text:
    A00A2398.
    WARDEN v. THE STATE.
    (543 SE2d 388)
   Eldridge, Judge.

A Dougherty County jury convicted defendant Christopher Warden of trafficking in cocaine (Count 1), obstruction of an officer (Count 3), and attempting to elude (Count 4). Defendant was sentenced to 30 years confinement to serve 20 years and the remainder probated. The defendant appeals from the superior court’s denial of his motion for new trial, contending (1) that the cocaine should have been excluded from evidence because no proper chain of custody was shown; and (2) that the evidence as circumstantial was insufficient to support his conviction of trafficking in cocaine. Finding no merit to these contentions, we affirm.

Investigator Kevin Casey and Officer Michael Persley of the Albany Dougherty Drug Unit (“drug unit”) testified that plastic bags containing a powdery substance had fallen to the ground in their struggle to arrest the defendant. In other testimony, Investigator Chris Bailey, also of the drug unit, stated that he found four plastic wrappers containing a white powdery substance on the ground after he arrived at the scene of defendant’s arrest. Investigator Bailey placed the wrappers in individual plastic bags, initialing each. He then placed the plastic bags, as initialed, in individual brown paper bags, transferring the evidence thus marked and protected to Officer Persley. Officer Persley turned the evidence over to the drug unit’s evidence custodian; the evidence custodian, in turn, hand-carried the evidence to the state crime lab where testing for purity showed that three of the plastic bags contained eighty-four percent pure cocaine weighing 28.4 grams. At trial, chain of custody witnesses Persley, the evidence custodian, and the crime lab technician identified State’s Exhibit 1 as the evidence transferred and handled for crime lab analysis, as above. All testified that State’s Exhibit 1 had not been tampered with. Held:

1. The defendant argues that State’s Exhibit 1 should have been excluded from evidence because no proper chain of custody was shown. We find no error.

Where the State seeks to introduce evidence of a fungible nature, it must show a chain of custody which is adequate to preserve the identity of the evidence. Hence, the burden is on the prosecution to show with reasonable certainty that the evidence is the same as that seized and that there has been no tampering or substitution. However, the State need not negate all possibility of tampering and need only establish reasonable assurance of the identity of the confiscated evidence. . . . Moreover, the remote possibility that some intermeddler having nothing to do with the case tampered with the evidence at some point after laboratory analysis thereof does not require the suppression of the evidence.

(Citations and punctuation omitted.) Brown v. State, 190 Ga. App. 324, 326-327 (3) (378 SE2d 908) (1989). Under the circumstances of this case, we conclude that chain of custody was established to a reasonable certainty. The remote possibility that State’s Exhibit 1 was in some way disturbed by an intermeddler not otherwise connected to the case because the paper bags in which the exhibit was initially transported were not introduced in evidence does not require the suppression of the evidence. See Pope v. State, 256 Ga. 195, 200 (6) (345 SE2d 831) (1986). Accordingly, this claim of error is without merit.

2. The defendant argues that the evidence of trafficking in cocaine was entirely circumstantial and that the State failed to eliminate all other reasonable hypotheses save his guilt. We disagree.

In addition to testifying that the plastic wrappers in issue had fallen to the ground during the course of defendant’s arrest, Officer Persley testified that the defendant repeatedly reached for them as he and Investigator Casey struggled to handcuff the defendant. However, even if we deemed the evidence presented to be entirely circumstantial, the question of whether the evidence excluded every reasonable hypothesis except the defendant’s guilt was for the jury. Cantrell v. State, 230 Ga. App. 693, 695 (1) (498 SE2d 90) (1998). The evidence presented was sufficient to authorize the jury to find the defendant guilty of trafficking in cocaine under the standard set forth in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Decided November 29, 2000.

Brimberry, Kaplan & Brimberry, A. Lee Hayes, for appellant.

Kenneth B. Hodges III, District Attorney, Sadhana Pandey, Assistant District Attorney, for appellee.

Judgment affirmed.

Blackburn, P. J., and Barnes, J., concur.

       The superior court granted defendant’s motion for directed verdict as to Count 2 (possession of cocaine within 1,000 feet of a school).


source: Caselaw Access Project

author: Eldridge, Judge.

license: Public Domain

text:
    A00A2566.
    FEW v. CAPITOL MATERIALS, INC.
    (543 SE2d 102)
   Eldridge, Judge.

Appellee-plaintiff Capitol Materials, Inc. (“Capitol”) filed a materialman’s lien due to the failure to pay for specific building materials it delivered to the property of appellant-defendant Joseph A. Few, Jr. for improvements thereon. New discharged the lien by filing a bond. Subsequently, Capitol commenced this action against New to recover on the bond. The trial court granted summary judgment to Capitol. New appeals. On de novo review, we find no error and affirm.

1. New contends that he is an improper party to this action; that Capitol failed to pursue the contractor to whom the materials were sold; and that the trial court thus erred in entering judgment against him. We do not agree.

This was not an action on the lien. This was an action to recover on the bond filed by Few. The bond at issue stated that “Joseph A. Few, Jr., as Principal, is bound unto Capitol Materials, Incorporated, in the just and full sum of . . . $2,016.63.” Thus, the bond provided the necessary contractual link between Capitol and New individually. “Because the materialman may sue the principal and the surety jointly, or at his option he may sue either the principal or the surety alone, the . . . contractor was not an indispensable party.” The trial court did not err in granting summary judgment on this ground.

2. Next, New contends Capitol did not show that the dry wall materials at issue were actually delivered to the construction site and used to improve his property. Again, we must disagree.

In the instant case, New does not contend the materials were not delivered and used to improve his property, and he has presented no evidence to indicate the materials were not so delivered and used. Instead, New “merely dispute [s] the sufficiency and accuracy of [Capitol’s] evidence.” In that regard, Capitol submitted a shipping invoice which showed that the specific dry wall materials at issue were delivered to Lot 52, Bramble Oaks, which New admits was his property. The invoice was signed by the persons who delivered the materials.

Materials are presumed to be used on a particular construction project when it is shown that the materials were delivered to the project for that purpose. . . . [Capitol] presented evidence in the form of [a] shipping ticket [ ] indicating the delivery of [the specific materials] for use on [Few’s property]. There are no other shipping tickets which show that the [specific material] was shipped to a [property] other than [Few’s property].

When a motion for summary judgment is submitted and supported by evidence, the adverse party may not rest on his case as made, but must set forth specific facts to show there is a genuine issue for trial. The burden of proof is shifted when the moving party makes a prima facie showing that it is entitled to judgment as a matter of law. “At that time the opposing party must come forward with rebuttal evidence or suffer judgment against him.”

Here, the record contains no evidence which rebuts the presumption created by the signed delivery invoice that the materials were delivered and used on Few’s property, especially since New does not claim the materials were not so delivered and used. Accordingly, the trial court’s grant of summary judgment was not error.

3. We find no merit to Few’s contention regarding the deficiency of notice under OCGA § 44-14-361.1 (a) (4). When New posted the bond, the real property was discharged from the lien. “The bond served as a replacement for the lien, and there was no longer any lien against the property to be foreclosed.” Capitol’s claims were then predicated on the bond, and the “failure to file the notice required under OCGA § 44-14-361.1 (a) [(4)] is not a bar to recovery in this suit against [Few] on the bond.”

Decided November 29, 2000

King & Croft, Terrence L. Croft, for appellant.

Rachelson & White, Ira L. Rachelson, for appellee.

4. New contends the trial court abused its discretion by refusing to reopen the discovery period so that New could depose Capitol’s Chief Financial Officer (“CFO”). However, New has not shown an abuse of discretion. His contention that the CFO’s affidavit provided the “only evidence of deliveries in the field” is contradicted by the record which contains the shipping invoice showing delivery to Few’s property. A trial court has wide discretion to shorten, extend, or reopen the time for discovery, and its decision will not be reversed unless a clear abuse of that discretion is shown. No such showing having been made, this contention provides no basis for reversal.

Judgment affirmed.

Blackburn, P. J., and Barnes, J., concur.

        Hendricks v. Blake & Pendleton, Inc., 221 Ga. App. 651, 652 (472 SE2d 482) (1996).

       (Citations and punctuation omitted.) Id.

       (Citations and punctuation omitted.) Elec. Distrib. v. Turner Constr. Co., 196 Ga. App. 359, 364-365 (395 SE2d 879) (1990).

       The lien was discharged when New filed bond, thereby permitting the free transfer of the property which New subsequently sold.

        TDS Constr. v. Burke Co., 206 Ga. App. 223, 224 (1) (425 SE2d 359) (1992). See also Sanford v. Hodges Builders Supply, 166 Ga. App. 86, 87 (2) (303 SE2d 280) (1983).

       (Citations and punctuation omitted.) Elec. Distrib. v. Turner Constr. Co., supra at 365.

        TDS Constr. v. Burke Co., supra at 224.

        Benning Constr. Co. v. All-Phase Elec. Supply Co., 206 Ga. App. 279, 280 (424 SE2d 830) (1992).

        All Phase Elec. Supply Co. v. Foster & Cooper, Inc., 193 Ga. App. 232, 233 (2) (387 SE2d 429) (1989); Hardee v. Spivey, 193 Ga. App. 234 (387 SE2d 430) (1989); Burgess v. Travelers Indem. Co., 185 Ga. App. 82, 84 (363 SE2d 308) (1987).

        Stewart v. Stewart, 260 Ga. 812, 813 (400 SE2d 622) (1991).


author: Eldridge, Judge. Barnes, Judge,

text:
    A00A2266.
    WALLACE v. STATE FARM FIRE & CASUALTY COMPANY.
    (539 SE2d 509)
   Eldridge, Judge.

After being seriously injured in an automobile accident, plaintiff-appellant Dennis J. Wallace brought suit against defendant-appellee State Farm Fire & Casualty Company for lost wages benefits under an automobile insurance policy issued him by the company. The policy’s lost wages coverage was limited to an amount not exceeding $15,000 for total disability, the “result of bodily injury caused by accident . . . while occupying or through being struck by a land motor vehicle or trailer.” The plaintiff’s complaint, styled as a “Complaint on Contract,” sought consequential damages for the repossession of his Ford Bronco and adverse impact on his credit reputation for the defendant’s breach of contract and bad faith in stopping the payment of lost wages benefits to him in an eight-month period. The evidence showed that defendant stopped the foregoing payments based upon an independent medical examination it required of the plaintiff which determined he was not totally disabled. The defendant later reconsidered the determination of the independent medical examiner (“IME”) upon the submission of medical opinions from the plaintiff’s treating physicians and resumed its payments to the plaintiff, ultimately paying them out in full. The trial court granted defendant partial summary judgment as to plaintiff’s claim for consequential damages upon breach of contract theory, finding “[t]he only surviving claim is the plaintiff’s claim for bad faith damages and attorney’s fees as provided by OCGA § 33-4-6.” On this, the plaintiff amended his complaint, alleging misfeasance of a contractual duty against the defendant, this time seeking punitive as well as consequential damages. Thereafter, the state court denied plaintiff’s motion for reconsideration of the designated state court’s grant of partial summary judgment to defendant and granted defendant’s motion for summary judgment as to the issues of bad faith penalties and attorney fees. Plaintiff now appeals from the grant of defendant’s motion for summary judgment, arguing entitlement to damages for the loss of his vehicle and damage to his credit reputation (a) for defendant’s bad faith in suspending payment of his lost wages benefits under OCGA § 33-4-6; and, in the alternative, (b) for defendant’s misfeasance of a contractual obligation to do so.Held,:

It is undisputed in the record that defendant suspended payment of plaintiff’s lost wages benefits relying upon the opinion of a board-certified orthopedic surgeon. As a consequence, summary judgment on the question of plaintiff’s claim for bad faith damages under OCGA § 33-4-6 was proper. “As a matter of law, bad faith penalties and attorney’s fees under OCGA § 33-4-6 are not awardable if an insurer has a reasonable and probable cause for refusing to pay a claim.” (Citations and punctuation omitted.) Lancaster v. USAA Cas. Ins. Co., 232 Ga. App. 805, 807 (3) (502 SE2d 752) (1998). An insurer does not act unreasonably in doing so where, as here, the insured fails to prove that the examiner’s opinion was patently wrong by facts timely brought to the insurer’s attention. Id. Further, although plaintiff argues defendant’s bad faith in stopping payments to him, contending that a representative of the defendant told him payments would stop notwithstanding any doctor’s determination before he was given a medical examination, there is only hearsay to this effect in the affidavit supporting his response to defendant’s motion for summary judgment in the record before us. “An alleged statement by an unidentified witness is hearsay and inadmissible.” Seed v. Smith & Woods Mgmt. Corp., 242 Ga. App. 395, 396 (1) (530 SE2d 29) (2000); Johnston v. Grand Union Co., 189 Ga. App. 270, 271 (1) (375 SE2d 249) (1988). Hearsay on motion for summary judgment is inadmissible. OCGA § 9-11-56 (e); Sykes v. City of Atlanta, 235 Ga. App. 345, 348 (5) (a) (509 SE2d 395) (1998) (“On summary judgment, evidentiary rules apply. [Cit.]”); Davis v. Haupt Bros. Gas Co., 131 Ga. App. 628, 629 (2) (206 SE2d 598) (1974) (“No evidentiary value is given to hearsay. Nat. Factor & Invest. Corp. v. Bank of Cochran, 224 Ga. 535, 543 (4) (163 SE2d 817) [(1968)].”). Moreover, even if not analyzed in the context of inadmissible hearsay, plaintiff, without explanation, contradicted his affidavit by his deposition testimony in which he deposed that defendant had not contacted him before his benefits were terminated and that he had not contacted the defendant until after his benefits were stopped. Plaintiff’s unexplained, self-contradicting testimony is likewise of no assistance to him. Gentile v. Miller, Stevenson &c., Inc., 257 Ga. 583 (361 SE2d 383) (1987); Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27, 30 (2) (343 SE2d 680) (1986). Accordingly, the state court did not err in granting defendant summary judgment as to bad faith damages. OCGA § 9-11-56 (e); Speir v. Krieger, 235 Ga. App. 392, 397 (2) (509 SE2d 684) (1998) (on summary judgment, plaintiff must point to specific evidence giving rise to a triable issue, if defendant movant has presented evidence negating essential element of plaintiff’s case or showing the absence of evidence supporting such an element).

Neither did the state court err in granting defendant summary judgment regarding plaintiff’s claim for consequential and punitive damages for misfeasance of a contractual duty in defendant. Speir v. Krieger, supra.

A defendant’s mere negligent performance of a contractual duty does not create a tort cause of action; rather, a defendant’s breach of a contract may give rise to a tort cause of action only if the defendant has also breached an independent duty created by statute or common law.

Traina Enterprises v. RaceTrac Petroleum, 241 Ga. App. 18, 19 (525 SE2d 712) (1999); Constr. Lender v. Sutter, 228 Ga. App. 405, 409 (2) (491 SE2d 853) (1997); Walton Elec. Membership Corp. v. Snyder, 226 Ga. App. 673, 678 (2) (487 SE2d 613) (1997). Even if there were a breach of a contractual duty in the instant circumstances (and we have found none), there is here no evidence of an insurance contract purporting to indemnify plaintiff for more than lost wages up to $15,000 in the event of plaintiff’s total disability. The plaintiff deposed that defendant made him no other promise. As a result, even an implied duty in the defendant to indemnify the plaintiff for damages attendant to the repossession of his privately owned vehicle and injury to his credit rating is here foreclosed. Absent a legal duty beyond the contract, no action in tort may lie upon an alleged breach of contractual duty. Traina Enterprises v. RaceTrac Petroleum, supra.

Judgment affirmed.

Blackburn, P. J., concurs. Barnes, J., concurs and concurs specially.

Barnes, Judge,

concurring specially.

Although I concur fully in the majority opinion under the evidence in this case, I write separately to point out that an insurance company’s mere assertion that the termination of benefits was based on an independent medical examination is not conclusive in the face of evidence that the independent medical examiner (IME) report was not the real reason the benefits were terminated.

An independent medical examination may provide a reasonable and probable cause to terminate benefits and thus be sufficient to preclude imposition of bad faith penalties (Lancaster v. USAA Cas. Ins. Co., 232 Ga. App. 805, 807 (3) (502 SE2d 752) (1998)), but that rule is not without limitation. If the recommendation of the IME is patently wrong and the facts are brought in a timely manner to the insurer’s attention, an IME report would not provide a reasonable basis for the denial of a claim. See Haezebrouck v. State Farm &c. Ins. Co., 216 Ga. App. 809, 811 (2) (455 SE2d 842) (1995); Colonial Life &c. Ins. Co. v. Donaldson, 172 Ga. App. 211, 212-213 (1) (322 SE2d 510) (1984). In the same manner, an IME report that was a mere pretext for an unwarranted prior decision to terminate benefits would not constitute reasonable and probable cause for termination of benefits because it would not be a “reasonable defense which vindicates the good faith of the insurer.” (Citation and punctuation omitted.) Progressive Cas. Ins. Co. v. Avery, 165 Ga. App. 703, 707 (1) (302 SE2d 605) (1983).

Decided September 12, 2000

Reconsideration denied November 30, 2000.

S'. Robert Hahn, Jr., for appellant.

Harper, Waldon & Craig, Thomas D. Harper, Trevor G. Hiestand, for appellee.

Here, I concur with the majority even though Wallace’s affidavit alleged that State Farm told him before the independent medical examination was performed that his benefits would be terminated regardless of what the IME said. His affidavit was contradicted, without explanation, however, by his deposition testimony that no one at State Farm contacted him before his benefits were terminated and he did not contact State Farm until after his benefits were stopped.

Thus, applying the contradictory testimony rule, Wallace’s unexplained, self-conflicting testimony is of no assistance to him. Gentile v. Miller, Stevenson &c., Inc., 257 Ga. 583 (361 SE2d 383) (1987); Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27, 30 (343 SE2d 680) (1986). Once the self-contradictory favorable portions of Wallace’s affidavit are eliminated, the remaining evidence construed in Wallace’s favor is not sufficient to create an issue of fact on this issue because the record shows that the IME report is dated before his benefits were terminated.

Consequently, the issue of pretext is not properly raised in this case.

       The policy defined “total disability” as the “insured, while living, is not able to do the usual work or any other work for which he or she is reasonably fitted by education, training or experience.”

       Pertinently, the IME, a board-certified orthopedic surgeon, determined that the plaintiff could be returned to the work force if not required to do heavy lifting, squatting or climbing.

       “OCGA § 33-4-6 is the exclusive remedy for bad faith denial of insurance benefits.” Collins v. Life Ins. Co., 228 Ga. App. 301, 304 (3) (491 SE2d 514) (1997).

       “Under OCGA § 33-4-6, an insurer is subject to imposition of a penalty and attorney fees if it refuses in bad faith to pay a covered loss ‘within 60 days after a demand has been made by the holder of the policy.’ ” Jones v. State Farm &c. Ins. Co., 228 Ga. App. 347, 350 (3) (491 SE2d 830) (1997).

       Though the “penalties provided by OCGA § 33-4-6 are exclusive, ... a tort action and an action for breach of contract may be asserted in the same complaint. [Cits.]” Gibbs v. Jefferson-Pilot Fire &c. Ins. Co., 178 Ga. App. 544, 545 (1) (343 SE2d 758) (1986).

       The rule in Lancaster is not without limitation. If the recommendation of the IME is patently wrong and the facts are timely brought to the insurer’s attention, an IME would not provide a reasonable basis for the denial of the claim. See Haezebrouck v. State Farm &c. Ins. Co., 216 Ga. App. 809, 811 (2) (455 SE2d 842) (1995); Colonial Life &c. Ins. Co. v. Donaldson, 172 Ga. App. 211, 212-213 (1) (322 SE2d 510) (1984). Similarly, if an IME determination were in the nature of mere pretext for an insurer’s unwarranted prior decision to terminate benefits, such IME determination would not constitute reasonable and probable cause for the termination of benefits — this because it would not be a “reasonable defense which vindicates the good faith of the insurer.” (Citation and punctuation omitted.) Progressive Cas. Ins. Co. v. Avery, 165 Ga. App. 703, 707 (1) (302 SE2d 605) (1983).

       “The four elements [of a] tort [cause of] action are a duty, a breach of that duty, causation and damages.” Traina Enterprises v. RaceTrac Petroleum, 241 Ga. App. 18 (525 SE2d 712) (1999); Nesmith v. Pierce, 226 Ga. App. 851, 852 (1) (487 SE2d 687) (1997).


text:
    A00A2134.
    WILLIAMS v. THE STATE.
    (543 SE2d 408)
   Eldridge, Judge.

A Columbia County jury convicted James Raphael Williams of rape (OCGA § 16-6-1), aggravated sodomy (OCGA § 16-6-2), and possession of a firearm during the commission of a crime (OCGA § 16-11-106). Defendant appeals contending the superior court erred in denying his motion for new trial grounded upon claims of evidentiary insufficiency and ineffectiveness of trial counsel. Finding no merit in defendant’s enumerations of error, we affirm. Held:

Viewed in the light most favorable to the jury’s verdict, the evidence shows that the victim was at home with her mother and father on the evening of January 10, 1998, when the defendant, her ex-boyfriend, arrived at the front door. Angry words passed between the two in the doorway, and as the victim attempted to terminate the conversation, the defendant grabbed her clothing and pulled her from the house, telling her at gunpoint she was going with him. The defendant forced the victim into the backseat of his car and got in with her. He then directed State’s witness Michael Ross to drive away, Ross having remained in the defendant’s vehicle after the two arrived at the victim’s residence. The defendant had Ross stop when they were safely beyond the victim’s house, got behind the wheel, and proceeded to Groveton. There the defendant dropped Ross off at his father’s trailer, then continued to his own, several trailers down. Once in his bedroom in the trailer, the defendant ordered the victim, again at gunpoint, to get undressed and go into the living room. In the interim, Ross walked the distance to defendant’s trailer and was seated in the living room when the victim got there. Naked, the victim took a seat on the living room couch. Thereafter, on being directed to do so by the defendant with the weapon beside him, she twice performed fellatio on the defendant and once on Ross. Similarly, the defendant forced her to submit to sexual intercourse while in the living room, two times with him and one time with Ross. This done, the defendant permitted the victim to return to the bedroom to get dressed, then went there himself, still armed, and told her “they were going to have sex again.” After forcing the victim to submit to sexual intercourse with him a third time, defendant and Ross took her home, dropping her five minutes from her house on foot. The victim summarized the defendant’s parting comments as, “I better call him at twelve o’clock, and I better not call the police because he say he know my family. If he don’t get me, he’ll get one of — somebody in my family.” The victim was crying as she rang her doorbell. Her mother asked the victim what happened, then called the police. Arrests followed.

1. The superior court did not err in denying the defendant’s motion for new trial grounded upon defendant’s claim the evidence was insufficient to support his convictions. The defendant points to aspects of the victim’s testimony as in conflict with prior statements she made at the rape crisis center adduced on cross-examination to impeach her and as in conflict with the testimony of State’s witness Ross. The jury resolved the conflict in the evidence and found against the defendant. “On appeal this Court determines evidence sufficiency. We do not weigh the evidence or determine witness credibility. Davis v. State, 225 Ga. App. 627 (1) (484 SE2d 655) (1997).” Elrod v. State, 238 Ga. App. 80, 81 (1) (517 SE2d 805) (1999). Further, “the success of an attempt to impeach a witness is always a jury question, as is the credibility of the witnesses.” (Citations and punctuation omitted.) Holiday v. State, 237 Ga. App. 490, 491 (515 SE2d 423) (1999) . We have reviewed the evidence in the light most favorable to the prosecution and conclude that a rational trier of fact could have found the defendant guilty beyond a reasonable doubt of the offenses charged. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. Neither did the superior court err in denying defendant’s motion for new trial upon defendant’s claim his trial attorney was ineffective because he: (a) failed to call the rape crisis center intake clerk or the examining physician to bolster his impeachment of the victim at trial upon her initial statements as to the charged offenses; and (b) failed to call character witnesses he requested. “To show ineffective assistance of counsel, a defendant must show that counsel’s performance was deficient and that the deficient performance prejudiced the defense.” Suggs v. State, 272 Ga. 85, 87 (4) (526 SE2d 347) (2000) , citing Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984).

Failing to call rape crisis center personnel as witnesses, even if deficient (and we do not so hold), was not ineffective since there is here no showing of prejudice, i.e., the record reflects that trial counsel vigorously impeached the victim upon her rape crisis center medical record, as pertinent. Williams v. State, 242 Ga. App. 1, 2-3 (528 SE2d 521) (2000); Holmes v. State, 205 Ga. App. 168, 170 (3) (421 SE2d 311) (1992) (failure to establish the performance prong or the prejudice prong of Strickland results in denial of Sixth Amendment claim).

Decided November 30, 2000.

Ellis R. Garnett, for appellant.

Daniel J. Craig, District Attorney, Charles R. Sheppard, Assistant District Attorney, for appellee.

There likewise is no support in the record for the ineffectiveness of trial counsel upon the claim he failed to call additional character witnesses. At the motion for new trial hearing, trial counsel explained that he called several character witnesses whose names the defendant gave. These were “people who. would support his character and would help impeach [the victim’s] testimony.” In further testifying, trial counsel acknowledged that he had not called “a couple of the character witnesses that [defendant] wanted to call[,]” having concluded that their testimony would have been cumulative and that the testimony one of them would have provided, an ex-girlfriend, risked giving the jury the impression that the “[defendant] was more promiscuous than they were already thinking.”

The decisions on which witnesses to call and all other strategies and tactical decisions are the exclusive province of the lawyer after consultation with his client. Austin v. Carter, 248 Ga. 775, 779 (2) (c) (285 SE2d 542) (1982). Whether an attorney’s trial tactics are reasonable is a question of law, not fact. Jefferson v. Zant, 263 Ga. 316, 318 (3) (a) (431 SE2d 110) (1993).

(Citations and punctuation omitted.) Dewberry v. State, 271 Ga. 624, 625 (2) (523 SE2d 26) (2000). In these circumstances, trial counsel’s decisions regarding the witnesses he decided to call were well reasoned and appropriate.

Judgment affirmed.

Blackburn, P. J., and Barnes, J., concur.

       The crimes occurred on or about January 10,1998. Defendant was indicted on January 28, 1998. Trial began on March 26, 1998, and on March 27, 1998, the jury returned guilty verdicts as to each count of the indictment. The superior court sentenced the defendant to concurrent ten-year sentences as to the rape and aggravated sodomy offenses and to a five-year sentence to be served consecutively on the possession of a firearm during the commission of the crimes charged. The superior court denied defendant’s motion for new trial on February 8, 2000. Defendant filed his notice of appeal on February 14, 2000, and the case v/as docketed in this Court on June 9, 2000.

       The grand jury indicted defendant and Ross as co-defendants upon rape and aggravated sodomy charges. At trial, Ross testified as a State’s witness pursuant to a negotiated plea agreement.

       At trial, the victim testified she was forced to perform fellatio and was the victim of vaginal intercourse against her will. The medical reports upon which trial counsel cross-examined the victim showed that she denied being forced to perform fellatio when interviewed at the rape crisis center.


author: Blackburn, Presiding Judge.

text:
    A00A2518.
    KITTLE v. CONAGRA POULTRY COMPANY.
    (543 SE2d 411)
   Blackburn, Presiding Judge.

James Kittle appeals the trial court’s orders which granted summary judgment to defendant ConAgra Poultry Company. Kittle filed the underlying complaint raising claims for breach of contract, violations of the Packers & Stockyards Act (PSA) (7 USC § 181), fraud and promissory estoppel. ConAgra’s motions for summary judgment were premised on judicial estoppel and the inapplicability of the PSA to the present action. Kittle also appeals the trial court’s order that granted ConAgra’s motion to compel arbitration. Because the trial court properly applied judicial estoppel to this action, the trial court’s order granting summary judgment to ConAgra is affirmed. As summary judgment was appropriate, Kittle’s remaining enumerations of error are moot.

1. Kittle contends that the trial court erred in granting ConAgra’s motion for summary judgment based upon judicial estoppel. Kittle further contends his claim against ConAgra did not accrue until after he had filed for Chapter 7 bankruptcy, so he had no obligation to list it as an asset and the bankruptcy trustee was made aware of the claim and abandoned it.

The standards applicable to motions for summary judgment are announced in Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991). When ruling on a motion for summary judgment, the opposing party should be given the benefit of all reasonable doubt, and the court should construe the evidence and all inferences and conclusions therefrom most favorably toward the party opposing the motion. Moore v. Goldome Credit Corp., 187 Ga. App. 594, 596 (370 SE2d 843) (1988). Further, this court conducts a de novo review of the law and the evidence. Desai v. Silver Dollar City, 229 Ga. App. 160, 163 (1) (493 SE2d 540) (1997).

Hunter v. Cabe Group.

In the present case, Kittle and ConAgra entered into contracts from 1990 to 1996, according to which Kittle would raise and care for breeder hens producing eggs in houses built to ConAgra’s specifications. ConAgra supplied the hens and roosters to Kittle, who provided proper housing and equipment for the production of hatching eggs. Pursuant to the contracts, Kittle was compensated according to the number of eggs produced by the breeder hens.

Prior to filing the underlying complaint, Kittle and his wife filed a voluntary Chapter 7 bankruptcy petition in the United States Bankruptcy Court of the Eastern District of Tennessee Southern Division on December 17, 1997. Schedule B, paragraph 20 of the bankruptcy petition required that the Kittles list and give an estimated value of all “contingent and unliquidated claims of every nature, including tax refunds, counterclaims of the debtor, and rights to setoff claims.” The Kittles checked “None,” and did not list the present action. Kittle received a discharge from the bankruptcy court on June 1, 1998.

Kittle filed the underlying complaint on June 30, 1998. In his complaint and amended complaint, Kittle asserted causes of action for breach of contract, violations of the PSA, fraud and promissory estoppel. Kittle alleged that in March 1997, ConAgra placed inferior birds with him. He further alleged that many of the birds were sick, but ConAgra failed to provide the proper amount of medication. The birds failed to lay the standard number of eggs, and he suffered a $35,000 decrease in income in 1997. In Kittle’s complaint, he alleged that ConAgra’s servicemen told him that he would be compensated for the “bad birds,” but that he only received a bonus of $3,600 at the end of the flock. Additionally, Kittle alleged that, in 1995, he was forced by ConAgra to make costly unnecessary upgrades to his facility. Kittle contended that as a result of the poor quality birds and unnecessary upgrades to his equipment, he was forced to go out of the chicken business and the bank foreclosed on his farm. Kittle asserts that his PSA claims arise out of ConAgra’s unfair, unjustly discriminatory or deceptive practices or devices which subjected him to unreasonable prejudice or disadvantage.

ConAgra filed a motion for summary judgment contending that Kittle was judicially estopped from bringing the underlying action because he was aware of his claims against ConAgra when he filed his bankruptcy petition and he failed to list them as assets of the estate or to amend such petition once filed. The trial court granted ConAgra’s motion.

The doctrine of judicial estoppel arises under federal law and precludes a party from asserting a position in one judicial proceeding which is inconsistent with a position successfully asserted by the party in an earlier proceeding. The essential function and justification of judicial estoppel are to prevent the use of intentional self-contradiction as a means of obtaining unfair advantage in a forum provided for suitors seeking justice. The primary purpose of the doctrine is not to protect the litigants, but to protect the integrity of the judiciary. The doctrine is directed against those who would attempt to manipulate the court system through the calculated assertion of divergent sworn positions in judicial proceedings and is designed to prevent parties from making a mockery of justice through inconsistent pleadings. Although application of the doctrine of judicial estoppel is severe,
whether to apply it depends entirely on the actions of the plaintiff.

(Citation and punctuation omitted.) Reagan v. Lynch.

(a) Kittle contends that he was not required to list his claims against ConAgra because they did not accrue until after he had filed for Chapter 7 bankruptcy.

The bankruptcy code is clear that when filing a Chapter 7 bankruptcy, unlike the filing requirements for Chapter 11 or Chapter 13, the debtor’s estate comprises only those property interests that exist as of the filing date of the bankruptcy petition. 11 USC § 541. See In re Fleet-, see also In re Bobroff In contrast, the debtor in a Chapter 11 or Chapter 13 bankruptcy has a duty to amend their petition to list after-acquired property. See Smalls v. Walker-; Wolfork v. Tackett.

The facts alleged in Kittle’s complaint forming the basis of his causes of action all occurred prior to the filing of the bankruptcy petition. In fact, as paragraph 7 of Kittle’s complaint recognizes, it is those actions which actually precipitated the filing of bankruptcy. Additionally, Kittle deposed that he was aware of his claims against ConAgra before he filed for bankruptcy and that he discussed them with his bankruptcy attorney.

Kittle contends that his claims did not accrue until he received his final paycheck on March 12, 1998. Kittle fails to recognize when his causes of action actually accrued, only considering whether he was adequately paid for ConAgra’s alleged breach of contract, violations of the PSA, fraud and promissory estoppel. According to the allegations in Kittle’s complaint, ConAgra’s actions were completed prior to the filing of bankruptcy. Final payment was still expected at the end of the contract, but Kittle contends that ConAgra breached the contract by placing inferior birds and failing to medicate them adequately when they got sick. Kittle also contends that ConAgra is responsible for damages due to its requirement in 1995 that Kittle upgrade his equipment. Additionally, to the extent that the PSA governs the transactions between ConAgra and Kittle, any violations thereof occurred prior to the filing of the Kittles’ bankruptcy petition. “Simultaneous with the breach! ] came a cause of action on the breach. This cause of action created a legal interest in which the [debtor was] free to take advantage. Thus, the cause of action should have been listed on the [debtor’s] schedules.” In re Winebrenner

(b) Kittle contends that he informed the bankruptcy trustee of his claims against ConAgra and that the trustee abandoned them. In support of his contention, Kittle presented the trial court with the affidavit of the bankruptcy trustee in charge of his Chapter 7 bankruptcy petition. The bankruptcy trustee averred that he was made aware of Kittle’s claims against ConAgra, and being familiar with the difficulty and expense of such claims, he chose to abandon them to Kittle.

In Reagan, supra, we applied judicial estoppel to the plaintiff’s claims after he failed to list such claims in his Chapter 7 bankruptcy petition, despite the fact that the plaintiff had informed the bankruptcy trustee of such claims as evidenced by the trustee’s affidavit in the record. We determined that “[i]nforming the bankruptcy trustee is not notice to the court or the creditors in the bankruptcy action.” Id. at 645.

Kittle contends that Tennessee’s local bankruptcy rules allow the bankruptcy trustee to abandon property of the estate without further notice to creditors unless a written request is filed with the bankruptcy court. This argument, however, assumes that the bankruptcy trustee has abandoned property of the estate of which the creditors are aware. Because Kittle’s claims against ConAgra were not listed in his bankruptcy petition, the creditors were not made aware of these claims.

As the trial court correctly held, bankruptcy law is clear that the debtor must list his assets and because the creditors were not informed of Kittle’s claims against ConAgra, the trustee could not abandon them properly. In Jeffrey v. Desmond the United States Court of Appeals for the First Circuit rejected the argument asserted by Kittle. Therein, the debtor claimed that because the trustee was aware of the debtor’s state court action when he filed a “no asset” report with the bankruptcy court, the trustee had abandoned the claim. The court determined that

[t]he law is abundantly clear that the burden is on the debtors to list the asset and/or amend their schedules, and that in order for property to be abandoned by operation of law pursuant to 11 USC § 554 (c), the debtor must formally schedule the property pursuant to 11 USC § 521 (1) before the close of the case.

Decided November 30, 2000

Waycaster, Morris, Johnson & Dean, Cynthia N. Johnson, for appellant.

Minor, Bell & Neal, William E Jourdain, Robert G. McCurry, for appellee.

Id. at 186. See also Vreugdenhill v. Navistar Intl. Transp. Corp. (claim of which trustee was aware but was not properly scheduled prior to the close of the case was not abandoned by operation of law). Further, any asset not properly scheduled remains property of the bankrupt estate, and the debtor loses all rights to enforce it in his own name. Jeffrey, supra at 186, fa. 3.

Georgia law is consistent with the decisions from the federal district courts. See Reagan, supra. Because Kittle failed to list his claims against ConAgra as assets in his bankruptcy petition and he failed to amend his bankruptcy petition or move the bankruptcy court to reopen his bankruptcy case to allow for an amendment, judicial estoppel precludes his litigation of the present claims.

2. Our decision in Division 1 renders Kittle’s remaining enumerations of error moot.

Judgment affirmed.

Eldridge and Barnes, JJ, concur.

        Hunter v. Cabe Group, 244 Ga. App. 162 (535 SE2d 248) (2000).

        Reagan v. Lynch, 241 Ga. App. 642, 643-644 (524 SE2d 510) (1999).

        In re Fleet, 53 Bankr. 833, 838 (E.D. Pa. 1985).

        In re Bobroff, 766 F2d 797, 803 (3rd Cir. 1985).

        Smalls v. Walker, 243 Ga. App. 453, 455 (1) (532 SE2d 420) (2000).

        Wolfork v. Tackett, 241 Ga. App. 633, 634 (526 SE2d 436) (1999).

        In re Winebrenner, 170 Bankr. 878, 883 (E.D. Va. 1994).

        Jeffrey v. Desmond, 70 F3d 183 (1st Cir. 1995).

         Vreugdenhill v. Navistar Intl. Transp. Corp., 950 F2d 524, 525-526 (8th Cir. 1991).


author: Ellington, Judge.

text:
    A00A1254.
    GOLD KIST, INC. v. WILSON et al.
    (542 SE2d 126)
   Ellington, Judge.

This is the fourth appearance of this case before this Court. The appellees, 15 farmers who were members of the Gold Kist, Inc. cooperative, brought suit after Gold Kist sold the egg processing facility which served them and assigned their production contracts to the purchaser. In Gold Kist v. Wilson, 213 Ga. App. 154 (444 SE2d 338) (1994) (“Wilson F), we reversed the grant of summary judgment in favor of the farmers. Following a bench trial and entry of judgment in favor of the farmers, Gold Kist again appealed; we remanded for entry of findings of fact and conclusions of law. Gold Kist v. Wilson, 220 Ga. App. 426, 428 (1) (469 SE2d 504) (1996) (“Wilson IF). After the trial court entered findings of fact and conclusions of law explaining the judgment in favor of the farmers, Gold Kist appealed a third time. We affirmed the judgment in part, reversed in part, and remanded the case with direction to enter a final judgment consistent with the opinion. Gold Kist v. Wilson, 227 Ga. App. 848 (490 SE2d 466) (1997) (“Wilson IIF). Gold East now appeals the new final judgment entered after remand, contending the trial court exceeded the scope of its authority on remand and committed new error.

The farmers framed their complaint for damages in terms of both breach of contract and tort.

Breach of Contract

When Gold Kist sold the processing plant to Hillandale Farms, Inc. in 1989, it paid the farmers their “notified equity” discounted to present value. Wilson III, 227 Ga. App. at 850. In Count 2, the farmers alleged that Gold Kist breached the implied covenant of good faith in their production contracts by refusing to pay the farmers the full amount of their notified equity when it unilaterally ceased to do business with them. In Count 8, the farmers also sought an accounting on the basis that Gold Kist had not disclosed the costs and earnings associated with the sale of the farmers’ eggs and pullets. The farmers alleged that, over the years of their contracts with Gold Kist, the amount disbursed to each farmer and the amount allocated on Gold Kist’s books as each farmer’s notified equity did not account for the full amount of the profits due each farmer.

In Count 3, the farmers alleged that Gold Kist breached its contracts with them by failing to pay the equity earned on the sale of their eggs and pullets in 1989 (the year Gold Kist sold the processing plant). The farmers further alleged that, because their production contracts were unassignable personal services contracts, they were entitled to recover from Gold Kist the amount they would have earned during the remainder of those contracts.

In Count 4, plaintiff James Crews asserted an individual breach of contract claim involving a contract he had with Gold Kist to produce eggs.

Tort

The farmers also sued Gold Kist for fraud or “negligent advice” based upon alleged misrepresentations by Gold Kist’s representatives. In Count 1, the farmers alleged that they borrowed and invested large sums in building or remodeling chicken houses and purchasing equipment in reliance on Gold Kist’s representation that it would operate the processing plant and do business with them long enough for the farmers to retire the debts secured by the chicken houses and equipment. They further alleged that the value of their chicken houses and equipment decreased substantially when Gold Kist sold the processing plant and assigned their contracts to Hillandale.

Count 7 alleged more generally that the parties were in a confidential relationship which required Gold Kist to act with the utmost good faith; that farmers sought and relied upon Gold Kist’s advice regarding all aspects of their chicken operations including financial matters; and that Gold Kist failed to protect their interests.

In Count 5, plaintiff F. L. Murray, Jr. asserted an individual negligence claim alleging Gold Kist negligently recommended that he purchase certain inappropriate and unnecessary equipment.

First Judgment

On July 14,1995, the trial court entered judgment in favor of the farmers in varying amounts totaling $2,351,000. In the findings of fact and conclusions of law entered on October 15, 1996, to explain the judgment, the trial court construed the parties’ agreements and concluded that the farmers were entitled to all of the profits from Gold Kist’s sale of their eggs and pullets (after allowable deductions for vaccines, disinfectants, and other supplies Gold Kist provided to the farmers). In other words, the trial court found Gold Kist’s “notified equity” practice was itself an ongoing breach of contract.

The trial court further found that even if Gold Kist had been entitled to retain some of the profits as “notified equity,” Gold Kist should have paid the full “face value” (undiscounted amount) of each farmer’s notified equity when it terminated its relationship with the farmers (Count 2). The trial court calculated the difference of each farmer’s notified equity and the discounted amount paid when Gold Kist sold the processing plant. The trial court then calculated the farmer’s share of the profits during the farmer’s contract period with Gold Kist, an amount which “included” but differed from the farmer’s unpaid notified equity.

With regard to Counts 3 and 4, the trial court concluded that the production contracts were unassignable personal services contracts. For farmers with contracts in effect at the time Gold Kist sold the plant, the trial court calculated as damages the amounts the farmers would have earned on those pending contracts (Count 3). The trial court also found in favor of James Crews on his individual breach of contract claim (Count 4). See Wilson II, 220 Ga. App. at 427; Wilson III, 227 Ga. App. at 852 (3). In calculating the final award for each farmer, the trial court added any Count 2 damages (past profits) and any Counts 3 and 4 damages (contracts in effect at the time of the sellout).

As to the negligent or fraudulent advice claims (Counts 1, 5, and 7), the trial court found the parties were in a confidential relationship. The trial court further found the farmers justifiably relied to their detriment on Gold Kist’s representations as to its future plans which “amounted to negligent advice.” The trial court awarded damages on the theories of fraud or negligent advice to only two farmers, Neil Hampton and H. J. Murray.

Appeal of First Judgment

On Gold East’s appeal of the first judgment, we found no merit in Gold Kist’s enumeration regarding the award in favor of Hampton and H. J. Murray on theories of fraud or negligent advice (Counts 1 and 7). Wilson III, 227 Ga. App. at 852-853 (4). Accordingly, that portion of the judgment was affirmed.

With regard to Gold Kist’s purported assignment of pending contracts to Hillandale (Count 3), we held “[t]he trial court did not err in concluding that the production contracts between Gold Kist and the plaintiffs were unassignable personal services contracts.” Wilson III, 227 Ga. App. at 852 (2). Accordingly, that portion of the judgment was also affirmed.

We disagreed, however, with the trial court’s construction of the parties’ agreements pertaining to profits (Counts 2 and 8). We held “that the trial court erred in concluding that plaintiffs were entitled to all of the profits from Gold East’s sale of eggs and pullets.” Wilson III, 227 Ga. App. at 851 (1). We further concluded “that the trial court erred in concluding that Gold Kist should have paid the full face amount of notified equity to plaintiffs.” Id. at 851-852 (1). We specifically held “[n]either conclusion is. authorized by the evidence presented at trial” and therefore reversed the judgment to the extent the judgment was predicated on those erroneous conclusions. Id. at 852 (1).

We also reversed with regard to the individual breach of contract claim of James Crews (Count 4). Wilson III, 227 Ga. App. at 852 (3).

We remanded with direction to enter final judgment consistent with our opinion.

Second Judgment

In its order acting on this Court’s direction on remand, the trial court stated that the original damages awards had made each plaintiff whole but that there were other bases of liability which each independently supported an award of the same damages. The trial court then “reaffirmed” its earlier awards based on three different theories. Gold Hist contends the trial court exceeded the scope of its authority on remand. We agree.

OCGA § 5-6-10 provides that after remittitur of an appealed case is returned to the trial court, “[t]he decision and direction [of the appellate court] shall be respected and carried into full effect in good faith by the court below.” Where a judgment is reversed and the case is remanded to the trial court with direction, “it is the duty of the trial court in good faith to carry into full effect the mandate of this court.” (Citations and punctuation omitted.) Garner v. State, 168 Ga. App. 523, 524 (310 SE2d 7) (1983). The rulings of our appellate courts are binding on the trial court in all subsequent proceedings in the case. Palm Restaurant of Ga. v. Prakas, 192 Ga. App. 74, 76 (383 SE2d 584) (1989).

Further, a trial court’s authority to modify or amend its own judgments is limited by time. “[A]fter the expiration of the term at which a decree was entered, it is out of the power of the court to modify and revise it in any matter of substance or in any matter affecting the merits.” (Citations and punctuation omitted.) Holbrook v. Gen. Elec. Capital Corp., 196 Ga. App. 382, 384 (1) (396 SE2d 253) (1990). Trial courts do not have the authority to modify their judgments out of time even when the modification awards relief that a litigant would otherwise have been entitled to receive. See Hughes v. Great Southern Midway, 265 Ga. 94, 96 (2) (454 SE2d 130) (1995) (prejudgment interest). Even where a trial court has the authority to amend an earlier judgment nunc pro tunc, that power is limited to correcting “inadvertent errors or omissions in the record to reflect the truth of what happened.” (Citation omitted.) Ga. Tile Distrib. v. Zumpano Enterprises, 205 Ga. App. 487, 492 (2) (422 SE2d 906) (1992). The trial court may not abuse that power by supplying “judicial omissions so as to include what a court might or should have decided, but did not actually so decide.” (Citations and punctuation omitted.) Id.

By making additional findings of fact and conclusions of law and entering judgment on a new calculation of damages, the trial court dramatically affected the merits of the case and failed to carry out the mandate of this Court. Holbrook v. Gen. Elec., 196 Ga. App. at 384; Palm Restaurant of Ga. v. Prakas, 192 Ga. App. at 76. We again reverse and remand this case for entry of final judgment consistent with our decision in Wilson III, 227 Ga. App. 848.4

Judgment reversed and case remanded with direction.

Andrews, P. J., and Ruffin, J., concur.

Decided November 3, 2000

Reconsideration denied December 1, 2000.

Alston & Bird, Jay D. Bennett, Richard R. Hays, Kenneth D. Steele, for appellant.

Gibson & Spivey, Douglas L. Gibson, for appellees.

       Gold Kist acted as the farmers’ agent in selling their eggs. Profits generated by the sale of eggs were proportionately assigned to each farmer’s equity account. Wilson III, 227 Ga. App. at 846, 849-851 (1). Under the parties’ agreement, Gold Kist paid a portion of that sum to each farmer immediately and retained the remainder as “notified equity” for a lengthy period. Id. Farmers who terminated their membership in the cooperative were entitled to receive the amount in their notified equity accounts discounted to present value. Id.

       The following farmers were awarded both damages for past profits and damages for pending contracts: James Crews, David Moody, Donald Morrison, F. L. Murray, Jr., Jimmy Thomas, Alfred Thomas, Renade Wilson, Linda Wilson as the administratrix of the estate of Melvin Wilson, and Winton Wilson. The following farmers were awarded damages only for their share of the past profits: Ned Hendrix, Loma Thomas, and Wilson Brothers. The following farmer was awarded damages only for contracts in effect at the time of the sellout: Kenny Crews.

       The trial court made no award to plaintiff F. L. Murray, Jr. on his individual negligence claim (Count 5).

         For purposes of clarification, we note that damages awarded for the breach of contracts pending at the time of the purported assignment, affirmed in Wilson III, 227 Ga. App. at 852 (2), constitute lost fixture profits and, as such, should be discounted to present value. Crosby v. Spencer, 207 Ga. App. 487, 488 (2) (428 SE2d 607) (1993). See 22 AmJur2d Damages, § 647, p. 709 (1988); Robert L. Dunn, Recovery of Damages for Lost Profits, Vol. 1, § 6.25, pp. 501-502 (5th ed. 1998). In the event the trial court failed to discount to present value the award of such profits (to Kenny Crews, David Moody, Donald Morrison, F. L. Murray, Jr., Jimmy Thomas, Alfred Thomas, Renade Wilson, Linda Wilson as the administratrix of the estate of Melvin Wilson, and Winton Wilson), the trial court should modify those awards on remand. Assuming the lost profits awards in paragraphs 15 and 16 of the July 14, 1995 order already reflect the discount, the correct awards are obtained by subtracting the portion of each farmer’s award (if any) awarded for past profits (reversed in Division 1 of Wilson III), and the breach of contract damages awarded to James Crews (reversed in Division 3 of Wilson III), and leaving the portion (if any) awarded for future profits (affirmed in Division 2 of Wilson III) or for negligent or fraudulent advice (paragraphs 17 and 18 of the July 14,1995 order, affirmed in Division 4 of Wilson III), as follows:
      James Crews 0.00
      Kenny Crews 151.000. 00
      Neil Hampton 237.000. 00
      Ned Hendrix 0.00
      David Moody 245,134.00
      Donald Morrison 133,975.31
      H. J. Murray 148.000. 00
      F. L. Murray, Jr. 45.500.00
      Jimmy Thomas 84.180.00
      Loma Thomas 0.00
      Alfred Thomas 34.000. 00
      Renade Wilson 98.000. 00
      Wilson Brothers 0.00
      Linda Wilson (as administratrix of the estate of Melvin Wilson) 61.000. 00
      Winton Wilson 61,000.00
      With regard to postjudgment interest, we conclude that the portions of the original judgment which were upheld in Wilson III have remained unchanged since the entry of the original judgment on July 14,1995. Accordingly, postjudgment interest should be calculated from that date. CRS Sirrine, Inc. v. Dravo Corp., 219 Ga. App. 301, 304 (2) (464 SE2d 897) (1995). Cf. Ga. Tile Distrib. v. Zumpano Enterprises, 205 Ga. App. at 489-490 (2) (trial court erred in calculating posljudgment interest from earlier order where damages were determined and awarded for the first time after remand).


author: Johnson, Chief Judge.

text:
    A00A1422.
    A00A1435.
    MITCHELL et al. v. JONES. REISSIGER et al. v. JONES.
    (541 SE2d 103)
   Johnson, Chief Judge.

In these cases we are asked to determine if the four-year statute of limitation in damage to realty actions or the six-year statute of limitation in breach of written contract actions governs a breach of contract claim for house damage caused by the use of synthetic stucco. We conclude that the six-year statute of limitation applies to such a contract claim. We therefore reverse the trial court’s summary judgment rulings that the homeowners’ breach of contract claims against the builder are barred by the four-year statute of limitation. However, we affirm the trial court’s summary judgment rulings that the homeowners’ tort and fraud claims for damage to realty are barred by the four-year statute of limitation.

The record shows that Bennie and Betty Mitchell and John and Kathy Reissiger contracted with Joseph Jones d/b/a Progressive Builders to purchase newly constructed homes built by Jones’ construction company. The Mitchells closed on their home on September 2, 1994. The Reissigers closed on their home on June 7, 1994. In 1999, the Mitchells and the Reissigers discovered that their homes had substantial wood rot under the exterior insulation and finishing system, also known as synthetic stucco.

On March 4, 1999, the Mitchells filed suit against Jones. On March 8, 1999, the Reissigers filed suit against Jones. Both suits asserted claims for negligence, breach of contract, negligent misrepresentation and fraud. Jones moved for summary judgment on the basis that the suits were barred by the four-year statute of limitation set forth in OCGA § 9-3-30 because all claims involved damage to property. The trial court granted the motions, finding that the four-year statute of limitation was applicable to all of the claims and that the records were devoid of evidence of fraud which would toll the limitation period.

The Mitchells and the Reissigers appeal the trial court’s orders, asserting the same enumerations of error. Because these cases involve the same issues and essentially the same facts, we have consolidated them on appeal.

1. The Mitchells and the Reissigers first contend that the trial court erred in applying the four-year statute of limitation to their contract claims. We agree.

Written contracts are governed by the six-year statute of limitation found in OCGA § 9-3-24. This statute states that “[a] 11 actions upon simple contracts in writing shall be brought within six years after the same become due and payable.” The period of limitation on a construction contract commences on the date the work was substantially complete. It is undisputed that the Mitchells and the Reissigers filed their actions within six years of the date their homes were substantially complete. Because the homeowners filed their actions within the applicable six-year statute of limitation governing simple contracts, summary judgment was not warranted as to their contract-based claims.

Jones argues that the four-year statute of limitation found in OCGA § 9-3-30 applies to all actions for damage to property. Having extensively reviewed the applicable case law, we conclude that the four-year statute of limitation in OCGA § 9-3-30 applies only to tort actions for damage to property. Actions arising out of contract do not fall within OCGA § 9-3-30’s purview. The foundation for both the Mitchells’ and the Reissigers’ contract claims is simply the failure of Jones to fulfill the contract with a home suitable for its intended purpose and use and constructed with quality workmanship and materials. That the Mitchells and the Reissigers have experienced consequential damages that may be described as “damage to property” does not change the fact that their claims are based on Jones’ contractual duty.

In addition, the fact that the cases involve contracts for the sale of new construction rather than contracts for construction is irrelevant. It is undisputed that Jones chose the materials to be used on the job, chose the contractors, supervised the construction on the job site, was responsible for following code requirements, had nondelegable duties as a general contractor and ultimately sold the house. Implied in every contract by a builder-seller is the implied duty that construction was performed in a fit and workmanlike manner. This contractual duty is breached “when the builder fails to exercise a reasonable degree of care, skill, and ability under similar conditions and like surrounding circumstances as is ordinarily employed by others in the same profession.” It is clear from the records in these cases that questions of material fact exist regarding whether Jones failed in this duty and whether such failure caused a breach of contract. We hold that the same six-year statute of limitation that applies to a contract for construction also applies to a contract for the sale of new construction by a professional builder-seller.

2. The Mitchells and the Reissigers next claim that they timely filed their tort causes of action because the causes of action could not accrue until they discovered the damage, and they did not discover any damage until 1999. They base their claims on OCGA § 9-3-30 (a), which states that actions for damage to realty must be brought within four years after the right of action accrues. However, prior to the recent amendment to OCGA § 9-3-30, it was well established that the “discovery rule” did not apply to damage to realty. Moreover, the Mitchells and the Reissigers concede that the recent amendment adding a “discovery rule” for actions such as the ones presented here does not apply retroactively.

Case law decided prior to the recent amendment to OCGA § 9-3-30 is clear: The discovery rule was confined to cases of bodily injury which developed over an extended period of time; an action under OCGA § 9-3-30 for damage to realty must have been brought within four years of substantial completion of the work. This rule applies notwithstanding the fact that the Mitchells and the Reissigers may have had no knowledge of any alleged defects until after the substantial completion of the house. When the Mitchells and the Reissigers discovered the damage is irrelevant under the former, applicable version of OCGA § 9-3-30. Because both homes were substantially completed in mid-1994, the four-year statute of limitation expired in mid-1998, and the Mitchells’ and the Reissigers’ tort claims are clearly barred under OCGA § 9-3-30.

The homeowners contend that their tort claims should not be barred because they timely filed them within the eight-year statute of repose pursuant to OCGA § 9-3-51 (a) (1). According to the Mitch-ells and the Reissigers, the statute of repose extends the four-year statute of limitation to eight years after substantial completion of an improvement to realty. However, OCGA § 9-3-53 states that nothing in the statute of repose article “shall extend the period of limitations prescribed by the law of this state for the bringing of any action or shall postpone the time as of which a cause of action accrues.” This Court has previously rejected the argument advanced by the homeowners: “It is clear from a reading of OCGA § 9-3-53 that the legislature never intended OCGA § 9-3-51 to establish a new eight year statute of limitation in place of the two, four and six years statutes that may be applicable depending on the cause of action alleged,” We have consistently held that the statute of repose does not extend the applicable statute of limitation, but merely provides the absolute limit within which any action could be brought under the appropriate statute of limitation. Thus,

[a]n action under OCGA § 9-3-30 for a construction defect for improvement to realty must be brought within four years of substantial completion of the work, because the right of action immediately vested for the defective work at such time, commencing the running of the statute of limitation.

The Mitchells’ and the Reissigers’ tort causes of action are governed by OCGA § 9-3-30 and were not timely filed.

3. The Mitchells and the Reissigers contend that summary judgment on their tort and fraud causes of action was precluded by evidence of fraudulent concealment and negligent misrepresentation so as to toll the four-year statute of limitation on damage to realty (OCGA § 9-3-30) and the four-year statute of limitation on fraud (OCGA § 9-3-96) until such time when the defects were discoverable. This argument is based upon the contention that Jones knew about the defects in synthetic stucco systems at the time he sold the house to the Mitchells and the Reissigers, yet withheld this information from the homeowners and represented that the homes were constructed with quality workmanship and materials. However, the Mitchells and the Reissigers failed to present any competent evidence rebutting Jones’ affidavit testimony that he did not know of any problems associated with the use of synthetic stucco.

To establish fraudulent concealment under OCGA § 9-3-96 sufficient to toll the statute of limitation, the homeowners must prove that (1) Jones committed actual fraud involving moral turpitude, (2) the fraud concealed the cause of action from the homeowners and (3) the homeowners exercised reasonable diligence to discover their cause of action despite their failure to do so within the applicable statute of limitation. Moreover, to toll the statute of limitation under OCGA § 9-3-96, the concealment of a cause of action must be by positive affirmative act, not by mere silence. Some trick or artifice must be employed to prevent inquiry or elude investigation or to mislead and hinder the party who has the cause of action from obtaining the information, and the acts relied on must be of an affirmative character and fraudulent. Here, the Mitchells and the Reissigers made no showing as to how Jones’ construction of the houses or actions in selling the houses to them involved an act of moral turpitude or by what artifice he concealed the allegedly faulty construction.

Where a purchaser claims passive concealment by the seller of defective realty,

the buyer must prove that the vendor’s concealment of the defect was an act of fraud and deceit, including evidence that the defect could not have been discovered by the buyer by the exercise of due diligence and that the seller was aware of the problems and did not disclose them.

To avert summary judgment, the Mitchells and the Reissigers could not rest on their pleadings but had to present some evidence that Jones concealed the cause of action or committed actual fraud. This they failed to do.

Decided October 24, 2000

Reconsideration denied December 1, 2000

Eugene C. Brooks TV, Christopher M. Kessinger, for appellants.

McCorkel, Pedigo & Johnson, David H. Johnson, Amy E. Edgy, for appellee.

Jones’ uncontroverted testimony was that he had no knowledge about any alleged defects with the use of synthetic stucco. The only evidence in the record submitted by the homeowners to support their allegations of fraudulent concealment consists of (1) a 1991 article addressing moisture and wood rot problems associated with synthetic stucco, (2) 1992 standards addressing the need for sealant joints to prevent moisture intrusion, (3) deposition testimony from the president of the stucco supply company stating that he distributed installation direction brochures for buyers of his product and (4) an expert affidavit documenting construction defects. There is no evidence rebutting Jones’ testimony that he did not know of any problems associated with the use of synthetic stucco. There is also no evidence that Jones affirmatively concealed any allegedly defective construction or that he hindered or prevented the homeowners from discovering any alleged defect. Although the damages suffered by the Mitchells and the Reissigers are not the type of damages that would be readily discernible by the purchaser, the homeowners failed to show any act or artifice by Jones to deter them from timely obtaining the true facts.

Even construing the facts in the records in a light most favorable to the homeowners, the homeowners have not met the requirements to support a claim for fraudulent concealment. The records contain no evidence of fraud or fraudulent concealment which would toll any of the applicable statutes of limitation, and the trial court correctly granted Jones’ motion for summary judgment with respect to the Mitchells’ and the Reissigers’ tort and fraud causes of action.

Judgments affirmed in part and reversed in part.

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

       OCGA § 9-3-30.

       OCGA § 9-3-24.

       See Banning Constr. Co. v. Lakeshore Plaza Enterprises, 240 Ga. 426, 428-429 (241 SE2d 184) (1977).

       OCGA § 9-3-24.

        Fort Oglethorpe Assoc. II v. Hails Constr. Co. &c., 196 Ga. App. 663 (1).(396 SE2d 585) (1990).

        See Pinnacle Constr. Co. v. Osborne, 218 Ga. App. 366, 367 (2) (460 SE2d 880) (1995) (a builder’s failure to satisfy the duty of good workmanship allows a suit for defects in the house based on the sales contract).

       See OCGA § 51-2-5; Hudgins v. Bacon, 171 Ga. App. 856 (321 SE2d 359) (1984).

        Hall v. Harris, 239 Ga. App. 812, 817 (4) (521 SE2d 638) (1999).

       (Citations omitted.) Id.

       The 2000 General Assembly apparently recognized the latency problems associated with synthetic stucco and, therefore, amended the limitation statute to establish a four-year discovery rule for actions brought for the recovery of damage to a dwelling caused by synthetic exterior siding. OCGA § 9-3-30 (b).

       See Corp. of Mercer Univ. v. Nat. Gypsum Co., 258 Ga. 365 (368 SE2d 732) (1988); Moore v. Meeks, 225 Ga. App. 287 (2) (483 SE2d 383) (1997).

       See OCGA § 9-3-30 (b) (2): “This subsection shall not revive any cause of action which was barred by former law before March 28, 2000.”

        Corp. of Mercer Univ., supra at 366 (1); Hanna v. McWilliams, 213 Ga. App. 648, 649-651 (2) (446 SE2d 741) (1994). Compare Travis Pruitt & Assoc. v. Bowling, 238 Ga. App. 225, 226 (1) (518 SE2d 453) (1999) (where the defect is in property owned by someone other than the plaintiff, a cause of action does not accrue until the plaintiff sustains damage).

       See Howard a McFarland, 237 Ga. App. 483, 486 (3) (a) (515 SE2d 629) (1999) (physical precedent only).

       (Citations and punctuation omitted.) Id. at 487; Armstrong v. Royal Lakes Assoc., 232 Ga. App. 643, 644-645 (1) (502 SE2d 758) (1998); Fort Oglethorpe Assoc., supra at 664-665 (3).

        Hall, supra at 818 (5); see Howard, supra; Armstrong, supra; Fort Oglethorpe Assoc., supra.

        Hall, supra.

       See Wilson v. Phillips, 230 Ga. App. 290 (495 SE2d 904) (1998).

        Howard, supra at 487; Wilson, supra.

       Id.; Moore, supra at 288.

       (Citations and punctuation omitted.) Wilson, supra at 291.

       Id.

       See id. at 291-292.

       See Moore, supra.


author: Pope, Presiding Judge. Mikell, Judge,

text:
    A00A0581.
    GILLIS et al. v. CITY OF WAYCROSS et al.
    (543 SE2d 423)
   Pope, Presiding Judge.

In November 1998, five residents of Ware County brought suit to prevent the City of Waycross from rezoning approximately 37 acres of land known as Winona Park or Scout Lake and conveying it at no cost to the Waycross-Ware County Development Authority (“WWDA”), which has plans to transfer the property at no cost to the Jones Company, a large Waycross-based corporation, for use as the site of their corporate offices. The defendants are the city of Way-cross, Ware County, the WWDA, and the Jones Company. After a three-day bench trial in June 1999, Superior Court Judge Joseph B. Newton ruled in favor of the defendants on all counts. The residents enumerate 17 errors.

The property owners allege that the trial judge erred in failing to refer to another judge their two separate motions to recuse or disqualify him.

Under Uniform Superior Court Rule (“USCR”) 25.3,

When a judge is presented with a motion to recuse, or disqualify, accompanied by an affidavit, the judge shall temporarily cease to act upon the merits of the matter and shall immediately determine the timeliness of the motion and the legal sufficiency of the affidavit, and make a determination, assuming any of the facts alleged, in the affidavit to be true, whether recusal would be warranted. If it is found that the motion is timely, the affidavit sufficient and that recusal would be authorized if some or all of the facts set forth in the affidavit are true, another judge shall be assigned to hear the motion to recuse.

When considering the issue of disqualification, both OCGA § 15-1-8 and Canon 3E of the Code of Judicial Conduct should be considered. Stephens v. Stephens, 249 Ga. 700, 701 (2) (292 SE2d 689) (1982); see also Hornsby v. Campbell, 267 Ga. 511, 514 (2) (480 SE2d 189) (1997).

We take this opportunity to overrule opinions that limit the grounds for disqualification of a judge to only those enumerated in OCGA § 15-1-8. From at least 1910, the grounds for disqualification were limited to those enumerated in the statute. See, e.g., Daniel v. Yow, 226 Ga. 544, 546 (2) (176 SE2d 67) (1970); Jones v. State, 219 Ga. 848, 849 (1) (136 SE2d 358) (1964); Elder v. Camp, 193 Ga. 320, 321 (1) (18 SE2d 622) (1942); Elliott v. Hipp, 134 Ga. 844, 848 (2) (68 SE 736) (1910). But in 1982, the Supreme Court made clear that Canon 3E (formerly 3C) of the Code of Judicial Conduct provides “a broader rule of disqualification” than that provided in the statute, and that both the statute and the canon provide grounds for recusal. Stephens, 249 Ga. at 701 (2); see also Hornsby, 267 Ga. at 514 (2). But since Stephens, several opinions of this court have continued to apply the prior rule. Therefore, to the extent that they follow the prior rule, the following opinions are hereby overruled: Bevil v. State, 220 Ga. App. 1, 3 (6) (467 SE2d 586) (1996); Johnson v. State, 208 Ga. App. 453, 454 (2) (430 SE2d 821) (1993); Brannen v. Prince, 204 Ga. App. 866, 868 (3) (421 SE2d 76) (1992); Mapp v. State, 204 Ga. App. 647, 649 (4) (420 SE2d 615) (1992). Baptiste v. State, 229 Ga. App. 691, 697 (1) (494 SE2d 530) (1997) need not be overruled. Although it quotes Johnson for the proposition that OCGA § 15-1-8 contains the exclusive and exhaustive grounds for recusal, it also expressly considered whether recusal was warranted under Canon 3E.

Applicable here is Canon 3E which states: “Judges shall disqualify themselves in any proceeding in which their impartiality might reasonably be questioned. . . .” The alleged bias of the judge must be:

of such a nature and intensity to prevent the defendant from obtaining a trial uninfluenced by the court’s prejudgment. To warrant disqualification of a trial judge the affidavit supporting the recusal motion must give fair support to the charge of a bent of mind that may prevent or impede impartiality of judgment.

(Citations and punctuation omitted.) Birt v. State, 256 Ga. 483, 486 (4) (350 SE2d 241) (1986). “[T]he alleged bias must stem from an extra-judicial source and result in an opinion on the merits on some basis other than what the judge learned from his participation in the case.” (Punctuation omitted.) Id. at 485 (4). The movant need not show any actual impropriety on the part of the trial court judge. “The fact that his impartiality ‘might reasonably be questioned’ suffices for his disqualification.” King v. State, 246 Ga. 386, 390 (7) (271 SE2d 630) (1980); see also Sears v. State, 262 Ga. 805 (1) (a) (426 SE2d 553) (1993). The determination is necessarily fact-bound, “requiring an examination of the nature and extent of any business, personal, social or political associations, and an exercise of judgment concerning just how close and how extensive (and how recent) these associations are or have been.” Id. at 806 (1) (b).

On March 3, 1999, the residents first moved to recuse Judge Newton. Judge Newton dismissed and denied the motion without assigning the matter to another judge. He found that the motion was not timely and that the affidavit did not establish “bias, prejudice, or systematic pattern of prejudicial conduct.”

It appears from the record that the motion was in fact timely under USCR 25.1. The supporting affidavit alleged that Judge Newton was the chairman of the Okefenokee Area Development Authority (“OADA”), an organization similar to the WWDA; that the OADA is sponsored by local governments and business interests for the purpose of promoting and developing industrial and economic growth in Ware and Pierce Counties; that Judge Newton had been appointed to the OADA by Ware County, a party to the litigation; that the OADA and the WWDA had recently jointly announced that a company owned by the Jones Company had agreed to purchase an industrial building located in an industrial park in Ware County (a different transaction from the one at issue in this case); and that a newspaper article reported that in connection with the announcement another board member of the OADA said,

The Jones Company has been doing good for a long time. As [Waycross] Mayor Odum said we do need to emphasize our existing industries and businesses, those corporate folks who have made a commitment to the Okefenokee area. We are committed to those who are committed to our cities and towns.

Fifteen days after the court denied the first motion, the residents filed a second motion to recuse Judge Newton. In this motion the residents alleged that new information had come to light regarding his impartiality. The accompanying affidavit alleged many of the same facts and added that the purpose of the OADA is to further economic development for Ware and Pierce Counties; that the OADA shares office space and personnel with the WWDA; that one current board member of the OADA, Pete Coley, served for three years on the WWDA; that it was Coley who in part initiated the proposal to use Scout Lake for the purpose of economic development; and that Judge Newton may in fact have attended a meeting where the transaction at issue was discussed — the meeting included representatives of the OADA and the WWDA and officials of the city of Waycross and Ware County.

Judge Newton denied the second motion on the ground that the affidavit and the accompanying deposition of Coley were not legally sufficient to support the motion.

We are convinced that under the standards set forth in the Code of Judicial Conduct and as explained by the Supreme Court, the affidavits raised a reasonable question about Judge Newton’s impartiality in the matter at issue. At a minimum the motion to recuse should have been assigned to another judge. Under the peculiar facts of this case, the judge was the chairman of what appears to be almost a sister organization to one of the defendants. He was appointed to that organization by another defendant, ostensibly to support its interests. That organization has as its purpose an interest that is fairly opposed to the interests of the residents and almost identical with the interests of the defendants. One member of the OADA allegedly made statements to the newspaper showing that the OADA is “committed” to companies who like the Jones Company are committed to our cities and towns. One can easily infer that the chairman of the organization is equally committed, i.e., partial to the interests of the OADA, the WWDA, Ware County, and the Jones Company. The affidavits allege fairly that members of the OADA have had some involvement with the proposed transaction at issue and that the judge himself may have attended a meeting on the topic. If true, these circumstances raise an appearance of impropriety, which is prohibited by the Code of Judicial Conduct (see Canon 2); they lead to the conclusion that Judge Newton’s impartiality might reasonably be questioned; and therefore they support recusal in this case.

Accordingly, we remand this case to the Superior Court of Ware County for disposition of the motion by a different judge. Birt v. State, 256 Ga. at 486 (4); State v. Fleming, 245 Ga. 700, 703 (1) (267 SE2d 207) (1980). In the event the motion is denied, the judgment entered on the jury verdict may be reentered and a new appeal taken. Central of Ga. R. v. Lightsey, 189 Ga. App. 44, 45 (1) (374 SE2d 787) (1988). In the event the motion is granted, an interlocutory appeal may be sought under OCGA § 5-6-34 (b). If the motion is granted, all proceedings that occurred after the filing of the first motion to recuse are invalid and of no effect. Gray v. Barlow, 241 Ga. 347, 348-349 (245 SE2d 299) (1978); Butler v. Biven Software, 222 Ga. App. 88, 91 (2) (473 SE2d 168) (1996) (physical precedent only). Therefore, none of the other enumerations, which concern actions taken by Judge Newton after the filing of the first motion to recuse, will be addressed. See Fleming, 245 Ga. at 704 (3).

Judgment reversed and remanded.

Johnson, C. J., Andrews, R J., Blackburn, P. J., Smith, P. J., Ruffin, Eldridge, Barnes, Miller, Ellington and Phipps, JJ, concur. Mikell, J., concurs specially.

Mikell, Judge,

concurring specially.

Although I fully concur in the result and judgment, I write separately to mention tbe constitutional dimension to the issue of judicial disqualification. Superior court judges in Georgia are elected to four-year terms by the voters of the judicial circuit in which each judge resides and serves. See Ga. Const. 1983, Art. VI, Sec. VII, Pars. I and II (d). By casting their votes, the citizens of a judicial circuit solemnly select a man or woman who will sit in judgment of matters which may be of vital concern to each inhabitant of the community. The peopie’s choice of their judge is not a matter lightly to set aside for subjective or insubstantial reasons, and we do not do so in this case.

One might argue that a judicial disqualification does not deny the voters their right to decide who will sit on the bench in most cases. It might be said that a disqualification merely removes a judge in one case and can be accomplished only on rare occasions. But the voters have selected a particular judge to preside over all cases within his or her jurisdiction. Judges are not replaceable at will. When the chief judge or the district administrative judge of a judicial circuit replaces a disqualified judge, he or she arguably usurps the right of the citizens to have the judge they voted into office to adjudicate the case. See Uniform Superior Court Rule 25.4.

It was established in Georgia law as early as 1801 that an elected judge could be removed on certain statutory grounds. See Cobb’s Digest of the Statute Laws of Georgia 460, Sec. 40 (1851), citing Ga. L. 1801. Therefore, the right of the citizens to elect their judges has long been subject to the possibility that the judge could be disqualified in a particular instance by a statutory procedure, brought on narrow, objective grounds. See OCGA § 15-1-8. But the addition in 1974 of more subjective grounds via the Code of Judicial Conduct significantly broadened the opportunities to disqualify the presiding judge. See generally Hornsby v. Campbell, 267 Ga. 571 (480 SE2d 189) (1997); Stephens v. Stephens, 249 Ga. 700 (292 SE2d 689) (1982).

To be sure, the Canons of Judicial Ethics, as contained in the Code of Judicial Conduct, are highly commendable. A strict adherence to them by every judge is essential to our integrity and to the public’s confidence in Georgia’s system of justice. But it must be recognized that they may, in rare instances, conflict significantly with the right of the citizens to choose who sits in judgment over them. The automatic provisions of USCR 25.3 do not recognize that conflict.

Nor do the rules take into account the delays occasioned in rural circuits by the filing of disqualification motions. In most multi-judge, urban judicial circuits, hearing motions to disqualify is rare. Judges usually recuse themselves voluntarily at the first suggestion of the appearance of impropriety. If such a motion must be heard and decided and a new judge substituted, these tasks can be accomplished in a multi-judge circuit in a matter of days. A motion to disqualify filed in a rural circuit, however, can delay an important trial for months when the allegations of the affidavit required by USCR 25.3 are sufficient, even if they are false or imaginary. As explained by former Supreme Court Chief Justice Harold G. Clarke, “[p]er se disqualifications are not only harsh, they most often lead to impractical results.” Stephens, supra at 704 (Clarke, J., dissenting).

The case at bar concerns rezoning, the disposition of public land, and a possible advantage to a for-profit corporation. The public policies underlying Georgia’s decision to elect its judges would not seem to be strongly implicated in this dispute. But the next motion to disqualify may be brought in a death penalty case, or a dispute involving school prayer, or perhaps even an election contest regarding presidential electors. In such controversial cases, the people’s choice of judge, along with his or her unique characteristics, should not be lightly discarded.

Decided December 1, 2000.

John M. Hatfield, for appellants.

Kopp & Conner, Neal L. Conner, Jr., Dillard, Bower & Crowley, Terry A. Dillard, Scott C. Crowley, Kenneth E. Futch, Jr., for appellees.