed him lean over toward the passenger side floorboard. In less than a minute, a strike force member, Officer Frank, arrived at the scene and arrested Eppinger for loitering for the purpose of engaging in drug activity. During a search incident to arrest, Frank discovered $470 and a pager on Eppinger. Because Eppinger’s car was stopped on a busy interstate, Frank then conducted an inventory search during which he found two bags containing cocaine and marijuana under the passenger seat and almost a pound of marijuana in the trunk. Held:

1. The trial court did not deny Eppinger his right to open and conclude closing argument. See OCGA § 17-8-71. The record shows that Eppinger successfully moved without objection to admit Officer Frank’s police report into evidence and then cross-examined Frank on its contents. Clearly, the jury considered the police report as any other item of evidence. Seavers v. State, 208 Ga. App. 711, 713 (3) (431 SE2d 717) (1993). With its admission, Eppinger forfeited his right to open and conclude argument to the jury. Warnock v. State, 195 Ga. App. 537, 539 (2) (394 SE2d 382) (1990); see Kennebrew v. State, 267 Ga. 400, 403-404 (4) (480 SE2d 1) (1996).

2. We reject Eppinger’s contention that the State failed to establish a chain of custody over the seized contraband. Officer Frank testified that he packed all the seized items in a big bag, stapled and taped it shut, initialed it, and delivered it to the property room for Sergeant Pirkle to transport to the State Crime Lab. The crime lab chemist testified that he received the contraband from Pirkle. This evidence clearly satisfied the State’s burden of showing “with reasonable certainty that the evidence is the same as that seized and that there has been no tampering or substitution.” Quinn v. State, 209 Ga. App. 480, 482 (3) (433 SE2d 592) (1993). Notwithstanding Eppinger’s argument to the contrary, Pirkle’s failure to testify did not render the evidence inadmissible in the absence of any indication of tampering or substitution. Mathis v. State, 204 Ga. App. 244 (1) (418 SE2d 800) (1992) (“The fact that one of the persons in control of a fungible substance does not testify at trial does not, without more, make the substance or testimony relating to it inadmissible.”); accord Tatum v. State, 195 Ga. App. 349, 350 (2) (393 SE2d 494) (1990).

3. Eppinger maintains that the dearth of information on the confidential informant’s veracity and reliability was fatal to the State’s claim of probable cause. We disagree.

Sergeant Duncan testified that the confidential informant had provided information for no less than ten search warrants leading to the discovery of narcotics and prior to that was a reliable source for another detective. He also testified that the informant unexpectedly learned of Eppinger’s impending arrival while he was making a controlled buy and mentioned several types of vehicles he might be driving.

This testimony was sufficient to provide the requisite indicia of reliability necessary to establish probable cause. See Martin v. State, 214 Ga. App. 388, 389 (448 SE2d 57) (1994). It demonstrated both the basis of the informant’s knowledge and informant’s veracity and reliability. Wells v. State, 212 Ga. App. 60, 63 (2) (441 SE2d 460) (1994). Further, the information adequately predicted future acts and the details of the tip were verified by several officers’ personal observations. Id.; Turner v. State, 213 Ga. App. 77, 78 (1) (443 SE2d 703) (1994). The fact that probable cause was predicated on the collective knowledge of several officers does not alter our conclusion that the trial court properly rejected Eppinger’s motion to suppress. Burgeson v. State, 267 Ga. 102, 105 (3) (a) (475 SE2d 580) (1996).

4. The trial court did not clearly err in rejecting Eppinger’s Bat-son challenge to Juror 26. Batson v. Kentucky, 476 U. S.. 79 (106 SC 1712, 90 LE2d 69) (1986). The State justified its peremptory strike of Juror 26, an African-American male, on the ground that he stated he had a close friend involved in a drug case. See Turner v. State, 267 Ga. 149, 151 (2) (476 SE2d 252) (1996). Eppinger argued that the juror had indicated he was no longer friends with that individual. Inasmuch as the trial court’s decision is entitled to “great deference” and the State’s explanation for exercising its strike was not implausible or based on characteristics peculiar to any race, we must affirm the trial court’s decision not to reinstate Juror 26. Ledford v. State, 207 Ga. App. 705, 706-707 (1) (429 SE2d 124) (1993); see Turner v. State, 267 Ga. at 151 (1).

Decided March 25, 1998.

Kunle Ogundele, Paul J. McCord, for appellant.

J. Tom Morgan, District Attorney, Lawrence Delan, Melissa L. Himes, Assistant District Attorneys, for appellee.

5. Eppinger contends that the trial court committed reversible error by refusing to dismiss a panel in which two Batson challenges were upheld. Rather than beginning again with the remaining array, the court reinstated the two jurors and then permitted selection to resume starting with the first reinstated juror.

When Batson relegated to the States the methods for eliminating discriminatory peremptory challenges, the Supreme Court “expressed no view” on the propriety of reinstating improperly challenged jurors. Brown v. State, 218 Ga. App. 469, 472 (3) (462 SE2d 420) (1995) (quoting Batson, 476 U. S. at 99, n. 24). “Consistent with Batson’s directive to fashion appropriate methods, we have at least implicitly condoned the practice of reinstating improperly challenged jurors. [Cits.]” Brown, 218 Ga. App. at 472 (3). In the event that a Batson challenge is upheld, and where, as here, the jurors remain unaware of the party who struck them, reinstating improperly challenged jurors does not require reversal. See Brown, 218 Ga. App. at 472 (3).

Judgment affirmed.

Beasley and Ruffin, JJ, concur.

       Voir dire was not reported, but challenges and discussion related to it were.

       The jurors were not in the courtroom when the parties selected them.


text:
    A98A0368.
    ATLANTA GAS LIGHT COMPANY v. TRINITY CHRISTIAN METHODIST EPISCOPAL CHURCH et al. ATLANTA GAS LIGHT COMPANY v. THOMAS et al. ATLANTA GAS LIGHT COMPANY v. UPSHAW et al.
    A98A0369.
    A98A0370.
    (500 SE2d 374)
   Eldridge, Judge.

Appellant Atlanta Gas Light Company appeals (1) the trial court’s judgment affirming individual arbitration awards to appellees Trinity Christian Methodist Episcopal Church, Earl Harvey, Lula Barnes, and Jerry Thomas (case no. A98A0369); (2) the trial court’s judgment affirming individual arbitration awards to appellees Pheotis Upshaw and Barbara Wiley (case no. A98A0370); and (3) the trial court’s order denying appellant’s motion to vacate the appellees’ arbitration awards (case no. A98A0368). We affirm.

Appellees, property owners in a defined area of Augusta, Richmond County, Georgia, are six members in a sizable class-action suit seeking recovery for damage to property resulting from the manufacture of gas which occurred at appellant’s now decommissioned plant located in the same defined area. After extensive negotiations, all parties entered into a binding arbitration agreement pursuant to OCGA § 9-9-1 et seq.

A Settlement Agreement (“Agreement”) was submitted to the superior court whereby injured class members, at their election, would be compensated for either (1) a diminution in the fair market value of the damaged property or (2) the transfer to appellant of marketable title to the damaged property. The Agreement specifies that the amount of compensation will be determined by a neutral umpire following a prescribed Claims Process. Section III (E) of the Claims Process provides that “[t]he issue in the hearing shall be (1) whether the class member suffered any damage to or destruction or loss of property within the class area arising from the former manufactured gas plant site in Augusta, Georgia as a result of earlier operation or decommissioning of the manufactured gas plant and (2) if so, the amount of the diminution in fair market value as a result thereof (the ‘Settlement Amount’). The umpire may consider intrinsic value, including historical meaning, denominational impact and replacement costs.” (Emphasis supplied.)

If a class member elects to convey marketable title to his contaminated property, the Agreement provides that “AGLC [appellant] shall purchase the property at its fair market value. To determine fair market value of the property the parties shall use the Claims Process, except that the only issues at the hearing will be those identified in Section III (E) above” (Emphasis supplied.) The Agreement was approved and made the order and judgment of the court.

Pursuant to the Agreement, the six appelleeá/class members elected to convey marketable title to appellant. The umpire made awards to the individual appellees based upon the fair market value of the property, taking into account intrinsic, historic and denominational value of the individual properties, and replacement cost thereof. The superior court entered judgments affirming the individual awards and denied appellant’s motion to vacate. This appeal followed.

The Georgia Arbitration Code “shall apply to all disputes in which the parties thereto have agreed in writing to arbitrate and shall provide the exclusive means by which agreements to arbitrate disputes can be enforced.” OCGA § 9-9-2 (c). The Code sets forth four statutory grounds for vacating an arbitration award upon the application of a party subject to the award. The arbitration award shall be vacated if the court finds that the rights of the applying party were prejudiced by “(1) Corruption, fraud, or misconduct in procuring the award; (2) Partiality of an arbitrator appointed as a neutral; (3) An overstepping by the arbitrators of their authority or such imperfect execution of it that a final and definite award upon the subject matter submitted was not made; or (4) A failure to follow the procedure of this part, unless the party applying to vacate the award continued with the arbitration with notice of this failure and without objection.” OCGA § 9-9-13 (b). These four grounds are “the exclusive grounds for vacating an arbitration award.” Greene v. Hundley, 266 Ga. 592, 595 (468 SE2d 350) (1996). Herein, grounds 1, 2, and 4 are not applicable. Appellant challenges the awards made to the six appellees on the same ground: the umpire allegedly overstepped and imperfectly executed his authority as proscribed by OCGA § 9-9-13 (b) (3) when he “went beyond the scope of authority granted him by the settlement agreement and manifestly disregarded Georgia law regarding the consideration of intrinsic and historical value, replacement cost, in arriving at fair market value” of appellees’ properties. Held:

1. Appellant contends that “the umpire’s awards do not draw their essence from the settlement agreement and reflect a dispensing of the umpire’s personal notions of justice,” because the umpire utilized the intrinsic, historic, and denominational value of the properties, as well as replacement cost, to arrive at an award; appellant contends that “the gravamen of the settlement agreement as it relates to these awards is that AGLC agreed to buy the property for its fair market value.” (Emphasis in original.) Appellant argues that “it is evident from the Holding and the language in the Awards, that the umpire in fact decided to dispense ‘his own brand of industrial justice’ by awarding settlement amounts which he believed to be ‘fair.’ While this may be a laudable endeavor, it is not an endeavor with which he was charged under the terms of the settlement agreement approved by the Court.” We disagree.

The Agreement specifically authorized the umpire to utilize measures above and beyond traditional calculations of “fair market value,” to which traditional calculations appellant now wishes strict adherence. Clearly, “intrinsic, historic, and denominational value” and “replacement costs” are outside the scope of a standard “fair market value” evaluation as defined by appellant. “Fair market value” is defined as the price at which the property would change hands between a willing buyer and a willing seller, neither being under any compulsion to buy or to sell and both having reasonable knowledge of relevant facts. See Wright v. MARTA, 248 Ga. 372, 375 (283 SE2d 466) (1981). Obviously, strict adherence to such definition cannot be accomplished in the instant case where the sellers are not willing, and the buyer is being compelled to do so by lawsuit. Moreover, the terms of the Agreement specifically permit other relevant considerations. The fact that all parties agreed that these additional considerations would be included in a determination of the settlement amounts warrants an expectation that the umpire would bow to notions of “fairness” and base the settlement amounts upon more than a strict “fair market value” analysis. “[The] interpretation, meaning, or intent of the agreement [is] a matter clearly within the scope of the arbitrators’ authority.” Banderas v. Doman, 224 Ga. App. 198, 199 (480 SE2d 252) (1997). Hence, the umpire did not overstep his authority in awarding settlement amounts which encompass notions of fair market value, intrinsic, denominational, and historic value, as well as replacement cost. Such were permissible considerations under the terms of the Agreement.

2. Appellant contends that the umpire imperfectly executed his authority by manifestly disregarding Georgia law in rendering the awards. Appellant argues that the umpire improperly considered the replacement cost of the property, without evidence of depreciation which is required under Georgia law, and that the umpire judged “intrinsic value” to mean the subjective value of the property to the owner, contrary to Georgia law. Appellant’s arguments address two points: (1) the application of Georgia law to the umpire’s holdings; and (2) the sufficiency of the evidence to support the umpire’s holdings.

(1) “The authority of the arbitrator gives [him] the inherent power to fashion a remedy as long as the award draws its essence from the contract or statute.” (Citations and punctuation omitted.) Greene, supra at 595. The Code does not require that an arbitrator enter written findings of fact and law in support of an award, “nor does the Code require an arbitrator to explain the reasoning behind an award.” Id. Simply because the umpire in the instant case provided a limited rationale for his holdings does not provide a vehicle whereby the awards may be vacated because Georgia law was allegedly “imperfectly” applied. “[M]erely because the relief granted in the arbitration award could not or would not be granted by a court of law or equity is not grounds for vacating or refusing to confirm an award.” (Punctuation omitted.) Greene, supra at 595; Banderas, supra at 201. In the instant case, the umpire made “final and definite award[s] upon the subject matter submitted,” as required by statute. OCGA § 9-9-13 (b) (3). As the awards are consistent with the terms of the Agreement and thus reflect the “essence” of the contract, they do not demonstrate an imperfect execution of the umpire’s authority.

Decided March 25, 1998.

Hull, Towill, Norman & Barrett, David E. Hudson, Long, Aldridge & Norman, Phillip A. Bradley, R. Daniel Beale, for appellant.

Dye, Tucker, Everitt, Wheale & Long, Duncan D. Wheale, Thomas W. Tucker, Bell & James, John C. Bell, Jr., Pamela S. James, for appellees.

(2) “The prohibition against considering the sufficiency of the evidence as grounds for vacating an arbitration award is unconditional. Therefore, a reviewing court is prohibited from weighing the evidence submitted before the arbitrator, regardless of whether the court believes there to be sufficient evidence, or even any evidence, to support the award.” Greene, supra at 596-597. Thus, to the extent that appellant’s contentions regarding evidence of depreciation and subjective evidence of “intrinsic value” address the sufficiency of the evidence to support the umpire’s awards, such contentions will not be considered. Banderas, supra at 201.

In sum, appellant has not demonstrated any statutory grounds for vacating the arbitration awards. The parties expressly agreed that the arbitrator would resolve all existing disputes between them and, accordingly, we find that the umpire in this case did not overstep his authority or engage in an imperfect execution thereof. Greene, supra at 596.

Judgments affirmed.

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

       That the appellees’ individual properties sustained damage is not disputed by the appellant.

       The applicability of “denominational” value relates only to the property belonging to appellee Trinity Christian Methodist Episcopal Church, which applicability appellant contests.


text:
    A98A0463.
    WILSON v. THE STATE.
    (500 SE2d 387)
    Decided March 25, 1998.

      Lloyd J. Matthews, for appellant.
   Eldridge, Judge.

Appellant John Jeffery Wilson was indicted for aggravated assault against Shane Upchurch, a male friend of appellant’s girl friend, Denise Deaton, and for burglary and aggravated assault against Deaton. A Henry County jury found appellant guilty of the lesser included offense of simple battery against Upchurch; he was acquitted of all other charges. He appeals his conviction. We affirm.

1. Appellant contends that the trial court erred in denying his motion for continuance in order to hire new counsel. This contention is meritless.

The record shows that appellant was appointed counsel nine months prior to trial. Over a month prior to the scheduled trial date, appellant knew that the trial court would not accept a guilty plea, because appellant refused to admit his guilt in the matter. In addition, the record shows that appellant could not articulate a basis for his dissatisfaction with his court-appointed attorney other than “I would not be comfortable with Mr. Matthews representing me at trial.”

“The grant or denial of a continuance, including on grounds of absence of counsel, is within the discretion of the trial court and will not be disturbed unless it clearly appears the trial court abused that discretion.” Stephens v. State, 208 Ga. App. 620 (431 SE2d 422) (1993). Denial of a continuance may be proper where defendant negligently failed to employ counsel promptly or where it appears he is using the tactic for delay. Stephens, supra at 621. Based on the record herein, we cannot say the trial court abused its discretion in denying appellant’s motion for continuance, made on the day of trial, in order to hire new counsel.

2. Appellant appeals the denial of his motion for bond pending his appeal. “Because we have decided the main appeal, the appeal from the denial of bond pending post-trial relief is moot. [Cit.]” Fenimore v. State, 218 Ga. App. 735, 739 (463 SE2d 55) (1995).

Judgment affirmed.

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

Tommy K. Floyd, District Attorney, Thomas R. McBerry, Assistant District Attorney, for appellee.

       Appellant concedes that “Appellant is not faulting the Trial Court for refusing the plea, when the Appellant failed to provide a factual basis for accepting his tendered plea. This was entirely proper.”