author: Judge Harold R. Banke.

text:
    A98A0504.
    LEE v. CSX TRANSPORTATION, INC.
    (503 SE2d 309)
   Judge Harold R. Banke.

Clifford Lee, Jr., sued CSX Transportation, Inc. (“CSX”) under the Federal Employers’ Liability Act (“FELA”) for a purported hearing loss allegedly sustained while employed by CSX and its predecessors. Enumerating two errors, Lee appeals from the summary judgment awarded to CSX.

The trial court granted CSX’s second motion for summary judgment because Lee failed to offer competent evidence in opposition thereto. The court refused to consider Lee’s unverified supplemental responses to CSX’s interrogatories and rejected Lee’s two expert “affidavits.” In finding that neither “affidavit” was lawful, the court noted that neither document contained a valid jurat indicating that the matters testified therein were sworn to in the presence of a person duly authorized to administer oaths and that neither document stated that either witness was competent to testify. In addition, these two “affidavits” were not accompanied by the audiogram to which each referred. Held:

1. The trial court did not err in finding that Lee’s supporting “affidavits” were legally insufficient. In the absence of a valid jurat, a writing purportedly in the form of an affidavit has no force and no validity. Harvey v. Kidney Center of Central Ga., 213 Ga. App. 319, 320 (444 SE2d 590) (1994). Creating a valid affidavit necessitates the presence of an officer, the affiant, the paper itself, and the administration of a proper oath. Harvey, 213 Ga. App. at 320. The affiant “ ‘must swear to it, and the fact of his swearing must be certified by a proper officer.’ ” D’Zesati v. Poole, 174 Ga. App. 142, 143 (329 SE2d 280) (1985).

Here, each document is signed “respectfully submitted,” but does not attest to having been sworn. Above the signature of the notary each writing says that “the Affiant personally appeared before me, a Notary Public, and acknowledged the foregoing instrument in the jurisdiction aforesaid.” A conclusory reference to a witness as an “affiant” and a mere “acknowledgment” do not constitute a valid jurat within the meaning of our law. Because the two documents were not “sworn to and subscribed before,” a proper witnessing official and do not affirmatively state that either witness took an oath, they are not valid affidavits. D’Zesati, 174 Ga. App. at 143.

Further, we note that neither “affidavit” stated that it was based on “personal knowledge” or attached sworn or certified copies of the documents to which each referred. Hailey v. Blalock, 209 Ga. App. 345, 347-348 (2) (433 SE2d 337) (1993). Nor did they clearly identify where these documents could be found in the record in order to sufficiently present them to the trial court. See id. Consequently, the “affidavits” lack probative value to create an issue of fact. McClure v. Clayton County Hosp. Auth., 176 Ga. App. 414, 417 (2) (336 SE2d 268) (1985).

2. The trial court did not err in determining that Lee lacked proof that CSX caused his alleged hearing loss. A defendant who will not bear the burden of proof at trial need not affirmatively disprove the non-movant’s case. Carlock v. Kmart Corp., 227 Ga. App. 356 (489 SE2d 99) (1997). On summary judgment, CSX could and did discharge its burden by pointing out by reference to the affidavits, depositions, and other documents in the record, the absence of evidence to support Lee’s prima facie case. See id.

In all FELA lawsuits, the plaintiff bears the burden of proving medical causation. See Bowles v. CSX Transp., 206 Ga. App. 6, 7-8 (2) (424 SE2d 313) (1992). To satisfy this burden, a plaintiff must provide expert medical testimony where the disposition of a medical question, as here, controls the resolution of the case. Lutz v. CSX Transp., 208 Ga. App. 894, 896 (432 SE2d 569) (1993).

The record shows that Lee failed to sustain that burden. Lee could not rely on his unsworn responses to interrogatories or on the “affidavits.” Unverified responses cannot be considered in opposition to summary judgment. See Los Angeles Tile Co. v. Chatham County Bd. &c., 209 Ga. App. 245, 247-248 (433 SE2d 82) (1993); Johnson v. Hames Contracting, 208 Ga. App. 664, 668 (4) (c) (431 SE2d 455) (1993). Nor could the two invalid “affidavits” save Lee’s case because they were tantamount to having filed no affidavits. Phoebe Putney Mem. Hosp. v. Skipper, 226 Ga. App. 585, 586 (487 SE2d 1) (1997). Lee’s naked assertion that CSX caused his hearing loss, without any probative medical evidence, could not withstand CSX’s motion for summary judgment. OCGA § 9-11-56 (c).

Decided June 19, 1998.

Edward S. Cook, for appellant.

Casey, Gilson & Williams, James E. Gilson, for appellee.

Judgment affirmed.

Johnson, P. J., and Smith, J., concur.

       Lee’s reliance on the definition in Black’s Law Dictionary (6th ed.) for “acknowledgment” as meaning “to admit, affirm, declare, testify, avow, confess, or own as genuine” is unpersuasive. The same resource defines “jurat” as “[t]he clause written at the foot of an affidavit, stating when, where, and before whom such affidavit was sworn.” Id.

       Although Lee asserted that he first noticed a hearing loss within three years of filing his complaint, Lee had no recollection of ever seeing a physician concerning any problems with his hearing during the nine years before that filing.


source: Caselaw Access Project

author: Smith, Judge.

license: Public Domain

text:
    A98A0256.
    STEPHENS v. THE STATE.
    (503 SE2d 311)
   Smith, Judge.

Henry Marvin Stephens and three codefendants were indicted by a Richmond County grand jury on charges of armed robbery and possession of a firearm during the commission of a felony. The incident giving rise to the charges occurred during an undercover drug sale arranged by the Richmond County Sheriff’s Department. At trial, the jury acquitted two codefendants and convicted Stephens and one codefendant. Stephens’s motion for new trial was denied, and he appeals. Finding no harmful error, we affirm.

1. While Stephens raises the general grounds, his argument on the sufficiency of the evidence is limited to the contention that the State failed to show the funds taken in the robbery were “the property of the Richmond County Board of Commissioners” as alleged in the indictment. Stephens incorrectly asserts that the only evidence in the record merely identified the funds as “official government funds” from the Sheriff’s office without stating their source as federal, state, or local government. Another witness clearly identified the money as “Richmond County’s.”

As a technical matter, the board of commissioners is not identical to the county itself. See Aetna Cas. &c. Co. v. Shuman, 237 Ga. 403, 405 (228 SE2d 809) (1976). For purposes of analysis here, we apply the rule that “[i]n an indictment for robbery, ownership of the property taken may be laid in the person having actual lawful possession of it, although he may be holding it merely as the agent of another; and it is not necessary to set forth in the indictment the fact that the person in whom the ownership is laid is holding it merely as agent of the real owner. . . . [O]ne charged with larceny will not be heard to raise nice and delicate questions as to the title of the article stolen.” (Citations and punctuation omitted.) Cline v. State, 153 Ga. App. 576, 577 (2) (266 SE2d 266) (1980). See also Abrams v. State, 229 Ga. App. 152, 154 (2) (493 SE2d 561) (1997). Accordingly, we find that a rational trier of fact could find from the evidence adduced at trial proof of Stephens’s guilt beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. In managing the logistics of closing argument, the trial court determined that the four defendants collectively would be allowed to open and conclude closing argument, but they would be allowed a total of only four arguments, two opening and two concluding, to be allotted as the defendants chose. As the State concedes in its brief, this was error. OCGA § 17-8-71; see generally Givens v. State, 264 Ga. 522, 523 (1) (448 SE2d 687) (1994) (multiple defendants, each of whom has not presented evidence, must all be allowed to open and conclude closing argument). While harm to the defendant from this error is presumed, “the presumption is not absolute and the error may be shown to be harmless.” McDuffie v. Jones, 248 Ga. 544, 547 (2) (283 SE2d 601) (1981).

The evidence in this case showed that Stephens had several telephone conversations with the deputy to arrange a meeting for the purchase of drugs. After the participants in the meeting negotiated terms for some time, one .of Stephens’s codefendants produced a pistol and announced a robbery. At the codefendant’s direction, Stephens took the deputy’s firearm from his waistband and pointed it at him. Stephens turned the pistol on two other officers as they entered the room, and he was shot. Another deputy also testified that Stephens exclaimed, “ “Why did you shoot me all these times? I wasn’t going to shoot anybody. I was just pointing the gun.’ ” No cocaine was found by the officers after the arrests, but a search of a cloth bag brought into the room by one of Stephens’s codefendants revealed, among other items, a roll of duct tape, rubber gloves, and a knit cap with holes cut in it.

The incident was recorded on audio and video tape. While the videotape ended abruptly before the officers entered the room, one of the officers who monitored the transaction from an adjoining room believed that the equipment was accidentally disconnected as they rushed to the aid of their fellow officer after realizing a robbery was taking place. An FBI expert in audio and video tapes testified that the tape had not been altered and that the sudden stoppage on the tape was consistent with its being stopped or power being removed from the machine. The audio and video tapes were played for the jury. Contrary to Stephens’s assertion at trial, the videotape clearly shows him removing the pistol from the officer’s waistband and pointing it at him.

Several days after the incident and after his release from the hospital, Stephens gave a lengthy and detailed statement to officers who interviewed him in the jail infirmary. In this 36-page statement, Stephens told the officers that “there was no drugs involved anyway, see,” because one of his codefendants planned to repay money he owed Stephens by means of robbing a drug dealer. They were “just taking his money for the simple fact that he felt that since he was a drug dealer if he took his money . . . who was he gonna tell.” Stephens agreed that before they “even went to the room, the plan was to rob a dope dealer.” Stephens stated that he provided the gun for the robbery. He brought it to his codefendant in the room, patted the deputy down, took his firearm, and was backing away when he was shot. He reiterated at another point that “the main plan was just basically to get the money” and that they had no drugs but planned “from the get go” to commit a robbery.

As in McDuffie, supra at 548, no correlation can be discerned between opening or concluding closing argument and conviction or acquittal. Two of Stephens’s codefendants argued before the State; one was acquitted and one convicted. Stephens and the third codefendant argued after the State; Stephens was convicted while his codefendant was acquitted. “This defendant was not denied the right to argue his case to the jury and in fact did so. He was merely prohibited from making the closing argument. The co-defendant who had the closing argument was also found guilty by the jury. In view of the evidence against the defendants, it is highly probable, if not a certainty, that the error did not contribute to the conviction. [Cit.] Thus, a new trial is not required by the trial court’s harmless error.” Id.

In view of the lack of correlation between the defendants’ position in closing argument and conviction or acquittal, as well as the overwhelming evidence implicating Stephens in the robbery, including video and audio tape of the incident and his own statement, we conclude that this is one of those relatively rare occasions when the trial court’s error was harmless. See also Hayes v. State, 268 Ga. 809, 813-814 (7) (493 SE2d 169) (1998); Stanley v. State, 195 Ga. App. 706, 708-709 (9) (394 SE2d 785) (1990).

3. In his final enumeration of error, Stephens contends the trial court erred in finding his recorded statement free and voluntary. At a Jackson-Denno hearing, Stephens testified that he was in pain and bleeding profusely at the time he gave the statement and did not remember much about the day he gave it. He testified that he was given medication three times a day at the hospital, although he did not know what the medication was. He stated that his medication was changed at least three times up until a month before trial.

At the time he gave the statement, Stephens had been released from the hospital to the jail infirmary, and all medical equipment such as catheters and IVs had been removed. The GBI agent who questioned Stephens at the jail testified that, at the beginning of the statement, he reviewed the standard GBI waiver of counsel form with Stephens. He played the tape recording of the statement for the trial court. The GBI agent testified that he did not correct Stephens’s statement, that he did not deny him any request, and that Stephens never requested an attorney. He acknowledged that he saw some blood on Stephens and also that Stephens made some contradictory statements and apparently was “a little confused.” But he also stated that Stephens did not appear to be incoherent and understood what he was doing, that he was aware of his surroundings, and that he knew he was being questioned regarding the incident. The trial court concluded that Stephens “may have had a selective memory, but he seemed to remember and know what he was doing, and the officer said he knew what he was doing. I’m going to let the statement go to the jury.”

“Factual and credibility determinations made by a trial judge after a suppression hearing are accepted by appellate courts unless clearly erroneous.” (Punctuation omitted.) Powell v. State, 252 Ga. 297, 298 (2) (313 SE2d 90) (1984) (statement held voluntary when defendant questioned while sedated in hospital after being shot in robbery attempt). See also Hood v. State, 157 Ga. App. 282, 283-284 (3) (277 SE2d 261) (1981) (defendant shot during bank robbery and questioned while on stretcher in hallway of hospital awaiting treatment). Here, Stephens was not questioned by officers until after his release from the hospital. He indicated that he understood his rights and never requested an attorney or a halt in the questioning. Compare Mincey v. Arizona, 437 U. S. 385, 398 (98 SC 2408, 57 LE2d 290) (1978), cited in Green v. State, 154 Ga. App. 295, 297 (1) (B) (267 SE2d 898) (1980) (statement involuntary when wounded defendant, interrogated in intensive care ward, repeatedly asked that interrogation stop and requested lawyer). The trial court heard testimony from both Stephens and the GBI agent and listened to the recorded statement itself. Under these circumstances, we cannot say that the trial court’s admission of Stephens’s statement was clearly erroneous.

Judgment affirmed.

Johnson, P. J, and Senior Appellate Judge Harold R. Banke concur.

Decided June 22, 1998.

Sam B. Sibley, Jr., for appellant.

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

       Stephens’s counsel moved for funds to hire a medical doctor to examine Stephens’s medical records and to testify as to the possible effects of medication, but that motion was denied. Stephens’s attorney did not introduce the records into evidence or otherwise show the type of medication administered to Stephens.


text:
    A98A0701.
    MOCK v. SMITH.
    (503 SE2d 319)
   Smith, Judge.

We granted this discretionary appeal to determine whether the trial court correctly ruled that Georgia had no jurisdiction to decide this action for modification of child custody. Upon review, we conclude that Georgia does have jurisdiction. We therefore reverse the trial court’s dismissal of the action.

The facts are not in dispute. Dennis Mock and Barbara Smith were formerly married, and they are the parents of two children, both of whom presently are over fourteen years of age. Mock and Smith were divorced in Georgia in 1984, and Smith was granted sole custody of the children. Both parents have remarried. Mock resides in Bainbridge, as he has for at least the past 27 years. Smith’s husband is in the U. S. Marine Corps. He was stationed in Yuma, Arizona for approximately three and one-half years prior to the commencement of this action. The children left Arizona to visit with their father, Mock, on June 14, 1997, for regularly scheduled summer visitation. On July 9, 1997, while the children were in Georgia, Mock filed this action. Attached to Mock’s petition were affidavits from both children stating that they were over the age of 14 and that they were electing to live with their father in Georgia. Both children also testified at the hearing that they wanted to live with their father. Smith was personally served in Georgia while she and her husband were in Bainbridge on leave visiting her mother. They were in the course of a transfer from Yuma, Arizona to their new station in Twenty-Nine Palms, California. Smith testified that when she was served she and her family no longer lived in Arizona, although she intended to go back there to pick up the children at the airport and take them to their next duty station, in California. But they had not yet moved to California and had no address there when this action was commenced. At the time of the hearing, the family had moved to California and had an address there.

OCGA § 19-9-43 sets forth several bases for a court of this state to assume jurisdiction for the purpose of making a child custody determination. It provides that a court may do so if: (1) this state is the “home state” of the child at the time the proceeding is commenced or if it had been the child’s home state within six months prior to the commencement of the action and the child is absent from this state because the child was removed or retained by a person claiming custody or for other reasons and one of the parents continues to live here; or (2) if it is in the child’s best interest that this state assume jurisdiction either because (a) the child and at least one parent have a significant connection with this state and substantial evidence is available here bearing on “the child’s present or future care, protection, training, and personal relationships”; (b) the child is physically present here and has been abandoned or an emergency exists; or (c) no other state would have jurisdiction. “Home state” is defined in OCGA § 19-9-42 (5) as “the state in which the child, immediately preceding the time involved, lived with his parents, a parent, or a person acting as a parent for at least six consecutive months.”

Georgia courts have generally shown a preference for litigating custody issues in a child’s “home state.” Williams v. Goss, 211 Ga. App. 195, 196 (438 SE2d 670) (1993). But as stated in Goss, “the appellate courts of this state also have recognized that in appropriate cases the state which made the initial custody determination may be the appropriate forum in which to relitigate subsequent custody matters even though that state is no longer the home state of the minor children. [Cits.] . . . This is referred to as ‘continuing jurisdiction’ under the PKPA [Parental Kidnapping Prevention Act]. See USCA § 1738A (d). However, under both the UCCJA and PKPA, a state must have jurisdiction under its own laws before it can modify a decree previously entered in that state.” Id. at 196-197. See also Garrett v. Garrett, 267 Ga. 356, 357 (477 SE2d 804) (1996).

Smith correctly points out that in Goss, this Court reversed the Georgia trial court’s assumption of jurisdiction under “significant connection” reasoning based upon the election of the child, who was over 14 years of age, to live with his Georgia resident father. But in Goss, the trial court based its jurisdiction solely on the child’s election to live with the father, reasoning that because the child had the right to elect to live with his father unless the father was an unfit parent, any custody litigation would necessarily focus upon the father’s fitness and evidence pertaining to that issue would be more available in Georgia. Goss, supra at 197. On appeal, our reversal was premised on the determination that a child’s election to live with a Georgia resident parent cannot form the sole basis for “significant connection” jurisdiction under the UCCJA. “Such ‘bootstrapping’ would not appear to be consistent with the overall spirit and purpose of the UCCJA, which seeks to assure that custody proceedings take place in the state with which the child and his family have the closest connections.” (Citations and punctuation omitted.) Id. at 197-198.

Decided June 22, 1998.

Mary L. Ward, for appellant.

Kirbo & Kendrick, Bruce W. Kirbo, for appellee.

In Goss, Tennessee was clearly the home state of the child and no reason existed that the issue of custody could not be litigated there. In this case, we need not decide whether Arizona is the children’s “home state,” as urged by Smith; even if we assume that Arizona is technically the children’s “home state” within the meaning of OCGA § 19-9-42 (5), it would be illogical and impractical to insist upon litigating this dispute in Arizona, where none of the parties presently resides. No other state meets the definition of “home state.” The family had not lived in California for six months at the time of the hearing. And although California presumably would be a practical forum for Smith, very little evidence concerning the children’s present or future existed there because at the time of the hearing, the children had never lived there.

In this case, the children and Mock have a “significant connection” with Georgia even apart from the children’s election to live with their father. They have lived here with their father every summer since 1986, Mock has lived here continuously, and the children have both maternal and paternal grandparents here, as well as other relatives and friends. “Substantial evidence” is available in Georgia bearing on the children’s past and future activities, relationships, and care. Given that the children were present in this state and were over 14, that an Arizona forum made no sense for any of the parties, and that no other state had jurisdiction, we conclude that the trial court erred in dismissing Mock’s petition on the ground that it lacked jurisdiction.

Judgment reversed.

Johnson, P. J, and Senior Appellate Judge - Harold R. Banke concur.

       In Wilson v. Gouse, 263 Ga. 887, 889 (441 SE2d 57) (1994), the Supreme Court held that the PKPA applies to all interstate child custody disputes regardless of whether a child has been kidnapped.


author: Eldridge, Judge.

text:
    A98A1226.
    CHANCELLOR et al. v. GATEWAY LINCOLN-MERCURY, INC. et al.
    (502 SE2d 799)
   Eldridge, Judge.

On November 29, 1993, Peggy Chancellor and Betty Mitchell, her mother, plaintiffs-appellants, entered into a written retail installment sales contract with Gateway Lincoln-Mercury, Inc. (“Gateway”), defendant-appellee, to purchase a used 1985 Honda Prelude. The written contract showed a cash price of $4,383.50, an unpaid cash balance of $3,983.50 after deducting the $400 cash down payment, and $4,343.39 financed. The amount financed consisted of $51.55 credit life insurance, $171.88 credit disability insurance, $16.50 license, title, and registration fees, $120 for Roadguard service, $359.89 for “charges and amount paid to others on your behalf,” and the balance of cash due as $3,983.50, totaling $4,343.39. The finance charge was shown as $1,384.69 at 27 percent annual percentage rate (“APR”) for 24 payments of $238.67, beginning on January 13, 1994. The total payments were shown as $5,728.08. “The total cost of your purchase on credit, including your downpayment of $400.00 was $6,128.08.”

Gateway provided to Mercury Finance Company of Georgia (“Mercury”), defendant-appellee, the buyer’s order and plaintiffs’ credit application for financing approval. In the buyer’s order, the plaintiffs agreed to purchase the car for $4,450, conditioned upon credit approval. Subsequent to the execution of the buyer’s order and prior to the execution of the contract, Gateway lowered the purchase price to $4,254.50. Robert Smith, Mercury’s agent, approved the creditworthiness of the plaintiffs and agreed to the assignment of the contract at a discounted amount, provided Gateway closed the sale. Smith notified Gateway of the approval, the amount to be financed, the APR, and terms of the contract, as well as the discount that Gateway must accept for Mercury to take an assignment of the contract. Gateway never increased the purchase price to recoup, in whole or in part, the discount fee.

The retail installment sales contract provided in its very terms an immediate and automatic assignment from Gateway to Mercury, as soon as plaintiffs executed the contract.

After the plaintiffs executed the contract and all other paperwork, the original contract was delivered by Gateway to Mercury. Mercury inspected the paperwork and determined that Gateway had properly filled out the contract. Mercury took the assignment and then paid Gateway the face amount of the contract, less the discount of $450 for the assignment of the retail installment sales contract. Mercury retained the $450 as part compensation for financing and administering the installment sale. Mercury never gave the discount, or any portion of the discount, back to the car dealer.

The discount was deducted from the face amount of the purchase contract, i.e., price and sale of intangible rights in the contract and the total cost of the purchase on credit. Gateway considered the $450 discount as the cost of doing business with Mercury. Gateway’s profit on the transaction was reduced by the discount of $450.

While Gateway is not in the business of loaning money or financing cars, it arranged for the financing in order to permit the plaintiffs to purchase the car and so Gateway could receive immediate payment. Gateway knew that there would be a discount charged by Mercury, but did not know the exact amount until Mercury approved the financing and informed Gateway of the amount prior to the execution of the contract. At no time did either Gateway or Mercury disclose to the plaintiffs that a discount of the face amount of the purchase price and intangible rights sold in the contract would be charged Gateway for the assignment by Mercury or, after the assignment, that the contract had been discounted $450.

1. Plaintiffs’ first enumeration of error is that the trial court erred on summary judgment in determining that the $450 discount fee is not a finance charge that must be disclosed. We do not agree.

This contract formation constituted a five-step transaction, leading to written and oral agreements: (1) the written buyer’s offer by plaintiffs, after the negotiation of the purchase terms for the used car and intangible rights with the seller, Gateway, contingent upon financing by Mercury; (2) an oral offer by Mercury to Gateway, in which Mercury agreed to finance the purchase of the used car and other intangible property rights on specified financing terms, if Gateway used the form retail installment contract which made Mercury the third party beneficiary and provided for automatic assignment to Mercury and if Gateway paid a discount fee of $450; (3) a counteroffer in writing made by Gateway to the plaintiffs in the form of the final retail installment sales contract with automatic assignment to Mercury; (4) plaintiffs’ acceptance by execution of the retail installment sales contract, and Gateway’s performance by delivery of the car and evidence of the intangible property to plaintiffs; and (5) acceptance and full performance by Gateway of Mercury’s oral offer to Gateway by delivering the unaltered and executed retail installment sales agreement to Mercury for discounted payment.

Thus, the nature and origin of the discount fee must be determined from an analysis of the evidence: was it a finance charge, coming out of the loan proceeds only; was it part of the purchase price of the used car and intangible property sold to the plaintiffs, coming from the seller’s proceeds of the sale; or was it part of the retail installment sales contract, i.e., sale of property, finance charges, and interest? Even if other lenders would receive similar treatment, such discount may well reflect only market forces at work to induce the purchase of the chattel paper. There was no evidence that on a cash purchase of the used car the plaintiffs would have received the same intangible rights for $450 less than the plaintiffs were obligated to pay under the agreement. The record shows that Gateway had already reduced the purchase price of the car $196 immediately prior to the contract execution, and there is no evidence that further price reduction was possible. Thus, after the defendants showed from the record the absence of damages, plaintiffs had the duty to come forward with evidence and failed to present any evidence to raise an issue of fact that they were damaged by the discount fee.

Therefore, if the $450 came out of the sales price for the used car and the intangible rights sold to the plaintiffs, then such discount fee was part of the purchase price and could not be a finance charge.

The discount fee represented either the reduction from the value of Gateway’s intangible property, i.e., the sales proceeds from the car and for the intangible property sold or the value of the entire retail installment sales contract, which reflected the fair market value of such intangible property when reduced to immediate cash value. OCGA §§ 44-1-3; 44-1-7.

When the plaintiffs executed the contract, Gateway acquired an inchoate right or chose in action to the sales price of $4,254.50, as well as finance charges and interest, totaling $5,728.08, which was an assignable property right and which Gateway immediately assigned to Mercury at a prearranged discount price. OCGA §§ 44-12-22; 44-12-23; 44-12-24; Evans v. Brown, 196 Ga. 634, 639 (27 SE2d 300) (1943); William Iselin & Co. v. Davis, 157 Ga. App. 739, 742 (278 SE2d 442) (1981). The “non-UCC law is clear that all choses in action arising upon contract, including accounts receivable, may be assigned so as to vest title and the right to sue on them in the assignee. E.g. Chattahoochee Holdings v. Marshall, 146 Ga. App. 658, 660 (1) (247 SE2d 167) (1978); Andrews v. Adams Drive, Ltd., 142 Ga. App. 32, 33 (3) (234 SE2d 835) (1977); see [OCGA § 44-12-22].” William Iselin & Co. v. Davis, supra at 742. Gateway had the absolute right to sell such uncollected chose in action for payment of installments by the plaintiffs for whatever price that such chose in action could bring in the fair market.

Gateway, acting on its own behalf and as agent for Mercury, negotiated the sale of such chattel paper prior to the execution of the contract by the plaintiffs, because Gateway and Mercury had concurrent interests in the transaction that also coincided with the plaintiffs’ interest in obtaining financing. See OCGA §§ 11-9-102; 11-9-103 (1) , (3), and (4); 11-9-105 (1) (b); 11-9-107 (b); Continental Oil Co. &c. v. Sutton, 126 Ga. App. 78, 79, n. 1 (189 SE2d 925) (1972).

“[I]f the creditor separately imposes a charge on the consumer to cover certain costs, the charge is a finance charge if it otherwise meets the definition. For example: — A discount imposed on a credit obligation when it is assigned by the seller-creditor is not a finance charge [unless] the discount is [ ] separately imposed on the consumer. (See [12 CFR] § 226.4 (a) (2).)” 12 CFR § 226.4 (a) (1) (iii) (A) (2) . In this case, under the contract, Gateway is the seller-creditor, because Gateway sold the property on credit under the retail installment sales contract to the plaintiffs, even though it simultaneously assigned the contract without recourse at a discount to Mercury under the Truth in Lending Act (“TILA”). See 12 CFR § 226.2 (a) (17) (i).

“The finance charge includes the following types of charges . . . (6) Charges imposed on a creditor by another person for purchasing or accepting a consumer’s obligation, if the consumer is required to pay the charges in cash, as an addition to the obligation, or as a deduction from the proceeds of the obligation.” 12 CFR § 226.4 (b).

Such example shows that the discount fee is not a finance charge, because the plaintiffs did not have to pay the discount fee in cash as an additional obligation nor was the discount deducted from the proceeds of the obligations. The plaintiffs were to receive nothing in the way of cash at the closing of the sale, only the property they purchased. As previously pointed out, plaintiffs’ financial liability was not increased by the discount fee; plaintiffs’ liability was fixed, whether the discount was paid or not. Thus, Gateway, as the creditor under the retail installment sales contract, paid the discount as . “[c]harges imposed on [it] by [Mercury] for purchasing or accepting [plaintiffs’] obligation,” and the plaintiffs neither paid cash to reimburse the discount to Gateway nor had such discount “deducted] from the proceeds of the obligation.” See 12 CFR § 226.4 (b) (6). The plaintiffs received a car and certain intangible property but no cash. The discount was imposed after the obligation became fixed, and Gateway received cash for sale of the loan obligation at a discount to its chose in action. The discount was not separately imposed by the creditor on the plaintiffs.

The seller-creditor, Gateway, paid a discount on the assignment of the credit obligation to Mercury, which discount was not imposed on the plaintiffs; thus, the discount fee was not a finance charge but was the cost of doing business. See 12 CFR § 226.4 (b) (6). “Charges absorbed by the creditor as a cost of doing business are not finance charges, even though the creditor may take such costs into consideration in determining the interest rate to be charged or the cash price of the property or services sold. However, if the creditor separately imposes a charge on the consumer to cover certain costs, the charge is a finance charge if it otherwise meets the definition.” 12 CFR § 226.4 (a) (2).

Under the facts of this case, prior to the financing, the cash price for the car and services sold had been fixed, and the discount fee was subsequently imposed without reference to the financing costs.

Gateway, prior to the execution of the contract with the plaintiffs, was free to strike the assignment clause to Mercury in the form contract, keep the chattel paper and security interest, or sell such chattel paper to another at whatever price that Gateway could negotiate. By having the plaintiffs execute the contract which provided automatic assignment to Mercury, Gateway accepted the oral offer and promise to pay from Mercury for the purchase of the chattel paper at a $450 discount. Because Gateway acted on its own behalf and on behalf of Mercury in the financing transaction and assignment of the chattel paper of the plaintiffs, such transaction, unknown to the plaintiffs, did not convert such $450 proceeds of the sale of tangible and intangible property rights into finance charges, either directly or indirectly. See 15 USCS §§ 1601, 1605, 1631, 1638; 12 CFR § 226.4 (a) and (b); Perino v. Mercury Finance Co., 912 FSupp. 313 (N.D. Ill. 1995); April v. Union Mtg. Co., 709 FSupp. 809, 813-814 (N.D. Ill. 1989). The trial court did not err in finding that the discount fee was not a finance charge but was a discount deducted from the sale of intangible property, i.e., the chattel paper.

2. The plaintiffs’ second enumeration of error is that the trial court erred in finding as a matter of law on summary judgment that the Fair Business Practices Act (“FBPA”) did not apply, because the transaction was “essentially private.” We do not agree.

The discount was part of a private transaction between Gateway and Mercury, where Gateway paid Mercury a discount to take the assignment of the chattel paper and to pay Gateway cash. There is no evidence, that, absent such transaction, the plaintiffs could have purchased or financed for $450 less. Therefore, such transaction between the defendants was not a consumer transaction and had no causal effect on the plaintiffs.

The purpose of the Georgia FBPA is to protect consumers against that limited class in conduct of consumer transactions and consumer acts or practices in trade or commerce which involve “unfair and deceptive practices” within the consumer marketplace. See OCGA § 10-1-391 (a); Eason Publications v. Nationsbank of Ga., 217 Ga. App. 726, 729-730 (2) (458 SE2d 899) (1995); Larson v. Tandy Corp., 187 Ga. App. 893, 896 (4) (371 SE2d 663) (1988); Zeeman v. Black, 156 Ga. App. 82, 83-85 (273 SE2d 910) (1980); Standish v. Hub Motor Co., 149 Ga. App. 365, 366 (254 SE2d 416) (1979).

In determining the applicability of the FBPA, “two factors are determinative: (a) the medium through which the act or practice is introduced into the stream of commerce;'and (b) the market on which the act or practice is reasonably intended to impact. It is only when the application of both of those factors indicates that the act or practice occurred within the context of the consumer marketplace that the fairness or deceptiveness of the act or practice need be examined. This is so because an act or practice which is outside that context, no matter how unfair or deceptive, is not directly regulated by the FBPA.” Benchmark Carpet Mills v. Fiber Indus.) 168 Ga. App. 932, 934 (311 SE2d 216) (1983); see also Larson v. Tandy Corp., supra at 896; Zeeman v. Black, supra at 85; State of Ga. v. Meredith Chevrolet, 145 Ga. App. 8, 12 (244 SE2d 15) (1978).

While both Gateway and Mercury are in business in the marketplace, no public advertisement or misrepresentations regarding a discount fee or the absence of a discount fee were made for the plaintiffs to rely upon to their detriment. The failure to disclose the discount fee, which did not affect either the cost of sale or financing, did not impact any consumer market, and was not introduced into the stream of commerce. There must be both causation and injury. Zeeman v. Black, supra at 86-87; State of Ga. v. Meredith Chevrolet, supra at 11-14.

Any essentially private transaction falls outside the protection of the FBPA, because the FBPA seeks to prohibit public conduct in the market that is unfair or deceptive, that has actual or potential harm to the consumer public, and that encourages consumer transactions as a consequence of such prohibited conduct. Medley v. Boomershine Pontiac-GMC Truck, 214 Ga. App. 795, 796 (2) (449 SE2d 128) (1994); Condon v. Kunse, 208 Ga. App. 856, 859 (5) (432 SE2d 266) (1993); Rivergate Corp. v. McIntosh, 205 Ga. App. 189, 192 (421 SE2d 737) (1992); Borden v. Pope Jeep-Eagle, 200 Ga. App. 176, 178 (1) (407 SE2d 128) (1991); Waller v. Scheer, 175 Ga. App. 1, 4 (1) (332 SE2d 293) (1985); Zeeman v. Black, supra at 83.

Absent a showing of actual or potential harm to the plaintiffs, as consumers, by the practice of the discount to Mercury, there is no standing to bring an action under the Act on the basis of nondisclosure. Zeeman v. Black, supra at 84. The FBPA does not “provide an additional remedy for private wrongs which do not and could not affect the consuming public generally.” Id. at 82-83; Larson v. Tandy Corp., supra at 896. Further, plaintiffs were not induced to enter into a consumer transaction as a consequence of the defendants’ acts or non-disclosure; the plaintiffs already had agreed to purchase the used vehicle and other intangible rights prior to the discount being negotiated between the defendants outside the plaintiffs’ knowledge.

“ ‘Consumer transactions’ means the sale, purchase, lease, or rental of goods, services, or property, real or personal, primarily for personal, family, or household purposes.” OCGA § 10-1-392 (a) (3). “ ‘Consumer acts or practices’ means acts or practices intended to encourage consumer transactions.” OCGA § 10-1-392 (a) (2.1). The giving of a discount by Gateway to induce Mercury to assume the loan did not constitute “unfair or deceptive acts or practices in the conduct of consumer transactions,” because the plaintiffs lacked knowledge of the discount, the discount did not affect the plaintiffs, the discount was a private transaction, and the discount was not part of the consumer market. See OCGA § 10-1-393 (a); Zeeman v. Black, supra.

The General Assembly intended that the Georgia FBPA have a restricted application only to the unregulated consumer marketplace and that FBPA not apply in regulated areas of activity, because regulatory agencies provide protection or the ability to protect against the known evils in the area of the agency’s expertise. OCGA § 10-1-396 (1) provides that the FBPA shall not “apply to . . . [ajctions or transactions specifically authorized under laws administered by or rules and regulations promulgated by any regulatory agency of this state or the United States.” TILA provides for federal preemption of state laws which “require[ ] a creditor to make disclosures or take actions that contradict the requirement of the federal law.” 15 USCS § 1610; 12 CFR § 226.28 (a) (1). TILA provides for the determination, calculation, and disclosure of finance charges. The Federal Reserve Board promulgated Regulation Z that regulates finance charges and disclosure by lenders. See 12 CFR §§ 226.4 and 226.5. Thus, this area of finance charges, disclosure, and truth in lending falls outside the FBPA, except where expressly covered. OCGA § 10-1-396 (1).

3. The plaintiffs’ third enumeration of error is that the trial court erred in granting summary judgment as to the Used Motor Vehicle Dealers & Used Motor Vehicle Parts Dealers Act (“Act”) which, as a remedial act, should be applied retrospectively. We do not agree.

The Act is a licensing and regulatory act applicable to dealers in used vehicles and used vehicle parts and gives no cause of action to the plaintiffs for relief against either defendant. OCGA § 43-47-1 et seq.

Under the definition section, Gateway, as a franchised motor vehicle dealer, is expressly excluded from coverage by the Act; while Mercury could come under “[financial institution,” it would be excluded from coverage in this case, because Gateway does not come under the Act. OCGA § 43-47-2 (17) (B); see generally Ga. Franchise Practices Comm. v. Massey-Ferguson, Inc., 244 Ga. 800, 802-803 (5) (262 SE2d 106) (1979); Toirkens v. Willett Toyota, 192 Ga. App. 109, 110 (1) (384 SE2d 218) (1989). Since the Act gives no relief to the plaintiffs in court and the defendants do not come within the Act, then the trial court did not err in granting summary judgment to both defendants.

4. The plaintiffs’ final enumeration of error is that the trial court erred in granting summary judgment on Count 3, fraud and deceit.

Plaintiffs give no reference to the record, cite no authority, and make no argument, except to reference the argument and citation of authority in their first enumeration of error. Therefore, under Court of Appeals Rule 27 (c) (2), this Court deems said claim of error abandoned. Maner v. State, 221 Ga. App. 826, 830 (4) (472 SE2d 716) (1996); Redwing Carriers v. Knight, 143 Ga. App. 668, 676 (11) (239 SE2d 686) (1977); Haskins v. Jones, 142 Ga. App. 153 (1) (235 SE2d 630) (1977).

Decided June 22, 1998.

Barnes, Browning, Tanksley & Casurella, Roy E. Barnes, Michael K. Jablonski, John R. Bevis, Neal H. Howard, for appellants.

Denney, Pease, Allison & Kirk, Ray L. Allison, Page, Scrantom, Sprouse, Tucker & Ford, W. G. Scrantom, Jr., George G. Boyd, Jr., for appellees.

Judgment affirmed.

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


text:
    A98A1291.
    CITY OF DULUTH v. RIVERBROOKE PROPERTIES, INC. et al.
    (502 SE2d 806)
   Eldridge, Judge.

This case involves an action in equity seeking a mandatory injunction brought by the City of Duluth (“the City”) against defendants Riverbrooke Properties, Inc. (“Riverbrooke”), owner and seller, and Everett Major (“Major”), the officer, stockholder, and developer, in order to enjoin the defendants from continued violation of the city’s developmental regulations and require them to file the “as-built” survey and certification for the Riverbrooke Subdivision’s 15-acre lake. The complex facts at issue are as follows:

In early 1991, Major and Riverbrooke, appellees-defendants, began development of a subdivision which was annexed into the corporate limits of the City of Duluth, appellant-plaintiff. The subdivision had five hundred ninety-nine lots; the subdivision was to be developed in five phases with thirteen separate segments, because there were three different price range segments built simultaneously at each phase.

On February 22, 1991, the original development plans for the entire subdivision with all five phases and the three segments in each phase as one development plan, were filed with the City of Duluth, and were approved under the 1971 Development Regulations. Footnote number 29 of the initial construction plans filed for Riverbrooke stated: “Provide detention pond record drawings (as-built) with the submittal of the final plat or before certificate of occupancy is issued. Record drawings shall include topo of pond verifying volume, outlet structure detail, and hydrology study on as-built data.” Footnote 29 referred to the three detention ponds constructed in The Villas, Summit phase V, and The Plantation phase V; Footnote 29 did not refer to the lake to be built as a detention facility. The purpose of a detention facility, under the regulations and nuisance law, is to regulate the volume and rate that the discharge of surface water run-off is allowed to occur so that it will not be at a rate, point of concentration, or volume greater than that prior to development.

On January 13, 1992, the City adopted new and stricter development regulations (“1992 Regulations”). Section 8.2.8 of the 1992 Regulations mandated for the first time: “Detention Facility Engineer’s Certification and Record Drawings. A certified record survey of each detention facility shall be prepared by a Georgia Registered Land Surveyor. A certified record drawing of the facility shall be prepared based upon this survey; and, based upon the parameters established on the record drawing, an addendum to the Storm Water Management Report shall be prepared which demonstrates that the facility, as constructed, complies with the requirements of these Regulations. The amended Storm Water Management Report shall be certified by a Georgia Registered Professional Engineer.” Neither the 1992 Regulations nor the 1971 Regulations defined the term “detention facility” or required that a lake or pond automatically be treated as a detention facility, because the lake received surface water run-off, which incidentally was detained. Article 14 of the development regulations stated that the regulations became effective immediately and applied to any land disturbance permit after the effective date. It also provided a “grandfathered” exclusion to “[a]ny subdivision or other project for which a valid and complete application for a Development Permit shall have been received prior to the effective date of these Regulations.” See Section 14.1.2. These new regulations excluded Riverbrooke Subdivision because, under the 1971 Regulations, the City had not issued Riverbrooke “a valid and complete application for a Development Permit.” Under the 1971 Regulations, such permit was not issued until the completion of the subdivision and the occupancy permit was issued.

The approved preliminary development plans contained a 15-acre lake in a swampy area of flood plain, where pine beetles had killed the trees, leaving it unsightly. The City did not want a lake and did not want any responsibility or liability for the lake. The lake was to serve as an amenity for recreational use and to improve the appearance and as an incidental detention pond for surface water run-off and sedimentation of construction mud to protect the Chattahoochee River for water quality control. The water discharged from the lake drained through a state-of-the-art siphon system. The siphon system drained water from the bottom of the lake instead of the top through a stand pipe in order to allow sedimentation to occur prior to the discharge of the water, which would prevent flooding up to the 100-year flood plain line. The design and construction of the lake cost $300,000. The defendants did not build the lake as a detention facility within the meaning of the regulations. If the lake had not been constructed, then the flood plain where the lake was built would have been sufficient to receive any surface water run-off without detention. The 1971 Regulations did not require the construction of the lake as a detention facility. The lake was completed in July 1991. The defendants provided the City “as-built” drawings of the dam. The director for the City had been closely involved in the planning and design of the lake.

In May 1992, Major deeded the lake, the clubhouse, and the surrounding recreational lands to the homeowner’s association of Riverbrooke Subdivision.

During the period from 1992 into 1995, the City approved the final subdivision plats for the five phases done in thirteen planned segments of the Riverbrooke Subdivision. Several of the final subdivision plats approved by the City showed the lake as a boundary. During the construction of Riverbrooke, the City had five different Directors of Planning and Development, who each had responsibility for approval of subdivision construction in the City and who had been familiar with all phases of the development. Between January 1 and September 31, 1992, the City issued to the defendants 151 building permits without raising any issue about the lake being used as a detention facility. By letter of December 30, 1992, the City certified that road improvements and drainage structures in Phases I, II, and III of The Summit at Riverbrooke had been constructed to City standards for the purpose of the performance bond.

On March 13, 1995, the City of Duluth approved the final plat of the completed Riverbrooke Subdivision submitted by the defendants and issued certificates of occupancy for the completed residential units. No “as-built” survey and certification of the lake was filed by the defendants pursuant to Footnote 29; however, the City approved the plans and occupancy permits nonetheless.

The City began receiving complaints in 1994 from residents of the Riverbrooke Subdivision who lived near the lake that water was backing up into the culvert behind Clearbrooke Way in which a drainage ditch carried surface water run-off into the lake. The City engineers investigated the situation and decided that the culvert under the road, through which water drained to the lake, was undersized and would not permit the free flow of drainage surface water run-off without backing up. The City’s then Director of Planning and Development issued a proposed executive order mandating that Major correct the problem at his expense by installing a second culvert under the City’s street. The City could not get Major to voluntarily fix what they saw as the problem in the way they wanted the problem corrected. Major refused, because Clearbrooke Way had been previously accepted by the City in 1991 as a City street, satisfying the City standards; thus, the performance bond had been released by the City.

The City’s investigation caused it to decide that no “as-built” survey and certification for the lake as a detention facility had ever been filed with the City as part of any subdivision plats under the 1992 Regulations. This was a way to force Major to correct the problem to the satisfaction of the City’s engineers, because the defendants would have to obtain the approval of such “as-built” survey and certification from the City. On June 14, 1995, the City’s Director of Planning and Development demanded in writing that Major provide the City with an “as-built” certification for each of Phase I’s detention facilities in compliance with the development regulations, section 8.2.8, and Footnote 29 from the initial construction plans.

Major refused to provide an “as-built” drawing and certification for the lake, because: (1) such action would require him to trespass on the lake front lots to do the survey; (2) the lake was not legally a detention facility; and (3) the regulations did not require this. The defendants took the position that they did not have to furnish the City, upon completion of the subdivision, with an “as-built” survey of the lake, because they had done so during construction. The defendants contended that such requirements had been satisfied prior to the recording of the plat.

In November 1995, the City brought an action in equity in the Superior Court of Gwinnett County to enjoin the defendants from continued violation of the City of Duluth’s development regulations and to require the defendants to provide the City with an “as-built” drawing and certification for the lake. The defendants answered, denying that they were in violation of the City of Duluth development regulations, and counterclaimed, seeking a declaratory judgment that certification of the lake was not required and seeking damages. The trial court bifurcated the issues and tried the injunctive relief and declaratory judgment issues at a bench trial. On November 6,1997, the trial court entered a judgment denying the City’s request for injunctive relief and granted the defendants a declaratory judgment adverse to the City. The City filed its notice of appeal.

1. Plaintiff’s first enumeration of error is that the trial court erred in its determination that the 1971 Subdivision Regulations for the City of Duluth applied to the construction of the lake in Riverbrooke Subdivision. We do not agree.

The City of Duluth contended that the 1992 Regulations grandfathered only completed subdivisions so that Riverbrooke Subdivision, which had been commenced under the 1971 Regulations, now was subject to the new regulations. The City contends that this is so because, on the adoption date of January 13, 1992, Riverbrooke Subdivision did not occupy the status of “[a]ny subdivision or other project for which a valid and complete application for a Development Permit shall have been received prior to the effective date of these Regulations.” See Section 14.1.2. However, the City’s contentions ignore the fact that the City had given preliminary approval to the entire Riverbrooke Subdivision in 1991 under the 1971 Regulations, prior to the adoption of the 1992 Regulations on January 13, 1992. It appears that the 1992 Regulations were written to expressly exclude from “grandfathering” any development in progress, i.e., Riverbrooke Subdivision, because the “grandfather” clause excluded any development under the 1971 Regulations that did not have a final permit of completion, which was only issued when the subdivision was finished.

A governmental entity cannot make laws and regulations retroactive where a person has acquired a vested property interest. The City argues that Riverbrooke Subdivision was developed in 13 separate and distinct phases and most of such phases occurred after January 13, 1992. However, there were actually only five phases that had two or three lot price range segments within each phase: Phase I Riverbrooke — The Plantations, The Summit, and Lake Villas (7/18/ 91-8/29/91); Phase II Riverbrooke — The Plantations (8/29/91), Lake Villas (2/18/92), and The Summit (5/19/92); Phase III Riverbrooke — The Summit (9/11/92), and The Plantations (9/11/92); Phase IV Riverbrooke — The Summit (7/7/93), and The Plantations (7/7/93); and Phase V Riverbrooke — The Summit (6/13/94), and The Plantations (3/13/95). The only issue of non-compliance involves the lake, which was built under Phase I. Phase I was approved July 18, 1991; the land-disturbance permit for Phase I was issued February 26, 1991; and Phase I was completed or in progress when the new regulations were implemented. The entire subdivision had an integrated development plan which was approved by the City prior to its commencement and prior to the adoption of the 1992 Regulations.

The defendants allowed the Riverbrooke Subdivision to be annexed into the City of Duluth at the urging of the City officials and Major and Riverbrooke willingly incurred a higher ad valorem burden with the understanding and expectation that the development would be under the 1971 Regulations. All of the engineering and development costs were based upon the 1971 Regulations. Such expectation, in submitting the entire future subdivision development in phases, was based upon the 1971 Regulations in 1991. The annexation of the Riverbrooke Subdivision and the 1991 approved developmental plans constituted a substantial change of position and an expenditure in reliance upon the existing regulations, so that the defendants acquired a vested property right. See WMM Properties v. Cobb County, 255 Ga. 436, 438 (1) (c) (339 SE2d 252) (1986); DeKalb County v. Chapel Hill, 232 Ga. 238 (205 SE2d 864) (1974).

“A landowner has a right to develop the property pursuant to a development plan duly approved by the [municipal director of planning and development] pursuant to powers delegated to it by the [mayor and council of the municipality] even though the development plan [was not final within the existing developmental regulations], where the landowner has expended large sums of money in furtherance of the development and has [granted to the homeowner’s association the lake, clubhouse, and surrounding land with amenities] in reliance upon its approved development plan.” WMM Properties v. Cobb County, supra at 439; see also DeKalb County v. Chapel Hill, supra at 244.

Such vested property right arises where there was a substantial change of position in reliance with legal or economic liability resulting through expenditures based upon the probability of approval of the development plan, and there was conditional or tentative approval; where assurances and representations made by governmental authority, or by someone with the delegated authority to approve the preliminary developmental plan; that the plans would allow such development under something other than a final plan; or where regulations existing at the time of submission of the plan of development supported such developmental plan. See WMM Properties v. Cobb County, supra at 438; see also Cannon v. Clayton County, 255 Ga. 63 (335 SE2d 294) (1985); Barker v. County of Forsyth, 248 Ga. 73, 76 (281 SE2d 549) (1981); Spalding County v. East Enterprises, 232 Ga. 887 (209 SE2d 215) (1974). Thus, the defendants acquired vested property rights under the preliminary developmental plan filed under the 1971 Regulations and, as a matter of law, such vested rights in the entire Riverbrooke Subdivision were “grandfathered” from the effect of the subsequently adopted 1992 Regulations.

2. The City’s second enumeration of error is that the trial court erred in determining that the City of Duluth subdivision regulations did not require the defendants to submit an “as-built” certification for the lake in Riverbrooke Subdivision. We do not agree.

Neither Article IX nor Article VII (C) of the 1971 Subdivision Regulations defines what a “detention pond” is or deals with lakes. The defendants provided “as-built” data for three detention ponds constructed in Riverbrooke Subdivision, which had no purpose other than use as detention ponds, which Footnote 29 refers to. Although the defendants provided substantial data in the preliminary plans as to the 15-acre lake, no “as-built” data or survey was ever furnished pursuant to Footnote 29 of such plans, because Footnote 29 referenced the three detention ponds and not the lake. Moreover, Footnote 29 did not have the effect of a regulation, and strict compliance, subsequent to approval of the plan, was waived by the City. Further, the lake only incidentally served any detention function by collecting water and controlling the rate and volume of discharge. Since the pre-existing flood plain where the lake was built was extensive enough to function in detention of surface water run-off without the construction of a detention facility, then the regulations did not require the construction of such facility. Because the lake only incidentally provided detention capacity, the lake was not converted into a “detention facility” subject to the regulations. It was such reasons that caused the trial court to find that the lake is not a detention facility as a matter of fact. The initial survey and hydrology data for the lake were substantially the same as the “detention pond record drawings (as-built),” because the data would be substantially the same.

Further, there was nothing in the 1971 Regulations regarding a lake; it only regulated the three detention ponds. The detention ponds for the Summit controlled most of the water which fell there. However, the water run-off from the Villas ran into the lake, but this did not make it a detention facility, although it incidentally served such purpose, because such water did not require detention with the size of the flood plain. The City really sought to regulate, after acceptance, the Clearbrooke Way culvert by requiring an “as-built” survey and certificate. The City by now requiring such survey could now reject the survey as deficient as to the culvert size leading to the lake area, which the City had not previously regulated as a detention facility system. The real issue involved the size and number of culverts under Clearbrooke Way.

In fact, Article VII (D) (2) of the 1971 Regulations required a performance bond to be posted under which the developer would be liable for any defects in the streets and “drainage system” for one year, beginning on the date of acceptance of the streets by the City. No such action was ever commenced by the City within such period, and the City accepted the streets and drainage system in 1991 so that the drainage problem became the City’s drainage responsibility and not a detention problem.

Article VII (C) provided that “cross drain pipe and pipe under roadway” had to “meet State Highway Specifications, Section 106 and 520” and not be less than 18 inches in diameter. Such City street and drainage standards were met by the defendants, and the work approved by the City before acceptance as a City street with the release of the performance bond in 1992. The defendants provided engineering studies to the City showing that with a 100-year flood limit, water would back-up culverts in some areas. To prepare the “as-built” survey and hydrology data demanded by the City would cost between $5,000 and $7,000.

While the lake may have in fact served in part as a detention facility for surface run-off water that would have entered the flood plain and may even have been designed for such purpose by the defendants’ engineers, the 1971 Regulations were fully satisfied and the completed work accepted by the City, and the lake was not a detention facility under the 1971 Regulations. The 1971 Regulations provided no standards or conditions for detention facilities of this size, and the preliminary plans for Phases I through V gave detailed descriptions of how storm drains and erosion control were to be dealt with in conjunction with the lake as to inflow sizing. The size and number of culverts under the streets were street design and drainage problems, not detention problems. See 1971 Regulations Art. VII (C). Moreover, neither the 1971 Regulations nor Footnote 29 gave the City the right to determine the size of the intake in excess of three feet. Footnote 29 was a general note that applied to the three detention ponds only, not to the lake.

Here, the City was not entitled to the relief sought, thus such finding did “not affect the substantial rights of the parties.” OCGA § 9-11-61; see also Miller Grading Contractors v. Ga. Fed. Sav. &c. Assn., 247 Ga. 730, 734 (3) (279 SE2d 442) (1981). The size and number of the culverts under Clearbrooke Way were not detention pond issues, but street/drainage issues under Art. VII (C) of the 1971 Regulations and were approved by the City as constructed in 1991 and the City released the performance bond 12 months after acceptance of Clearbrooke Way.

3. The plaintiff’s third enumeration of error is that the trial court erred in its determination that the City of Duluth was estopped from requiring an “as-built” certification of the lake in Riverbrooke Subdivision. We do not agree.

The City misplaces its reliance upon Corey Outdoor Advertising v. Bd. of Zoning Adjustment &c., 254 Ga. 221 (327 SE2d 178) (1985) (“Corey”), because the zoning ordinance in that case clearly and unambiguously prohibited the construction of a massive billboard within a specified distance of any of the historic district boundaries and described how this was to be measured. In Corey, the sign company had no right to rely upon the erroneous interpretation of the inspector, who had no authority to authorize a larger sign permit in clear violation of the prohibition of the ordinance. This is because the inspector, a mere employee, had no power or authority to disregard the plain language of the ordinance, and the issuance of the illegal permit was unauthorized, i.e., ultra vires.

Here, however, the Director had no regulation standards to apply but had the delegated power and authority from the City to make such discretionary decisions on the City’s behalf and to bind it by his actions. Second, while estoppel, generally, would not arise to frustrate a governmental function publicly expressed by the plain language of the ordinance prohibiting an act or omission, in this case, however, the governmental policy was not frustrated but was furthered by the acts or omissions of the Director in approving the final plan and occupancy permit without requiring compliance with Footnote 29, which the Director had authority to waive. The City delegated such powers to him to exercise in his discretion. While we have held that the 1992 Regulations are not applicable, the Director believed that he had the power to enforce them. He chose not to require the “as-built” survey and certification before the final plan was approved and the occupancy permits issued under Footnote 29.

The defendants should not be compelled to submit the certification and survey — over six years after relinquishing ownership of the lake, over three years after the final plan and certificate of occupancy had issued, and nearly three years after suit — when there was substantial compliance by the defendants, and only Footnote 29 of the preliminary plan created any expectation of the filing of the “as-built” survey. The real reason behind the City’s demand was to force the defendants to install a second culvert under Clearbrooke Way, a City street, to increase the inflow of water into the lake. Therefore, under the facts of this case, estoppel of the City of Duluth was appropriate, because such acts or omissions regarding Footnote 29 were not the exercise of an ultra vires act, but the exercise by the Director of discretionary delegated police powers of the City within the scope of his authority. City of Atlanta v. Black, 265 Ga. 425, 428-429 (457 SE2d 551) (1995); Quillian v. Employees’ Retirement System of Ga., 259 Ga. 253, 254-255 (4) (379 SE2d 515) (1989); City of Summerville v. Ga. Power Co., 205 Ga. 843 (2) (55 SE2d 540) (1949); cf. lack of authority City of Warner Robins v. Rushing, 259 Ga. 348, 349 (381 SE2d 38) (1989); Corey, supra at 224.

4. The City’s fourth enumeration of error is that the trial court erred in denying the City of Duluth’s request for injunctive relief. We disagree.

It must be remembered the maxims of equity that applied when the City of Duluth sought injunctive relief in equity were “[h]e who would have equity must do equity,” and “[ejquity gives no relief to one whose long delay renders the ascertainment of the truth difficult.” OCGA §§ 23-1-10; 23-1-25. The City had unclean hands when it (1) sought to enforce the 1992 Regulations against the defendants when they had vested rights under the 1971 Regulations; (2) sought to enforce the “as-built” survey for an ulterior motive; and (3) sought to enforce Footnote 29 as if the City had the power and authority to do so under the 1971 Regulations. The City slept on any rights under Footnote 29 and approved the final plans and occupancy, despite such alleged rights under Footnote 29, when there had been substantial compliance. See OCGA § 23-1-10; Partain v. Maddox, 227 Ga. 623 (182 SE2d 450) (1971). Further, the City of Duluth delayed requesting an “as-built” survey for over three years and then did not ask for it until after the occupancy permits had been granted. Welch v. Welch, 215 Ga. 198 (109 SE2d 757) (1959); Bleckley v. Bleckley, 189 Ga. 47 (5 SE2d 206) (1939).

Also, the City of Duluth had an adequate remedy at law, an action for declaratory judgment. The existence of such adequate legal remedy would deprive the superior court of subject matter jurisdiction to grant equitable relief in this case. See OCGA § 23-1-4; Housing Auth. v. MMT Enterprises, 267 Ga. 129 (1) (475 SE2d 642) (1996); Thomas v. Mayor &c. of Savannah, 209 Ga. 866 (4) (76 SE2d 796) (1953). The City’s action was for a mandatory, permanent equity injunction against the defendants to compel them to file the “as-built” survey and to obtain certification from the City. The City’s action was not an ancillary legal injunction to maintain the status quo under the Declaratory Judgment Act. See OCGA §§ 9-4-1; 9-4-3; see also Todd v. Conner, 220 Ga. 173, 175-176 (1) (137 SE2d 614) (1964); Milwaukee Mechanics Ins. Co. v. Davis, 204 Ga. 67 (48 SE2d 876) (1948); Shippen v. Folsom, 200 Ga. 58, 67-68 (1) (35 SE2d 915) (1945); Grange Mut. Cas. Co. v. Riverdale Apts., 218 Ga. App. 685, 686 (463 SE2d 46) (1995); Tenn. Farmers Mut. Ins. Co. v. Wheeler, 170 Ga. App. 380 (1) (317 SE2d 269) (1984); Ayers v. Mobley, 163 Ga. App. 239, 240 (1) (293 SE2d 470) (1982).

Moreover, even assuming that the trial court had facts that supported the exercise of equity jurisdiction in the superior court, injunctions should be granted cautiously and only if there was no adequate remedy at law; if the evidence showed that the plaintiff would suffer irreparable harm; and, in balancing the harm to the parties, if the superior court in the exercise of its discretion found' that equity demanded the grant of the injunction. Absent these factors, the trial court should deny an injunction. OCGA §§ 9-5-1; 9-5-8; Staples v. Ladson, 256 Ga. 621 (351 SE2d 448) (1987); Ellis v. Ga. Kraft Co., 219 Ga. 335 (133 SE2d 350) (1963); Pattison v. Farkas, 180 Ga. 798 (180 SE 831) (1935). Here, plaintiff failed to show by a preponderance of the evidence that it was entitled to injunctive relief and did not show irreparable harm to the City; the City alleged irreparable harm to other property owners. Tarver v. Silver, 180 Ga. 124 (178 SE 377) (1935). The trial court must, in the exercise of sound discretion, weigh and balance the convenience of the parties. Davies v. Curry, 230 Ga. 190 (196 SE2d 382) (1973); Jones v. Lanier Dev. Co., 188 Ga. 141 (2 SE2d 923) (1939). The appellate court will not interfere with the grant or denial of injunctive relief, because it is an exercise of trial court discretion, absent a manifest abuse of discretion. Slautterback v. Intech Mgmt. Svcs., 247 Ga. 762 (279 SE2d 701) (1981). In this case, the evidence was in dispute. Therefore, it was appropriate for the trial court to exercise discretion, and there has been no evidence of a manifest abuse of such discretion or error of law. Smith v. Mid-State Nurses, 261 Ga. 208 (403 SE2d 789) (1991); West v. Koufman, 259 Ga. 505 (384 SE2d 664) (1989).

Decided June 22, 1998.

Thompson & Sweeny, Virgil L. Thompson, Jr., Paul E. Andrew, for appellant.

Webb, Tanner & Powell, Robert J. Wilson, for appellees.

Judgment affirmed.

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

       Thus, the trial court’s factual finding that the lake was not a “detention facility could not be reversible error.


author: Blackburn, Judge.

text:
    A98A1642.
    CEASAR v. THE STATE.
    (503 SE2d 314)
   Blackburn, Judge.

Patrick Antonio Ceasar appeals his conviction for armed robbery, following a jury trial, based on the insufficiency of the evidence. Ceasar also contends that the trial court erroneously prevented him from cross-examining an officer about the composition of a photo lineup. For the reasons set forth below, we affirm.

1. In his first enumeration of error, Ceasar argues that the evidence adduced at trial was insufficient to support the verdict against him. We disagree.

“On appeal the evidence must be viewed in the light most favorable to support the verdict, and [Ceasar] no longer enjoys a presumption of innocence; moreover, an appellate court determines evidence sufficiency and does not weigh the evidence or determine witness credibility. . . . The standard for reviewing [an appeal based on insufficiency of the evidence] is whether under the rule of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979), the evidence was sufficient for a rational trier of fact to find beyond a reasonable doubt that the defendant was guilty of the charged offense.” (Punctuation omitted.) Lester v. State, 226 Ga. App. 373, 376 (2) (487 SE2d 25) (1997).

Viewed in this light, the evidence shows that Kim Benson, a co-defendant, entered the lobby of the Shoney’s Inn in Stockbridge, Georgia, shortly after 11:00 p.m. on December 26, 1994. Benson approached the clerk on duty, Jeffrey Dewberry, and inquired about renting a hotel room. Dewberry then gave Benson a guest registration card to fill out. A few minutes later, Ceasar entered the lobby and began talking with Benson about renting a room. Benson then told Ceasar that he had left his wallet in his car, Ceasar left and returned, stating that he could not find the wallet, and then the two men momentarily left the lobby together. When they returned, Benson showed Dewberry a gun that he was carrying. While Ceasar served as a lookout at the front door, Benson forced Dewberry to turn over money from the hotel registration desk and lockbox. Both Dewberry and Deborah Brown picked Ceasar’s picture out of a photo lineup. Benson’s fingerprints were later identified on the registration card at the Georgia crime laboratory.

At trial, Dewberry positively identified both Benson and Ceasar as the robbers, and he described Ceasar’s appearance on the night of the robbery as a “black male, clean cut. He was 6'2", 6'3", had on a long jacket, like a raincoat, like a London Fog.”

Deborah Brown, whom Dewberry had relieved that evening as desk clerk, testified that Ceasar approached her that evening on his way to the hotel lobby. Prior to trial, Brown picked Ceasar’s picture out of a photo lineup. At trial, Brown also positively identified Ceasar, and she described Ceasar’s appearance on the night of the robbery as a clean-cut, light-skinned black male wearing blue jeans, tennis shoes, and a tan trench coat. Brown further testified that, as she was getting ready to leave the property, she saw Ceasar exit the lobby, walk up to a certain car, merely touch the door handle, and then return to the lobby.

The foregoing testimony clearly placed Ceasar at the scene of the crime, and he was positively identified as one of the robbers. Accordingly, there was ample evidence to support the verdict against Ceasar under the standard of Jackson v. Virginia, supra.

2. In his second enumeration of error, Ceasar contends that the trial court erroneously prevented him from asking Detective Mark Fussell for his opinion about how many photographs of light-skinned black males were included in the photo lineups prepared by Fussell. Ceasar contends that the purpose of the question was to show that the lineup was overly suggestive because it contained fewer light-skinned individuals than dark-skinned ones. It is unnecessary to address this issue as there was no harmful error because both photo lineups from which Ceasar was identified were admitted into evidence. From the lineups, the members of the jury, themselves, could determine how many participants were light-skinned.

Judgment affirmed.

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

Decided June 22, 1998.

William D. Patten, Jr., for appellant.

Tommy K. Floyd, District Attorney, James L. Wright III, Assistant District Attorney, for appellee.


text:
    A98A1643.
    BENSON v. THE STATE.
    (503 SE2d 316)
   Blackburn, Judge.

Kim D. Benson appeals from his convictions of armed robbery and possession of a firearm during the commission of a felony, contending that the trial court erred in allowing certain evidence and that there was insufficient evidence to support his convictions. For the reasons discussed below, we affirm.

1. On appeal of a criminal conviction, the evidence must be viewed in the light most favorable to support the verdict, and the defendant no longer enjoys a presumption of innocence. Moreover, an appellate court determines the sufficiency of the evidence and does not weigh the evidence or determine witness credibility. The standard on appeal is whether the evidence was sufficient for a rational trier of fact to find beyond a reasonable doubt that the defendant was guilty of the charged offense. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Lester v. State, 226 Ga. App. 373, 376 (2) (487 SE2d 25) (1997).

The evidence shows that Benson entered the lobby of a Shoney’s Inn shortly after 11:00 p.m. on December 26, 1994. He asked the clerk on duty, Jeffrey Dewberry, about renting a hotel room. Dewberry handed Benson a registration card, and Benson began filling it out. After a few minutes, another individual, identified as Patrick Antonio Ceasar, Benson’s co-defendant, entered the lobby and began talking with Benson. Benson said he left his wallet in his car and asked Ceasar to go get it. Ceasar left the lobby but returned shortly thereafter and said he could not find the wallet. Benson and Ceasar then both left the lobby. About a minute later, the two men returned to the lobby. Benson showed Dewberry a gun in his hand. While Ceasar acted as a lookout, Benson took money from the hotel registration desk and lockbox. The two men then left, telling Dewberry to remain in the bathroom for ten minutes. Benson’s fingerprints were found on the registration card. Both Dewberry and Brown, another clerk, positively identified co-defendant Ceasar from a photographic lineup.

Dewberry positively identified Benson as the gunman at trial. There was also testimony that Benson’s fingerprints were found on the registration card the gunman had filled out. Dewberry further testified that he secured the registration card after the robbery and turned it over to the police.

Under these circumstances, there was ample evidence from which the jury could have found that Benson was guilty beyond a reasonable doubt of the offenses charged.

2. Benson contends that the trial court erred in allowing the State to introduce the registration card into evidence, arguing that the State failed to show a proper chain of custody. However, “[tjhere is no necessity of establishing a chain of custody where the evidence sought to be admitted is a distinct physical object that can be identified and differentiated by the senses on observation.” (Punctuation omitted.) Ramey v. State, 238 Ga. 111, 113 (4) (230 SE2d 891) (1976). Dewberry testified that the registration card entered into evidence was the same one that had been filled out by Benson and that he had turned over to the police. He also testified that the card was in substantially the same condition as when he gave it to the police.

Moreover, even if proof of chain of custody was required, that requirement was satisfied. Myron Mills, the police fingerprint analyst who identified Benson’s fingerprints on the card, testified that he personally took possession of the card at the scene of the crime. He testified that another officer, Detective Worth, who had arrived at the scene first, pointed out the card on the hotel counter. Worth then sealed the card in a plastic bag and handed it to Mills. Mills personally performed a chemical test which revealed several latent fingerprints on the card. Mills then delivered the card to Alfreddie Pryor, a fingerprint examiner at the state crime lab. Pryor testified that he compared the fingerprints on the card to prints in the state files, and that a set of prints on the card matched Benson’s prints. Mills also testified that he made a photostatic copy of the latent prints on the registration card, and matched those prints with prints taken from Benson when he was arrested. Therefore, even if the State were required to prove chain of custody of the registration card, it met this requirement.

Decided June 22, 1998.

Sharon S. Whitwell, for appellant.

Tommy K. Floyd, District Attorney, James L. Wright III, Assistant District Attorney, for appellee.

3. Benson also contends that the trial court erred in allowing a witness to testify that photographic lineup pictures of Benson were taken from previous arrests, thereby placing his character into evidence. However, Benson failed to object to this testimony when it was offered at trial, thereby waiving this issue for appeal. Cammon v. State, 227 Ga. App. 774, 775 (2) (490 SE2d 529) (1997).

Judgment affirmed.

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

       In her appellate brief, Benson’s attorney states that “[t]he only evidence offered during this trial that in any way implicates [Benson] is the fact that similar fingerprints to his were found on a folio in a public place where a number of people had been before and after the robbery. . . . Mr. Benson was not identified by either eye witness in a photo lineup or in court.” (Emphasis supplied.) In another section of her brief, Benson’s attorney states that “neither of the eye witnesses identified Mr. Benson in court.” These statements are blatant misrepresentations, as Dewberry positively identified Benson at trial. We note that the transcript of Dewberry’s testimony was only 39 double-spaced pages long. Three of those pages consisted of Dewberry’s in-court identification of Benson and Ceasar. Thus, it is difficult to believe that the attorney’s misrepresentations were anything other than intentional. At the very least, the making of such affirmative and material representations without even bothering to check the transcript constitutes wilful negligence and a violation of the attorney’s affirmative obligation to accurately state the facts. See Court of Appeals Rule 27 (a) (1); (c) (3) (i).
      Court of Appeals Rule 7 authorizes this Court, upon a finding of contempt, to impose a fine of up to $1,000 upon the offending party. This Court is generally reluctant to impose fines upon criminal defendants or their attorneys, in order to avoid discouraging vigorous prosecution of criminal appeals. However, this reluctance should not be interpreted as a sign that attorneys may mislead this Court without fear of consequences merely because the case is a criminal appeal. Misrepresentation of material facts is perhaps the clearest example of conduct which constitutes contempt in an appellate proceeding. A requirement that attorneys refrain from making such blatant misrepresentations should in no way prohibit conscientious criminal defense attorneys from zealously representing their clients.


text:
    A98A0116.
    DAVIS v. ALL-STATE HOMES & PROPERTIES et al.
    (503 SE2d 331)
   Judge Harold R. Banke.

Libby Davis sued All-State Homes & Properties d/b/a Century 21 Allstate (“All-State”), Cliff Joyner, and Oliver Moran, to recover for personal injuries allegedly sustained when her leg plunged through some rotten flooring in the trailer she rented from All-State. Davis appeals the summary judgment awarded to the defendants.

When construed in a light most favorable to Davis, the evidence shows that in late August, just before Davis moved into the trailer, All-State had to install some new flooring in the laundry room due to a water leak from the air conditioner unit. On September 7, Davis informed Dave Ragan, the co-owner, that the air conditioner unit was leaking and wetting the floor nearby. Ragan instructed her to prepare a written list of problems and give it to his repairman, Oliver Moran. On September 9, two days later, a broken water line squirted out water, flooding the carpet in her son’s room. When Moran fixed the water line on the hot water heater located inside her son’s closet, Davis noticed that the closet floor was rotten but could not see the state of the floor underneath the wet carpeting. At that time, Davis told Moran that part of the floor in the laundry room was wet and sagging. Despite reassuring Davis that he would be back later to fix the remaining problems, Moran did not return until after Davis fell. Ten days later, as Davis was walking across the kitchen toward her son’s room, the kitchen floor suddenly gave way.

It is undisputed that the flooring of this older trailer was made of particle board. Moran claimed that when he repaired the water heater he checked the kitchen floor and that it “seemed to be in a stable condition.” Moran testified that a few weeks earlier, he had used particle board to repair some rotten woodwork at the trailer’s back door. All-State claimed it could not be held responsible because it lacked actual or constructive knowledge of the “latent defect.” Davis appeals the summary judgment awarded to All-State. Held:

Davis contends that summary judgment was precluded by evidence of material disputed facts. “A landlord (should be) subject to liability for physical harm caused to the tenant . . . by a dangerous condition existing before or arising after the tenant has taken possession, if he has failed to exercise reasonable care to repair the condition and the existence of the condition is in violation of: (1) an implied warranty of habitability; or (2) a duty created by statute. . . .” Thompson v. Crownover, 259 Ga. 126, 129 (3) (381 SE2d 283) (1989).

By law, a landlord has a duty to “keep the premises in repair.” OCGA § 44-7-13. Where a landlord is notified that the premises are out of repair, it becomes his duty to inspect and investigate in order to make such repairs as the safety of the tenant requires. Mathis v. Gazan, 51 Ga. App. 805, 806 (181 SE 503) (1935). If, after such notice of the defects, he fails to make the requisite repairs within a reasonable time, he is chargeable with notice of all defects which a proper inspection would have disclosed. See id. Moreover, “ ‘once a landlord has notice of a defect, such as a leak, he is deemed to have constructive knowledge of all other defects which would have been discovered in repairing the first defect.’ [Cits.]” Carpet Central v. Johnson, 222 Ga. App. 26, 27 (1) (473 SE2d 569) (1996).

At issue here is whether All-State failed to exercise reasonable care in making repairs and whether a proper inspection would have disclosed the full extent of the defective condition of the floor and whether the delay in instituting repairs was reasonable. See id.; Thompson, 259 Ga. at 129. Davis testified, without contradiction, that within two weeks after moving in, she experienced two water problems, one with the same air conditioner whose leaking had rotted out the floor and another one with the water heater. She claimed that she had reported both leaks to her landlord. According to Davis, the location of the water leak from the hot water heater in her son’s closet was two or three feet from where she fell through the kitchen floor. A licensed civil engineer, James Roberts, examined the structural integrity of the floor from the underside of the trailer. In Roberts’ professional opinion, leaking water from the air conditioning unit and/or the hot water heater caused a “disintegration in the flooring” where Davis fell. Roberts explained that “water dripping onto particle board and standing for a period of time or constantly penetrating the board will disintegrate the glue that holds the wood particles together.” According to Roberts, such particle board will then fail due to a lack of strength and depletion.

Decided June 23, 1998.

J. O’Quinn Lindsey, for appellant.

Jones, Cork & Miller, Wendell K. Howell, Rufus D. Sams III, for appellees.

Moran’s assertion that the kitchen floor seemed stable is not dis-positive of the issue as to whether, in fact, a “proper inspection” had been performed. See Carpet Central, 222 Ga. App. at 27 (1). All-State offered no evidence that Moran or anyone else examined the underside of the trailer despite knowing the entire floor was comprised of particle board and despite knowing that a previous leak had rotted some flooring. Since a prior water leak from the same air conditioner unit destroyed part of the particle board flooring, whether All-State knew or should have known about the latent hazardous condition of the floor’s integrity raises a jury issue. Carpet Central, 222 Ga. App. at 27 (1); see Harris v. Sloan, 199 Ga. App. 340, 341 (1) (405 SE2d 68) (1991) (landlord’s liability for latent defect predicated on landlord’s knowledge of defect).

Nor can it be said as a matter of law that Davis had knowledge of what All-State termed a “latent defect.” Compare Taylor v. Boyce, 105 Ga. App. 434 (2) (124 SE2d 647) (1962) (tenant who knew about patently unsafe condition of rotten back porch could not recover for landlord’s failure to repair). Davis testified that she did not notice any sagging in her kitchen floor before her leg went through the floor. In these circumstances, we cannot say that All-State fulfilled its legal duties to properly inspect and to make repairs within a reasonable time after having notice of the problems. OCGA §§ 44-7-13; 44-7-2 (b) (2). Accordingly, summary judgment must be reversed.

Judgment reversed.

Johnson and Smith, JJ., concur.

       Only All-State responded to the instant appeal.