text:
    A95A1581.
    JACOBS v. SHAW et al.
    (465 SE2d 460)
   Beasley, Chief Judge.

Jacobs appeals the grant of summary judgment by the trial court in favor of defendants Shaw and Wallace Enterprises. Garrett Jacobs and his wife, Elizabeth, stopped at the Wallace Texaco station in Duluth to purchase gasoline. As Elizabeth was filling the gas tank, it appeared to her that while the advertised price was below $1 per gallon, the pump was recording a price over that amount. She asked her husband to resolve the discrepancy by having the clerk check the pump when he went in the store to pay.

Jacobs presented his Texaco credit card for payment to Shaw, the manager and only Wallace employee on duty, and asked that she inspect the pump. Shaw processed Jacob’s card through the credit card machine and presented him with a receipt for $15.25 for his signature. Jacobs refused to sign unless Shaw agreed to check the pump to determine if it was functioning properly.

There is conflicting evidence as to what occurred next: Shaw deposed that she informed Jacobs she would check the pump as soon as she finished with other customers. Jacobs maintains that she simply ignored his request. Shaw claims that Jacobs began shouting obscenities and cursing and then pushed her. Shaw claims she insisted she would call the police if he refused to sign the credit card slip. Jacobs maintains that Shaw became irate and belligerent and, referring to him as a “damn Yankee,” poked her finger in his chest several times.

Jacobs left without signing the slip, and Shaw telephoned the police and her supervisor at Wallace. A police officer arrived on the scene, and Shaw gave him an oral and then written statement of her version of the events. After the police left, Shaw’s supervisor instructed her to reverse Jacob’s gasoline charge on his Texaco account.

The police officer telephoned Jacobs later that day and reviewed a report from the state regulatory agency that had determined the pump in question was working properly. He then determined that probable cause existed for an arrest and swore out a warrant for Jacobs. Four days later, police arrested Jacobs for theft of the gasoline and simple battery. He was held in jail for approximately five hours, until his wife had him released on a property bond. Some months later, the solicitor’s office dropped the charges. Jacobs sued Shaw and Wallace Enterprises exactly a year and a day after the incident, alleging false arrest, malicious prosecution, false imprisonment, intentional infliction of emotional distress, and slander per se.

1. Jacobs contends that, as to his claims for false arrest, malicious prosecution, and false imprisonment, a material factual issue exists as to whether Shaw and Wallace made a false crime report which the police used as a basis for obtaining the arrest warrant. Although similar, the elements that must be proved for false arrest, malicious prosecution, and false imprisonment, and the circumstances which give rise to each, vary to some degree. OCGA §§ 51-7-1; 51-7-40; 51-7-20. See generally Smith v. Embry, 103 Ga. App. 375 (119 SE2d 45) (1961); Reese v. Clayton County, 185 Ga. App. 207 (363 SE2d 618) (1987); Lowe v. Turner, 115 Ga. App. 503 (154 SE2d 792) (1967). In each case, “ ‘ “The law draws a fine line of demarcation between cases where a party directly or indirectly urges a law enforcement official to begin criminal proceedings and cases where a party merely relays facts to an official who then makes an independent decision to arrest or prosecute. . . . (T)he initiation of the criminal action need not be expressly directed by the party to be held liable. [Cit.]” [Cit.]’ ” McLeod v. Pruco Life Ins. Co., 215 Ga. App. 177, 179 (1) (449 SE2d 895) (1994). Each cause of action may successfully be defended by an uncontroverted affidavit of the arresting officer that the decision to arrest plaintiff was made solely by him in the exercise of his professional judgment and independently of any exhortations by the defendants. Id.

The police officer in this instance provided an affidavit containing virtually the identical language cited above from McLeod. Jacobs argues that the officer’s own affidavit contradicts this language in that he admits he would not have arrested Jacobs were it not for the statements of Shaw. The situation was identical in McLeod. The court there determined the admission by the officer did not contradict his earlier statement as to the exercise of his professional judgment. It is so in this case as well. Id.

Jacobs also argues the officer’s affidavit is not uncontroverted, in that his decision to arrest was based on misrepresentations Jacobs alleges Shaw made to the officer in her statement. The issue is not whether Shaw’s version is uncontroverted, but whether the officer’s testimony that he used his own independent, professional judgment in making the decision to arrest is uncontroverted. Even if he relied on Shaw’s statement as a factor in determining to swear out the warrant against Jacobs, the officer’s affidavit makes clear that the basis for swearing out the warrant also included his on-scene investigation, the review of the report from the state regulatory agency noting the pump worked properly, his telephone conversation with Jacobs, and his experience as a police officer.

Judging the evidence in favor of Jacobs and giving him the benefit of every doubt and indulging every reasonable inference in his favor on the motion for summary judgment, as required under Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991), the evidence shows that summary judgment was proper on these issues.

2. Jacobs next cites as error the summary judgment on his claim for slander per se, brought pursuant to OCGA § 51-5-1 (a) (1), on the ground that it was time-barred. OCGA § 9-3-33 provides that a party has one year to bring a suit for slander, and the limitations period begins to run once the slanderous statement is uttered or “published.” See Davis v. Hosp. Auth. of Fulton County, 154 Ga. App. 654, 656 (3) (269 SE2d 867) (1980). A claim for slander is untimely if brought on the anniversary date of the alleged publication or thereafter. Holliday v. Lacy, 118 Ga. App. 341 (163 SE2d 750) (1968). Shaw reported the incident to the police officer on February 17, 1993. Jacobs filed suit on February 18, 1994. Consequently, he is time-barred as to any alleged slander occurring on or before February 18, 1993, including Shaw’s oral report (February 17) and written report (either February 17 or 18; the record is conflicting).

Jacobs contends there is evidence in the record showing Shaw published statements relating to Jacobs’ alleged criminal acts after that date, and any claims for slander relating to such statements would not be time-barred. His complaint does not allege any claims for slander as to these statements but only that “[i]n executing the warrant against [Jacobs] . . . , [Shaw] made oral statements to third parties, charging that [Jacobs] committed criminal acts.”

Jacobs’ complaint is subject to the requirements of OCGA § 9-11-8 (f) that pleadings be construed liberally and reasonably to achieve substantial justice consistent with the statutory requisites of the CPA. Skelton v. Skelton, 251 Ga. 631 (308 SE2d 838) (1983). Nonetheless, “ ‘[w]hen the claim alleged is a traditionally disfavored “cause of action,” such as malicious prosecution, libel, and slander, the courts tend to construe the complaint by a somewhat stricter standard. . . .’ [Cit.]” (Emphasis supplied.) Hatcher v. Moree, 133 Ga. App. 14, 16 (1) (209 SE2d 708) (1974). Even a liberal interpretation of the complaint fails to encompass claims for republication of slander that Jacobs has failed to plead.

Decided November 6, 1995

Reconsideration denied December 11, 1995

Boyce, Ekonomou & Atkinson, Richard A. Carothers, Christopher J. Hamilton, for appellant.

Long, Weinberg, Ansley & Wheeler, Arnold E. Gardner, Dennis J. Webb, Jr., for appellees.

3. Jacobs cites as error the grant of summary judgment on the issue of intentional infliction of emotional distress, arguing that defendants failed to address this issue in their original motion and brief and only later briefed the issue by letter. But defendants’ motion requests complete, not partial, summary judgment on each count of the complaint. A party is not required to specify any count in a motion for summary judgment or the grounds upon which it relies. Shockley v. Zayre of Atlanta, 118 Ga. App. 672, 675 (165 SE2d 179) (1968). Moreover, Georgia law gives a trial judge wide latitude to dispose of any and all claims in the interest of judicial economy, so that a judge may grant summary judgment to a party even if he does not request it. Cruce v. Randall, 152 Ga. App. 183, 184 (262 SE2d 488) (1979), aff’d 245 Ga. 669 (266 SE2d 486) (1980). A thorough examination of the record to ascertain whether judgment without trial was appropriate is not faulted.

Judgment affirmed.

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


source: Caselaw Access Project

author: Pope, Presiding Judge.

license: Public Domain

text:
    A95A1699.
    In re WASHBURN.
    (465 SE2d 459)
   Pope, Presiding Judge.

Attorney Thomas L. Washburn III appeals from an order finding him in criminal contempt for making intentional misrepresentations to Gwinnett County State Court Judge Fuller. Concluding that the evidence was sufficient to warrant the finding of criminal contempt, we affirm.

Washburn filed a complaint on behalf of a client in Gwinnett County State Court against David Properties, Inc. and its successor in interest, Noel A. David. Initially, the case was assigned to Judge Hoffman. David filed a pro se motion to dismiss the complaint. On November 10, 1992, a hearing was held on David’s motion as well as a motion to strike which Washburn had filed. At the hearing, which lasted no longer than 20 minutes, Washburn withdrew the motion to strike, and Judge Hoffman continued David’s motion to dismiss, suggesting that David retain counsel. Judge Hoffman, however, failed to issue orders regarding either motion.

On January 1,1993, Judge Fuller replaced Judge Hoffman on the bench and assumed his cases. Thereafter, Judge Fuller’s secretary had a telephone conversation with Washburn regarding the status of the two motions. Washburn told the secretary that he had withdrawn the motion to strike and that Judge Hoffman had denied David’s motion to dismiss. On January 14, 1993, Washburn sent a letter to Judge Fuller memorializing the conversation and submitted an order denying David’s motion for the Judge’s signature. Based on Washburn’s representations, Judge Fuller signed the order on January 20, 1993.

After receiving a copy from the court of the order denying his motion to dismiss, David retained counsel and filed a motion to vacate the order, claiming that Judge Hoffman originally had not denied his motion. Washburn and his client did not respond. Upon review of the transcript of the November 10, 1992 hearing, Judge Fuller verified David’s claim and as a result vacated the order Washburn had prepared. Judge Fuller later recused himself from the case and filed a motion for contempt against Washburn. See In re Adams, 215 Ga. App. 372, 377 (1) (450 SE2d 851) (1994). Judge Conner conducted a full hearing on the matter and found Washburn in criminal contempt pursuant to OCGA § 15-1-4 (a) (1) and (2). Washburn was sentenced to ten days in jail and fined $500.

Washburn argues that the evidence was insufficient to support a finding of criminal contempt. We disagree. As set forth above, Wash-burn made representations to Judge Fuller that David’s motion to dismiss was heard and ruled upon by Judge Hoffman. Clearly these representations were untrue. Although Washburn contends that his representations were based on his best recollection, and were not intentionally misleading, his credibility on this subject is questionable in light of the brevity and simplistic nature of the hearing on David’s motion to dismiss and the closeness in proximity between the time of the hearing and the misrepresentations. Issues of credibility are best left to the trier of fact. Accordingly, we conclude that the evidence in this case, viewed in a light most favorable to the prosecution, was sufficient for any rational trier of fact to have found Washburn in contempt beyond a reasonable doubt. See In re Irvin, 254 Ga. 251, 256 (2) (328 SE2d 215) (1985).

Additionally, we reject Washburn’s contention that Judge Conner’s factual finding that David’s motion to dismiss was “never even discussed, much less ruled upon,” is contrary to the record and thus warrants reversal of Washburn’s conviction. Although the motion to dismiss was discussed at the November 10, 1992 hearing, it is mere semantics to allege that the fact the motion was brought up as a topic renders Judge Conner’s findings inaccurate. The November 1992 hearing transcript demonstrates that the evidentiary and legal substance underlying David’s motion to dismiss was never discussed or ruled upon. Thus, Judge Conner’s findings accurately reflect the evidence of record.

Decided November 1, 1995

Reconsideration denied December 11, 1995.

Thomas L. Washburn III, pro se.

Boyce, Ekonomou & Atkinson, John E. Underwood, Sr., Shelby A. Outlaw, Caryl Sumner, William J. Linkous III, Dan R. Gresham, for appellee.

Judgment affirmed.

Beasley, C. J., and Ruffin, J., concur.


author: McMurray, Presiding Judge.

text:
    A94A1151.
    WILLIS et al. v. LISLE.
    (465 SE2d 532)
    Decided December 11, 1995.

      Andersen, Davidson & Tate, Thomas T. Tate, William M. Ray II, for appellants.

      Finch, McCranie, Brown & Thrash, Charles E. McCranie, Webb, Tanner & Powell, Anthony O. L. Powell, Steven A. Pickens, for appellee.
   McMurray, Presiding Judge.

In accordance with the judgment of the Supreme Court of Georgia in Lisle v. Willis, 265 Ga. 861 (463 SE2d 108) reversing the judgment of this Court in Willis v. Lisle, 215 Ga. App. 191 (450 SE2d 826) wherein this Court vacated the judgment of the trial court and remanded the case for reconsideration, this Court’s prior judgment is vacated. The judgment of the Supreme Court of Georgia is made the judgment of this Court and the judgment of the trial court is affirmed.

Judgment affirmed.

Pope, P. J., and Smith, J., concur.


author: Birdsong, Presiding Judge.

text:
    A95A2196.
    NATIONAL FOUNDATION COMPANY v. POST, BUCKLEY, SCHUH & JERNIGAN, INC. et al.
    (465 SE2d 726)
   Birdsong, Presiding Judge.

Appellant National Foundation Company d/b/a Nicholson Construction Company (construction company) filed notice of appeal solely from the order of the trial court granting summary judgment to appellees Post, Buckley, Schuh & Jernigan, Inc. et al.

On June 25, 1990, John Wesley Murphy, a carpenter employed by the general contractor, E. R. Snell Contractor, Inc., fell from an unguarded walkway along a shoring wall at the Peachtree Road bridge-Georgia 400 construction project (project); as a result, he was rendered a brain-damaged quadriplegic. The shoring wall was part of a construction project designed by appellee Post, Buckley, Schuh & Jernigan, a professional engineering firm, under contract with the Georgia Department of Transportation. Appellees Stephen Hale, project manager, and Joseph McGrew, bridge designer, were professional engineers employed by appellee engineering firm.

On November 17, 1992, Kimber Fortner, legal guardian of Murphy, sued appellees and appellant construction company averring professional malpractice in the design, preparation and subsequent shop drawings for the shoring wall, and that appellant construction company was negligent in maintaining a safe work area. Appellant served as both the designer of the shoring wall and as the supervising contractor for its construction. The OCGA § 9-11-9.1 expert affidavit recites that appellee Hale was the engineer of record, certain of the drawings relating to the project were made by appellee McGrew, and the project plans were prepared by appellee engineering firm for whom Hale and McGrew acted as agents in designing, preparing and approving construction drawings for the project. The affidavit also recites that the details of the shoring wall from which Murphy fell were prepared in the form of shop drawings by an engineer-employee of appellant construction company as part of, and in implementation of, the overall project design prepared by appellee engineering firm. These shop drawings were submitted to appellee engineering firm and were reviewed and approved by their agent McGrew. The expert’s affidavit concluded that appellee engineering firm and its agents were negligent as follows: failing to design and show on the drawings a protective barrier or handrail for the top of the shoring wall; failing to provide for barriers at each end of the shoring wall to keep workers from the top of the wall; and failing when reviewing the shop drawings prepared by appellant construction company to require protective barriers or handrails on the top of the wall or barriers at each end thereof to keep workers from the wall top. The expert’s subsequent deposition testimony was not inconsistent with his affidavit. Appellee engineering company submitted inter alia affidavits from McGrew and Hale in which they stated they were not negligent in connection with their design of the project or with the review of the shop drawings. They also claimed no responsibility or obligation to design barricades or handrails for the shoring wall, and that their review of appellant’s shop drawings did not require them to check for safety items such as barricades or handrails.

The trial court granted summary judgment to appellees and denied summary judgment to appellant. Thereafter, appellant and another defendant settled the case with plaintiff. As a material part of this settlement plaintiff, with consent of the trial court, dismissed its suit with prejudice after having executed a broad release of appellant and all persons and legal entities listed expressly by name in the release and settlement agreement document. Both appellant and appellees were among those entities expressly listed by name in the release and settlement agreement. Thereafter, appellant filed notice of appeal from the grant of summary judgment to appellees. See generally Shackelford v. Green, 180 Ga. App. 617, 618-619 (349 SE2d 781), aff'd 257 Ga. 9 (356 SE2d 27).

Appellant asserts the trial court erred in concluding there were no genuine issues of material fact presented by the evidence, and that appellees were not entitled to summary judgment; appellees contend inter alia that this appeal should be dismissed. Held:

1. “Direct appeals from orders granting partial or complete summary judgment may be taken either within 30 days of rendition of the judgment or after the rendition of the final judgment in the case.” Studdard v. Satcher &c., Inc., 217 Ga. App. 1, 2 (456 SE2d 71). Notice of appeal was filed within 30 days of plaintiffs voluntary dismissal of this suit with prejudice.

As a general rule, voluntary dismissal with prejudice (particularly when entered with trial court approval) of an entire suit constitutes a form of “final judgment” under the appellate practice act. Marchman & Sons v. Nelson, 251 Ga. 475 (306 SE2d 290); cf. Fowler v. Vineyard, 261 Ga. 454 (2) (405 SE2d 678) (voluntary dismissal with prejudice constitutes judgment on the merits for purposes of res judicata). As “the right of contribution arises out of, but exists separately from,” the rights present in an underlying suit ex delicto involving joint tortfeasors, “dismissal with prejudice of the underlying suit is not a bar to an action for contribution by one joint tortfeasor against another joint tortfeasor.” Marchman, supra at 477, 478.

Appellee engineering firm asserts, however, that because appellant secured the dismissal of all parties, including itself, from the case, no case or issue remains to be appealed. Appellant contends it is entitled to appeal the grant of summary judgment to the co-defendant, appellee engineering firm, based on the holding of this Court in Shackelford, supra. In Shackelford at 618, it was opined that “[s]tatus as a losing party has been statutorily conferred upon a co-defendant who[, as in this case,] is being sued in the capacity of a joint tort-feasor and who wishes to appeal the grant of summary judgment in favor of one or more of his other co-defendants.” A co-defendant in a tort action, as a general rule, is deemed to have standing to appeal the grant of summary judgment to another co-defendant against whom he asserts a right of contribution. See Shackelford, supra; compare Hussey &c. v. Ga. Ports Auth., 204 Ga. App. 504, 507 (4) (420 SE2d 50). Thus, the standing requirement has been relaxed in situations “in which the co-defendants are being sued as joint tortfeasors.” C. W. Matthews Contracting Co. v. Studard, 201 Ga. App. 741, 742 (2) (412 SE2d 539).

Appellees, citing inter alia Satcher &c., Inc., supra; Mitchell v. Wyatt, 192 Ga. App. 127 (1) (384 SE2d 227) and United States Fire Ins. Co. v. Farris, 146 Ga. App. 177 (245 SE2d 868), assert that a party cannot appeal from a voluntary dismissal which it has caused to be procured. Appellant aptly counters that it is appealing from the grant of summary judgment and not from either the order of the court authorizing voluntary dismissal of the suit or the voluntary dismissal thereof. The order granting summary judgment was, by virtue of statute (OCGA § 9-11-56 (h)), an appealable order; it is from this order appellant has timely filed this appeal. And appellant, as an alleged joint tortfeasor, is deemed to have appellate status as a “losing party.” Shackelford, supra. We decline to dismiss this appeal.

2. Applying the summary judgment standards of Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474), we conclude that the trial court did not err in granting summary judgment to appellees.

In malpractice cases, the breach of duty — that is, the element of failure of the professional to exercise ordinary care, skill, and diligence — must relate directly to the duty of the professional to perform the task for which he was employed. Tante v. Herring, 264 Ga. 694, 695 (1) (453 SE2d 686). A legal duty can arise either by operation of law or by contract. Armor Elevator Co. v. Hinton, 213 Ga. App. 27, 30 (443 SE2d 670). What duty a defendant owes to a plaintiff is a question of legal policy to be decided as an issue of law. Meinken v. Piedmont Hosp., 216 Ga. App. 252, 253 (454 SE2d 147).

Mere occurrence of an unfortunate event is not sufficient to authorize an inference of negligence. Robertson v. MARTA, 199 Ga. App. 681, 682 (405 SE2d 745). Appellant’s expert opined inter alia that appellee engineering firm breached its professional duty (a) when it designed a shoring wall with a 30-foot drop in a working area without providing for barricades to keep people off the wall or a guardrail to prevent persons from falling off the wall and (b) in failing to review the contractor’s shop drawings so as to require the construction of such barricades and/or guardrail.

Appellant relies substantially on the holding of this Court in Samuelson v. Lord &c., Inc., 205 Ga. App. 568 (423 SE2d 268). In Samuelson at 572, it was held that independently of the architect or engineering contract, an architect or engineer owes a general duty to use reasonable care not to harm third persons who, it is reasonably foreseeable, might be harmed by a negligent architectural design. It was further held that a duty to create a walkway for third-party pedestrians also may be created by ordinance or “by an accepted industry standard for a particular type of development.” Id. at 573. However the court, after noting that plaintiff’s expert affidavits alleged defendant’s failure to provide a way to permit continuous pedestrian traffic was a “failure to follow generally accepted practices of the architectural and engineering professions,” observed that “[u]pon a motion for summary judgment defendants may be able to establish that the applicable ordinances and industry standards for the premises at issue in this case do not require a way for pedestrian traffic across the property.” Id. Thus, the court concluded that it was premature to dismiss the complaint or to grant judgment to the defendants on the pleadings. Samuelson is distinguishable as it involved neither injury sustained by an employee of a contractor or subcontractor at the work site nor the grant of a motion for summary judgment.

We conclude as a matter of law that, under the attendant circumstances, appellees had no such legal duty toward appellant. The design and placement of handrails or barricades of a temporary nature in a work site area is primarily a safety measure rather than an inherent design requirement of the structure of the shoring wall. The duty for workers’ safety rested upon those contractors who exercised worker control and supervisory responsibility on the job site; appellees contractually exercised no such control or supervisory responsibility. Although not directly in point, under the attendant circumstances, we find the results of Henry Roy Portwood, Inc. v. Smith, 207 Ga. App. 748 (429 SE2d 143) and Yow v. Hussey &c. Intl., 201 Ga. App. 857 (412 SE2d 565) persuasive in determining whether, as a matter of legal policy, appellee engineering firm owed a duty to include temporary safety features in its design of the shoring wall or in its review of the contractor’s shop drawing. In Frampton v. Dauphin Distrib. Svcs. Co., 648 A2d 326, 329 (SC Penn.), the court opined: “The architect . . . had not been hired to supervise the construction work and had no contractual obligation to oversee the manner in which the several contractors and their employees performed their work. . . . Absent a greater duty imposed by contract or course of conduct, an architect’s liability is limited to instances of unsafe or defective design of a structure. An architect, in the absence of a duty specially imposed by contract or course of conduct, has no duty to take affirmative action to protect workers from hazards on the job site which are either known or[, as in this case,] readily visible.” (Emphasis supplied.) Compare Block v. Lohan Assoc., 645 NE2d 207, 222-224 (Ill. App.); Waggoner v. W & W Steel Co., 657 P2d 147 (SC Okla.) and Kaltenbrun v. City of Port Washington, 457 NW2d 527 (CA Wisc.). We further find this same principle equally applies to appellee engineering firm and its agents and employees as well as to architects, and also applies in professional malpractice cases as well as negligence cases. We recognize there exists no direct precedent for our holding. However, “[t]here can not be a precise precedent for everything. Where [, as in this case,] there is a clearly established principle, the lack of a precedent is no obstacle. There must some time be a first precedent.” Crosby v. Potts, 8 Ga. App. 463, 466 (69 SE 582).

Decided December 11, 1995.

Pursley, Howell, Lowery & Meeks, John R. Lowery, Susan S. Jones, for appellant.

Sutherland, Asbill & Brennan, William R. Wildman, Charles T. Lester, Jr., for appellees.

Additionally, in determining the scope of appellees’ duty, as an issue of legal policy (Meinken, supra), we agree with the appellees that adoption of appellant’s position would generate an intolerable legal burden on the design community in this state, and could result in a blizzard of design litigation generated through a battle of experts. This in effect would remove the issue of legal duty from the breast of the court and vest it within the waiting grasp of the retained expert. Though appellant’s arguments in this regard are enticing, “[w]e cannot succumb to this siren’s call.” Perryman v. Rosenbaum, 205 Ga. App. 784, 788 (423 SE2d 673).

Judgment affirmed.

Johnson and Smith, JJ., concur.


text:
    A95A2749.
    GASTER LUMBER COMPANY v. BROWNING et al.
    (465 SE2d 524)
   Birdsong, Presiding Judge.

Appellant/plaintiff Gaster Lumber Company appeals from the judgment entered in a bench trial in favor of appellees/defendants, William H. Browning, Jr. and Betty S. Browning on a suit to foreclose a materialman’s lien.

Appellees entered into a construction contract with Gregory & Associates, Inc. (Gregory) for the construction of a residence for an amended cost of $243,830. Gregory purchased certain building materials for this residence on their account with appellant lumber company; the account terms were memorialized on a business credit application executed by Gregory. Certain materials were purchased by Gregory from appellant and delivered to the work site pursuant to yard orders. Appellant issued invoices on each yard order to Gregory upon delivery of the materials. Appellant filed its claim of lien after it failed to receive full payment of its invoices. At some point, Gregory either abandoned the project or was terminated; appellees obtained no contractor’s affidavit from Gregory. Thereafter, appellee Mr. Browning assumed the role of general contractor for the project. Appellees apparently expended additional sums of money to complete the project, all of which were paid after the filing of appellant’s lien. At this time, Gregory still owed appellant $20,393.71 for material delivered to the work site.

Appellant filed suit to collect its debt and to foreclose its materialman’s lien. The trial court entered judgment in favor of appellant against Gregory for $22,654.01, plus interest. Appellees then waived trial by jury and a bench trial was held. The trial court initially entered a $36,714.70 judgment in favor of appellant and against appellees. This judgment included $20,393.71 principal amount of lien; $3,446.28 finance charges; $8,973.23 prejudgment interest; and $3,901.48 attorney fees. A separate judgment also was entered establishing appellant’s lien against the property. Appellees filed a motion for reconsideration and/or for new trial, and a second motion for new trial on the general grounds. Subsequently, the trial court entered an order on motion for new trial reversing its conclusions of law and finding in favor of appellees; appellant filed this appeal enumerating five errors. Held:

1. Appellant asserts the trial court erred in concluding that the sums expended by appellees for work and materials prior to the termination of Gregory, plus the costs of completion, exceeded the contract price of the residence and, accordingly, that appellant’s lien was not enforceable pursuant to the statutory defense of OCGA § 44-14-361.1 (e). OCGA § 44-14-361.1 (e) provides: “In no event shall the aggregate amount of liens set up by Code Section 44-14-361 exceed the contract price of the improvements made or services performed.” This provision previously was promulgated in substantially similar form in OCGA § 44-14-361 (b).

The trial court ordered that, pursuant to the affirmative defense of OCGA § 44-14-361.1 (e), the lien should be discharged and judgment entered in favor of appellees, as the total amount of the liens to which the property became liable was $263,201 while the contract price, as amended by the parties, was only $243,830. (The court calculated the total amount of liens as including $217,201 subsequently paid by appellees to materialmen and laborers to complete the project after it was abandoned by Gregory, $5,000 architect fees paid to Gregory before appellant’s lien was filed, and $41,000 paid by Gregory, with appellees’ funds, to materialmen and laborers. The trial court further found, as additional findings of fact, that appellees/defendants have not proved that the $41,000 was paid by Gregory prior to the filing of appellant’s lien on August 22, 1990.) In concluding that the defense of OCGA § 44-14-361.1 (e) was available to appellees, the trial court rested its holding on the legal theory that, unlike the defense provided in OCGA § 44-14-361.1 (a) (4), “the defense mentioned in subsection (e) does not require proof that the funds spent were ‘properly appropriated,’ i.e., paid before the filing of the lien.”

We hold that the trial court applied an erroneous legal theory in reaching its judgment, as the defense provided in OCGA § 44-14-361.1 (e) inherently requires that the owner show the sums paid to the contractor were properly appropriated to materialmen and laborers or that the contractor’s statutory affidavit concerning such indebtedness had been obtained. See Freeman v. Fulton Concrete Co., 204 Ga. App. 465, 466 (1) (419 SE2d 536); Mayer Elec. Supply Co. v. Federal Ins. Co., 195 Ga. App. 191, 192-193 (393 SE2d 270); Dallas Bldg. &c. v. Rose, 191 Ga. App. 783, 784 (1) (383 SE2d 151); Bishop v. Forsyth Paving &c., 181 Ga. App. 345 (352 SE2d 198) (physical precedent only), overruled in part on other grounds, Dallas Bldg. &c. v. Smith, 193 Ga. App. 512 (388 SE2d 359); compare Jones Mercantile Co. v. Lyn-Har, Inc., 245 Ga. 812 (267 SE2d 251); Whatley v. Alto Corp., 211 Ga. 718 (88 SE2d 398); Green v. Farrar Lumber Co., 119 Ga. 30 (46 SE 62); Elec. Distributors v. Turner Constr. Co., 196 Ga. App. 359, 362 (2) (395 SE2d 879). (Note: No statutory affidavit was obtained by the contractor in this case.)

We do not herein determine whether the trial court’s ruling met the so-called “judgment right for any reason” test; because, while ordinarily a judgment right for any reason must be affirmed, where it is apparent the trial court rests its judgment on reasons which are erroneous or upon an erroneous legal theory, it commits reversible error. Huff v. Valentine, 217 Ga. App. 310, 311 (1) (457 SE2d 249) and cases cited therein.

2. Appellant contends that there does not exist any evidence to support the trial court’s finding crediting appellees with $5,000 paid to Gregory for architect fees and that the trial court erred in so crediting appellees. In view of our disposition of this case due to our holding in Division 1, we need not address this enumeration of error. Suffice it to note that on appeal the record must contain sufficient evidence to enable a jury to calculate the amount with reasonable certainty. See Schill v. A. G. Spanos Dev., 217 Ga. App. 260, 262 (457 SE2d 204).

Decided December 11, 1995

Kent, Worsham, Smart & Brannon, Hugh M. Worsham, Jr., for appellant.

3. Appellant asserts the trial court erred in crediting appellees with $217,201.10 in costs to complete the residence, as appellees failed to meet their burden of proof as to this amount. In view of our disposition of this case due to our holding in Division 1, we need not address this enumeration of error.

4. Appellant, citing Turner Constr. Co. v. Elec. Distributors, 202 Ga. App. 726 (415 SE2d 325), contends the trial court erred in failing to award prejudgment interest. In view of our holding in Division 1, the issue of prejudgment interest normally would not be ripe for adjudication. But in the interest of judicial economy, we find that notwithstanding the silence of OCGA § 44-14-360 et seq., regarding entitlement to prejudgment interest, “lien claimants are entitled to prejudgment interest at the statutory rate of seven percent per annum on all liquidated claims.” Turner Constr. Co., supra, 202 Ga. App. at 726-727 (2), citing Horkan v. Great American Indem. Co., 211 Ga. 690 (88 SE2d 13). Appellees nevertheless contend that they are insulated against the payment of prejudgment interest as the total lien cannot exceed what is allowed by OCGA § 44-14-360 et seq. We find that an award of prejudgment interest is distinct and separate from and not to be included in the calculation of the “aggregate amount of liens,” within the meaning of OCGA § 44-14-361.1 (e). In this regard, we note that OCGA § 7-4-15 expressly provides that “[a]ll liquidated demands . . . bear interest from the time the party shall become liable and bound to pay them.” No exclusion is made in this statute to liquidated demands underpinning a materialman’s lien. Prejudgment interest is not precluded merely because the aggregate amount of liens exceeds the contract price under OCGA § 44-14-361.1.

5. In view of our holding in Division 1, we conclude that appellant’s enumeration that the trial court erred in concluding that appellees are not liable for attorney fees is not ripe for adjudication. However, in the interest of judicial economy, we conclude that First Union Nat. Bank &c. v. Big John’s &c., 203 Ga. App. 797, 798 (4) (417 SE2d 416) and Bankers &c. Ins. Co. v. Oliver, 106 Ga. App. 305, 308 (3) (126 SE2d 887) are distinguishable and not controlling. Further, the mere fact that an applicable lien statute does not expressly provide for attorney fees would not per se preclude such an award if the statutory requirements of OCGA § 13-6-11 were otherwise satisfied. See also Turner Constr. Co., 202 Ga. App. 726, supra.

Judgment reversed.

Johnson and Smith, JJ., concur.

Lee, Black, Scheer & Hart, Steven E. Scheer, Christopher L. Rouse, for appellees.


author: Blackburn, Judge.

text:
    A95A2846.
    PAYNE v. THE STATE.
    (465 SE2d 724)
   Blackburn, Judge.

Landon Lodell Payne appeals the trial court’s determination that he made a knowing and intelligent waiver of his right to a trial by jury.

This is the second appearance of this case before this Court. In Payne v. State, 217 Ga. App. 386 (460 SE2d 297) (1995), the facts of the matter were outlined as follows: “At arraignment Payne pleaded not guilty to charges of driving under the influence of alcohol, no proof of insurance, no driver’s license, improper turn, no tag, giving a false name to a police officer and violation of the Clayton County open container ordinance. He requested that counsel be appointed to represent him. The trial court, noting that there was no likelihood of incarceration, declined to appoint counsel, informing Payne that he could retain his own attorney or represent himself. Payne appeared pro se at the subsequent bench trial and was convicted on all charges, although the no proof of insurance conviction was later set aside. He was sentenced to probation and fined. The court agreed to appoint counsel to pursue an appeal and a motion for new trial was filed, asserting, inter alia, that Payne had not expressly and intelligently waived his right to trial by jury. The trial court conducted a hearing and denied the motion for new trial noting in its order that Payne had not been denied his right to counsel, and noting generally: “ ‘The defendant had been advised at arraignment of the maximum penalties for each offense and his constitutional and statutory rights.’ ” Id. at 386-387. After failing to find specific evidence in the record, this Court vacated Payne’s convictions and remanded the matter to the trial court for an evidentiary hearing as to whether Payne knowingly and intelligently waived his constitutional right to a jury. An evidentiary hearing was conducted and the trial court determined that Payne’s waiver was knowing and intelligent. This appeal followed.

At the evidentiary hearing that occurred upon remand, it was evidenced that Payne’s right to a jury trial was explained to him at his arraignment and that he signed his accusation which expressly waived his right to a trial by jury. The evidence also reflects that Payne never expressed his desire for a jury until after his conviction. While Payne does not dispute that he was informed of his right to a jury trial, he merely states that he did not understand the right as it was explained to him. “The question of whether ... a defendant is capable or incapable of making a knowing and intelligent waiver of his rights is to be answered by the trial judge and will be accepted by this court unless such determination is clearly erroneous.” (Citations and punctuation omitted.) Reynolds v. State, 217 Ga. App. 570 (458 SE2d 855) (1995). In light of Payne’s testimony that he had received his high school diploma and attended two years of college, we do not find the trial court’s determination that Payne was aware of and understood his right to a jury trial at the time of his waiver to be clearly erroneous.

Decided December 11, 1995.

Sharon D. Bundrage, for appellant.

Keith C. Martin, Solicitor, for appellee.

Judgment affirmed.

McMurray, P. J., and Andrews, J., concur.


author: Johnson, Judge.

text:
    A95A1182.
    CHRISTOPHER INVESTMENT PROPERTIES, INC. v. COX et al.
    (465 SE2d 680)
   Johnson, Judge.

The trial court granted summary judgment against Patricia Albert, the claimant of a real estate commission, finding that this agent of Christopher Investment Properties, Inc., d/b/a Re/Max, Northwest, was not the “procuring cause” of the sale in question and therefore was not entitled to receive any commission pursuant to the residential sale of “Whitehall.” The court concluded that because Albert was not the procuring cause or a party to any valid contract to sell Whitehall, Albert’s additional claims based on conspiracy and quantum meruit had no validity.

On March 23, 1991, Susan Perkins, a real estate agent working through Coldwell Banker Residential Real Estate, Inc., entered into an exclusive agency contract with Kenneth and Sally Cox to list Whitehall, their home, for sale at $1,850,000. Pursuant to the First Multiple Listing Services (“FMLS”) agreement, the Coxes agreed to pay a real estate commission equal to eight percent of the sales price at the closing of the sale on Whitehall. FMLS published the information on Whitehall to notify all other real estate agents that the property was available for sale and that agents could earn a commission for its sale.

During mid-1991, Bill Dobbs, of the Georgia Department of Industry, Trade and Tourism, acting on behalf of Canadian resident Rudy Sagl, asked Albert to look for suitable upscale homes in the metropolitan Atlanta area. Albert prepared a notebook containing extensive information and pictures of numerous homes including Whitehall. Albert delivered the notebook to Dobbs who in turn provided it to appellee Sagl.

In November 1991, Albert personally showed Whitehall to Sagl and his wife. In early December 1991, Albert, on behalf of the Sagls, submitted a purchase offer for Whitehall. The Coxes rejected the Sagls’ offer and made a counteroffer. After the Sagls’ initial offer had been rejected, Albert again returned with the Sagls to Whitehall. In late December 1991, Albert discovered that Sagl and Cox wanted to meet to negotiate, and Albert contacted Perkins at Coldwell Banker to notify her. During the ensuing negotiations, Albert met Sagl and Cox at a hotel but at their request did not participate directly in the negotiations. Albert testified that the final purchase price mentioned during these negotiations was about $1,050,000. At some point, in late December 1991 or January 1992, negotiations on Whitehall stalled, and Albert did not actively participate in any further negotiations involving Whitehall.

From January 1992 through November 1992, Albert and her business partner continued to show homes to Sagl, his wife, other members of his family, and his agent, Jerry Florent. As late as mid-November 1992, Albert, through her partner, was still showing property to Sagl.

Without Albert’s knowledge, on November 15, 1992, Sagl and Cox again talked about Sagl’s possible purchase of Whitehall. During their negotiations, they discussed the issue of Albert’s commission. Together they may have reached an understanding that if Albert could be cut out of the loop, Cox could reduce his selling price. According to Cox’s testimony, Sagl told him Albert was in no way connected with him at this time and would not be involved in the sale at all. Cox obtained Perkins’s agreement to reduce Coldwell Banker’s commission from eight to four percent. Perkins drafted a contract to show Coldwell Banker as both the listing broker and the selling broker so that Coldwell Banker would receive the entire commission. When Albert discovered the pending sale, she immediately contacted Perkins and demanded her sales commission. She asserted a right to a commission because, “I presented the property to the purchasers, executed the first offer, stayed in constant contact with them, mentioned it to them repeatedly, never abandoned them. . . .’’In light of Albert’s claim for a commission, Perkins inserted Special Stipulation No. 4 into the final sales contract. This stipulation provides, “Purchaser and Seller agree that there should be one (1) commission paid by Seller to Coldwell Banker in the amount of four percent (4%) of sales price. If any other commission is claimed by any broker including Pat Albert, Re/Max Northwest, commission shall be paid by Purchaser.” The Sagls purchased Whitehall for approximately $950,000 in December 1992. No commission was paid to Albert.

1. Re/Max, on behalf of Albert, contends there is a genuine issue of material fact regarding whether Albert was a procuring cause of the sale. Therefore, Re/Max asserts, the trial court erred in granting summary judgment to the appellees.

Albert’s claim to an entitlement to a real estate commission is based on the exclusive listing agreement which provides for a four percent commission to the selling agent and a four percent commission to the listing agent. This listing was under FMLS. She testified she was seeking a commission as a selling agent. When a broker is unable to finalize a sale of property, a broker can attempt, nevertheless, to claim an entitlement to a sales commission for acting as the procuring cause of the sale. Generally, to qualify as the procuring cause a broker must establish that the negotiations still were pending between the prospective purchaser and the one seeking the commission and that the owner was aware that negotiations were still pending at the time the sale was consummated. Pittard Machinery Co. v. Mitsubishi Intl. Corp., 192 Ga. App. 270, 271 (2) (384 SE2d 423) (1989). Merely locating a prospect and attempting to make a sale, without more, is generally insufficient to entitle an agent to a commission. Foshee v. Harris, 170 Ga. App. 394, 396 (317 SE2d 548) (1984).

Sagl cites Parrish v. Ragsdale Realty Co., 135 Ga. App. 491 (218 SE2d 164) (1975), for the proposition that where negotiation is contemplated but not consummated and the parties in good faith break off negotiations, the broker is not entitled to a commission as a matter of law. But because the facts of Parrish are in such striking contrast to this case, Parrish is not controlling. Parrish showed a potential purchaser property which was bought nearly three years later without Parrish’s involvement. Parrish brought suit for his commission. However, in the interim, Parrish had gone into the modular construction sales business working primarily out of state, did not actively work in the real estate business, was not physically present in Georgia except on weekends and did not have an office or telephone listing for his former real estate business. Id. Construing the evidence most favorably to the party opposing summary judgment, Albert constantly remained in touch with the Sagls, submitted a written contract on the Sagls’ behalf, continued to attempt to interest the Sagls in the property and never abandoned her clients.

Similarly, we reject Sagl’s argument that Hendrix v. First Nat. Bank of Columbus, 173 Ga. App. 513 (326 SE2d 489) (1985), controls. In Hendrix, we found summary judgment proper because there was no evidence in the record that Hendrix ever discussed or negotiated terms for the purchaser or conveyed an offer. Id. at 516. Here, there is evidence that Albert introduced Whitehall to the purchasers, presented a contract to the sellers on the purchasers’ behalf and continued to try to persuade the Sagls to buy Whitehall after the initial negotiations floundered.

We also believe Kraft Land Svcs. v. Hart Co., 165 Ga. App. 358 (1) (300 SE2d 186) (1983), is factually distinguishable. In Kraft Land Svcs., the broker introduced the ultimate buyer to the land, gave the buyer information and repeatedly sought to interest the buyer; however, no negotiations ensued and no contract was offered. Id. at 363 (1). Here, unlike Kraft Land Svcs., there were negotiations, a contract was offered and Albert maintains that she continued to attempt to effectuate the sale of Whitehall.

It is Re/Max’s contention that there is evidence in the record to support Albert’s claim that Cox interfered with her effort to earn a commission. Where a broker or agent can show that he was thwarted in his efforts to consummate a sale by the interference of the property owner, he need not make the showing required by Pittard, supra, and instead can “make out a prima facie case when he shows that negotiations for the sale were set on foot through his efforts, that he performed every service required by his employment which it was possible to perform, and that the failure on his part to personally consummate the [transaction] was due to the interference of the defendant.” (Citation omitted.) Tomlin v. Bickerstaff, 85 Ga. App. 48, 51-52 (68 SE2d 224) (1951); Kraft Land Svcs., supra. Although a broker does not establish he was the procuring cause by merely showing he first located the ultimate buyer, a broker can make out a case if he can show interference by the owner and that he did not abandon his efforts to effectuate the sale. Crawley v. Sexton, 207 Ga. App. 360, 364 (1) (427 SE2d 804) (1993).

Here, the record contains evidence which would permit a jury to find that the property owner, Cox, struck a deal with Sagl to exclude Albert from the negotiations to avoid having to pay Albert a sales commission.

Because we find there are genuine issues of material fact remaining to be resolved regarding whether Albert was the procuring cause in the Whitehall transaction, we reverse the trial court’s grant of summary judgment in favor of the appellees.

2. The trial court concluded that unless Albert was the procuring cause of the sale of Whitehall, she could not recover under quantum meruit or conspiracy theories. As to the conspiracy claim, it follows that if the jury determines that Albert was the procuring cause of the sale of Whitehall, then the jury could also find there had been a conspiracy to deprive her of a commission. See Hendrix, supra at 515. On the other hand, if the jury decides Albert was not the procuring cause of the sale of Whitehall, then her claim of conspiracy must fail as a matter of law since an entitlement to a commission is a necessary element of her conspiracy claim. See Fields Realty &c. Co. v. Teper, 165 Ga. App. 28, 30 (2) (299 SE2d 74) (1983).

Decided August 25, 1995

Reconsiderations denied December 12, 1995

As to the quantum meruit claim, Sagl contends it is well settled that if a real estate agent fails to prevail on a procuring cause claim, then a claim for quantum meruit always must necessarily fall. We disagree. In Booth v. Watson, 153 Ga. App. 672 (266 SE2d 326) (1980), we upheld summary judgment on the quantum meruit claim, not because of an adverse determination of the procuring cause issue, but because the only “service” Booth rendered was a single telephone call and a follow-up letter. Id. at 677 (2). Similarly, in Income Properties v. Glass, 195 Ga. App. 127 (392 SE2d 728) (1990), we affirmed summary judgment on the quantum meruit claim, but we did so because factually the appellants were unable to make a threshold showing of services rendered and accepted. Specifically, they failed to show that there was an exclusive listing, or that any offer was made or that any negotiations ever took place between the broker and the purchaser. Id. at 129 (1).

Moreover, we have previously held that an agent could have a quantum meruit claim despite not being the procuring cause of the sale. Sharp-Boylston Co. v. Lundeen, 145 Ga. App. 672, 674 (244 SE2d 622) (1978). In Sharp-Boylston, we noted the rendering of services valuable to another, which the latter accepted, created an implied promise to pay the reasonable value thereof. We reached a similar result in Futch v. Guthrie, 176 Ga. App. 672, 673 (1) (337 SE2d 384) (1985), where we upheld the jury’s verdict in favor of two brokers for payment of their services on their quantum meruit claim even though they were not determined to have been the procuring cause of the sale.

Finally, we reach Albert’s claim for punitive damages. Whether a defendant’s actions are wilful, wanton or malicious so as to sustain a claim for punitive damages is ordinarily an issue for consideration by a jury. See Moon v. Ga. Power Co., 127 Ga. App. 524, 527 (2) (194 SE2d 348) (1972). In a case alleging punitive damages in connection with a civil conspiracy claim, this court held that the imposition of punitive damages was an issue properly reserved for jury consideration. Sikes v. Foster, 74 Ga. App. 350, 355 (39 SE2d 585) (1946), rev’d on other grounds, Foster v. Sikes, 202 Ga. 122 (42 SE2d 441) (1947).

For these reasons, we also reverse summary judgment as to the remainder of Re/Max’s claims finding there are material issues of fact remaining to be resolved.

Judgment reversed.

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

Palmer & Berman, Jeffrey N. Berman, for appellant.

Kidd & Vaughan, David N. Schaeffer, King & Croft, F. Carlton King, Jr., Thomas A. Croft, Cohen, Pollock & Merlin, Martin M. Pollock, for appellees.

Anne E. Merony, amicus curiae.


author: Andrews, Judge.

text:
    A95A1432.
    TAYLOR & MATHIS, INC. et al. v. DOYLE.
    (465 SE2d 484)
   Andrews, Judge.

We granted the application to appeal denial of their motion for summary judgment to Taylor & Mathis, Inc. (Taylor) and BET, Inc., d/b/a Southern Services (Southern), the property management and cleaning companies for an office complex. We reverse.

Viewed with all inferences in favor of Doyle, opponent to summary judgment, the evidence was that she worked for a firm located on the sixth floor of the office building managed by Taylor. Southern had the cleaning services contract for the building, and part of its responsibilities was to periodically mop the floors, including the lobby.

Doyle frequently worked evenings and left the building after normal operating hours. On previous occasions when she left after hours, she had seen the crews mopping and had seen warning signs both near the elevator bank in the lobby and elsewhere in the lobby during mopping. She knew that when they were mopping and wet floor signs were out that the tile floors were slippery and, since you could not tell from looking at the tile whether it was wet or not, she should be careful.

On Friday, February 14, 1992, Doyle was leaving the building around 7:55 p.m. As required when leaving after hours, she got off the elevator, turned to her right toward the lobby, and went to the guard desk to sign out. The sign-out book required that she go to the rear of the guard’s desk, which faced toward the exit door in the lobby. After she signed out, Doyle proceeded across the lobby toward the exit. As she walked across the lobby, she saw a man standing near the ATM machine in the corner of the lobby to her front and left. As she testified at her deposition, “I saw the cleaning man. . . . [H]e had his mop in his hand.” She said good night and happy Valentine’s Day to the mopper and waved to him with her left hand. Immediately thereafter, she fell, injuring her back. She was midway between the guard desk and the exit when she fell.

In support of their motion for summary judgment, Taylor and Southern submitted the affidavits of Stuckey and Zacholski. Stuckey was employed by Barton Security, not a party to this action, and was the guard at the desk the night Doyle fell. He was at the guard desk and stated that “I know that one such caution sign was placed close by the elevator bank, and was visible to anyone exiting the elevator.” According to Stuckey, the man mopping was 20 to 30 feet from Doyle when she fell. Attached to his affidavit and made part of it was the “Irregularity Report” filled out by him that night, noting the time as 7:56 p.m., and including the statement “[f]loor sign was in lobby near elevator.”

Zacholski was the supervisor for Southern the night of the accident. He was summoned after Doyle fell. His affidavit stated that “[o]ne sign was immediately next to the elevator bank, and in plain view of anyone who left the elevators and walked toward the security desk to sign out.”

With regard to the sign near the elevator bank, Doyle stated that “I did not see a wet floor sign there.” Further, she said “I did not see any caution, wet floor signs that night prior to the fall.”

The trial court concluded that there remained genuine issues of material facts precluding summary judgment.

1. Under the standard of Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991), the unequivocal affidavits of Stuckey and Zacholski, when considered against Doyle’s statement that she did not see any sign near the elevators, are not enough to create an issue of fact as to the existence of at least this one sign. “ ‘In passing upon a motion for summary judgment, a finding of fact which may be inferred but is not demanded by circumstantial evidence has no probative value against positive and uncontradicted evidence that no such fact exists. When uncontradicted and unimpeached evidence is produced as to the real facts, the inference disappears, and does not create a conflict in the evidence so as to require its submission to a jury.’ [Cit.]” Lea v. American Home Equities, 210 Ga. App. 214 (1) (435 SE2d 734) (1993); Stockstill v. Prime Foods System, 216 Ga. App. 192, 193 (1) (453 SE2d 784) (1995).

2. “ ‘The slip and fall cases involving foreign substances are inapplicable in an instance where the plaintiff alleges that she fell because of the slippery wax, oil, or other finish that defendant (has) placed on the floor. Because the defendant applied or authorized the application of the floor treatment, he is presumed to have knowledge of its existence. [Cit.] In this type of case the plaintiff may make out a cause of action by showing an act or omission on the part of the defendant which was the proximate cause of his injury and which could not have been avoided by the plaintiff through the exercise of ordinary care. [Cit.]’ Alterman Foods v. Ligon, 246 Ga. 620, 623-624 (272 SE2d 327) [(1980)].” Lindsey v. J. H. Harvey Co., 213 Ga. App. 659, 660 (445 SE2d 810) (1994).

The fact that Doyle did not see the warning sign near the elevator bank does not create a material issue of fact. She stated that she was not distracted by anything as she walked from the elevators; she merely did not see the sign. Stockstill, supra; Adams v. Winn-Dixie Stores, 192 Ga. App. 892, 893 (386 SE2d 686) (1989). Such a sign, even if the only one, when placed near the bank of elevators from which users of the building exit into the lobby, constituted reasonable and ordinary care on the proprietor’s part. Stockstill, supra; Adams, supra. Compare Broomberg v. Hudgens, 206 Ga. App. 797, 800 (3) (426 SE2d 617) (1992).

Doyle did, however, see the cleaning man holding his mop near the ATM machine. She was close enough to him to engage in a casual greeting with him and to wave. She knew he was mopping. That there was no sign in the immediate vicinity of her fall is not enough, in itself, to create a material issue of fact necessitating a jury trial. Stockstill, supra; Lindsey, supra; Winn-Dixie Atlanta v. Bianco, 204 Ga. App. 292 (418 SE2d 819) (1992).

3. Doyle argued in her opposition to summary judgment statements she said were made by an unidentified woman who appeared on the scene after she fell which indicated the wet floor signs were on the fourth floor.

On summary judgment, “ ‘ “(e)videntiary rules regarding the admissibility ... of evidence are applicable in a summary judgment proceeding.” . . . (H)earsay evidence is without probative value and (cannot be) considered . . . unless it is part of the res gestae.’ [Cit.] Yet, once the party moving for summary judgment has made out a prima facie case, as was done by movants in this case, the burden of proof shifts to the opposing party who must come forward with rebuttal evidence or suffer judgment against it.” Strickland v. DeKalb Hosp. Auth., 197 Ga. App. 63, 65 (2) (a) (397 SE2d 576) (1990). See, e.g., Fuller v. Charter South, 216 Ga. App. 211, 213 (2) (453 SE2d 754) (1995); Medley v. Boomershine Pontiac-GMC Truck, 214 Ga. App. 795, 796 (1) (449 SE2d 128) (1994).

What was observed by someone, even an unidentified employee of a party, after the accident, is not part of the res gestae and is not admissible. Holmes v. MARTA, 200 Ga. App. 172, 174 (407 SE2d 124) (1991); Hall v. Rome Auto. Co., 181 Ga. App. 621, 622 (2) (a) (353 SE2d 542) (1987). Therefore, Taylor and Southern were entitled to summary judgment.

Judgment reversed.

McMurray, P. J., and Blackburn, J., concur in the judgment only.

Decided November 22, 1995

Reconsideration denied December 12, 1995

Bodker, Ramsey & Andrews, Harry J. Winograd, David J. Maslia, for appellants.

Feldman & Associates, Monroe J. Feldman, Douglas R. Sandberg, for appellee.

       While Zacholski stated that there were additional signs posted around the lobby, since Doyle states there was none in the area of her fall, we disregard evidence of any other signs.


author: Smith, Judge.

text:
    A95A1994.
    JONES v. BOARD OF REGENTS OF THE UNIVERSITY SYSTEM OF GEORGIA.
    (466 SE2d 869)
   Smith, Judge.

Manuel Jones became indebted to appellee Medical College of Georgia Hospital (“hospital”) in the amount of approximately $45,000 for various medical services he received between July 31, 1986 and January 11, 1987. The debt became due and payable no later than January 11, 1987. In October 1986, Manuel Jones conveyed a tract of land in excess of 300 acres in Telfair County to Joseph Jones. Manuel Jones died on August 8, 1990, and John Mclver was appointed executor of his estate.

On January 28, 1994, the hospital brought this action against Joseph Jones and John Mclver to recover the debt incurred by Manuel Jones; the hospital also sought cancellation of the October 1986 conveyance, alleging the conveyance was fraudulent. Jones moved for summary judgment below on the ground that the action was barred by the statute of limitation. The trial court denied the motion, finding the four-year statute of limitation had been tolled because evidence existed that Manuel Jones had misrepresented his assets when applying for services at the hospital in order to obtain services as a charity patient. We granted Jones’s application for interlocutory appeal.

1. An action on account must be brought within four years from the time the right of action accrues. OCGA § 9-3-25. It is undisputed this action was brought more than four years after Manuel Jones’s debt became due and payable. We must determine whether fraud tolled the statute of limitation.

Evidence exists that while Manuel was being treated by the hospital, two “information data cards” were completed indicating that Jones had annual income of $.01. The cards also indicate that this amount was not verified. Evidence also exists that Annie Jones, Manuel’s wife, signed an assistance analysis form on September 3, 1987, indicating ownership of land valuing $13,042.50 and showing no assets in the form of houses, farms, machinery, etc. The assistance analysis form was incomplete, because it did not indicate whether the Joneses owned or rented their home. John Mclver averred below that from the time of his treatment in 1986 until his death in 1990, Manuel Jones owned approximately 315 acres of land worth greater than $100,000. He also stated in his affidavit that the information contained on the assistance analysis form was not true — that Manuel owned a house and farm machinery until his death and received income from the sale of turpentine and annual rental payments for tobacco and peanut allotments.

“Fraud which tolls the statute of limitations must be such actual fraud as could not have been discovered by the exercise of ordinary diligence, in the absence of any confidential relation.” (Citations and punctuation omitted.) Gerald v. Doran, 169 Ga. App. 22, 23 (311 SE2d 225) (1983). Such fraud must be that which “concealed] a cause of action” (citations and punctuation omitted) Blalock v. Anneewakee, Inc., 206 Ga. App. 676, 679 (426 SE2d 165) (1992), or “debarred or deterred” a plaintiff from bringing an action. OCGA § 9-3-96; Rigdon v. Barfield, 194 Ga. 77, 82 (20 SE2d 587) (1942). There is no doubt the hospital knew Manuel Jones was indebted to it for a substantial sum on January 11, 1987. As in Rigdon, supra at 82, the hospital has alleged no conduct by Manuel that “lulled [it] to sleep” regarding bringing an action against Manuel or his estate on the debt. The record does not suggest that Manuel committed any act or omission causing the hospital to believe it had no right of action on the debt or preventing the hospital from bringing the action. The hospital may have thought judgment against Jones might be difficult to collect, but that does not change the fact that on January 11, 1987, the hospital had a right of action for collection of the debt.

Moreover, even if Manuel misrepresented his assets, the record does not suggest the hospital acted with reasonable diligence to discover the facts or to attempt to verify the information obtained from Manuel or his wife during the four years following January 11, 1987. See Rigdon, supra at 82; Gerald, supra at 23. A plaintiff cannot “sit quietly by for a length of time exceeding that named in the statute of limitations, and avoid its operation and save [its] cause of action by the mere allegation that [it] made the discovery” only recently. Rigdon, supra at 82.

There is no evidence that the hospital was prevented from knowing it had a cause of action on the debt and bringing an action on it. The hospital brought its action on the debt outside the four-year statute of limitation, and the trial court should have ruled the action barred.

2. Because of our holding in Division 1, the hospital’s claim for cancellation of the 1986 conveyance must also fail. “[Wjhere the debt is barred, equity will not proceed to make the vain and empty gesture of setting the conveyance aside, or of attempting to subject the property to such barred debt. The right to equitable relief in such instances is dependent upon the right to enforce the debt. [Cit.]” Remington-Rand, Inc. v. Emory Univ., 185 Ga. 571 (2) (196 SE 58) (1938).

Decided November 27, 1995

Reconsideration denied December 12, 1995

W. McMillan Walker, George L. French, for appellant.

Michael J. Bowers, Attorney General, Newton, Smith, Durden, Kaufold & Rice, Wilson Smith, for appellee.

3. Appellant’s remaining enumeration is moot.

Judgment reversed.

Birdsong, P. J., and Johnson, J., concur.


author: Ruffin, Judge.

text:
    A95A0940.
    A95A0941.
    SWAN v. JOHNSON. JOHNSON v. ATHENS-CLARKE COUNTY.
    (465 SE2d 684)
   Ruffin, Judge.

Annie B. Johnson sued the Unified Government of Athens-Clarke County (“the unified government”) and William Swan for the death of her five-year-old son who drowned in a swimming pool owned and operated by the unified government through its recreation department. Swan was employed by the unified government as a lifeguard at the pool, and there is no dispute that he was on duty when Johnson’s son drowned. In Case No. A95A0940, Swan appeals the denial of his motion for summary judgment, and in Case No. A95A0941, Johnson appeals the trial court’s grant of summary judgment to the unified government on the basis of sovereign immunity.

Case No. A95A0940

1. Swan contends the trial court erred in denying his motion for summary judgment because Johnson’s amended complaint adding him as a defendant did not relate back to the date of her original complaint; thus, her claim against him was barred by the statute of limitation. We agree.

The record shows that on November 13, 1992, Johnson filed her complaint against the unified government and Lonnie Dickerson, the head of the unified government’s recreation department. On February 3, 1993, Johnson identified Swan as one of the lifeguards who had acted in a negligent manner in connection with her son’s death. On June 15, 1993, fifteen days before the statute of limitation expired, Johnson moved to add Swan as a defendant pursuant to OCGA §§ 9-11-15 and 9-11-21. On July 28, 1993, after the expiration of the limitation period, the trial court granted the motion to amend. In its order, the court found that the provisions of OCGA § 9-11-15 (c) had been “substantially met” and that the amendment related back to the date of the original lawsuit.

In Cobb v. Stephens, 186 Ga. App. 648 (368 SE2d 341) (1988), however, we recognized the “requirement that there be a strict adherence to the letter of OCGA § 9-11-15 (c) by the one who would rely upon it as authority for the addition of a new party to an existing action. In A. H. Robins Co. v. Sullivan, 136 Ga. App. 533 (221 SE2d 697) (1975), this court held that OCGA § 9-11-15 (c) may authorize the addition of a new party defendant and a relation back as to that new defendant, but only if the three elements which are specifically enumerated in that provision have first been satisfied. Those three elements are: (1) That the amendment adding the new defendant arise out of the same facts as the original complaint; (2) That the new defendant had sufficient notice of the action; and, (3) That the new defendant knew or should have known that, but for a mistake concerning his identity as a proper party, the action would have been brought against him.” (Emphasis in original.) Id. at 649-650; Doyle Dickerson Tile Co. v. King, 210 Ga. App. 326 (436 SE2d 63) (1993). “All three elements must be satisfied to invoke the relation-back provisions of OCGA § 9-11-15 (c). [Cit.]” Id. at 328.

Accordingly, Swan had the burden on summary judgment to demonstrate that at least one of the three requirements of OCGA § 9-11-15 (c) was not satisfied. This he did by filing an affidavit stating that he was not aware he had not been named in the original suit because of a mistake in his identity and that he did not know how any mistake could have been made as to his identity as an actual or potential party to the litigation because Lonnie Dickerson had never been employed as a lifeguard and Swan had never been employed by the unified government in any capacity but a lifeguard. “This shifted the burden to [Johnson] to show the applicability of the relation-back provisions of OCGA § 9-11-15 (c). [Cits.] There is nothing in the record which responds to or contradicts [Swan’s] [affidavit]. On the present record, [therefore, Swan has] demonstrated, as a matter of law, that at least one of the three elements of OCGA § 9-11-15 (c) has not been satisfied, and that the relation-back provisions do not apply.” Id.

That being the case, Swan was entitled to summary judgment because he was not added to the lawsuit prior to the expiration of the statute of limitation. Id. Consequently, the trial court erred in denying his motion on this issue.

2. Given our holding in Division 1, we need not address Swan’s remaining enumeration of error.

Case No. A95A0941

In granting summary judgment to the unified government, the trial court ruled that under the 1991 Amendment to the State Constitution, Art. I, Sec. II, Par. IX and the Georgia Tort Claims Act (OCGA §§ 50-21-20 to 50-21-37), counties have not waived their sovereign immunity and will retain immunity until it is waived by an act of the General Assembly.

3. Johnson contends the trial court erred in granting the unified government summary judgment on the basis of sovereign immunity, arguing that the unified government is not entitled to the defense because it is a corporate and political entity which is neither the State nor a department or agency of the State. We disagree.

As a preliminary matter, we do not find it necessary to outline the evolution of sovereign immunity in this state or the General Assembly’s intent in passing the 1991 Amendment to the State Constitution and the Georgia Tort Claims Act given the Supreme Court’s detailed discussion of these subjects in Gilbert v. Richardson, 264 Ga. 744 (452 SE2d 476) (1994). We then turn to the merits of Johnson’s argument. The General Assembly has determined that for the purposes of tort liability, “the unified government shall follow the law and rules of tort liability applicable to Counties in Georgia.” Ga. L. 1990, p. 3614, § 8-103. In Richardson, supra, the Supreme Court held that absent any evidence of a contrary legislative intent, sovereign immunity extends to counties under the 1991 constitutional amendment. That decision also recognized that although the Tort Claims Act waives sovereign immunity for the torts of officers and employees of the State, counties are expressly excluded from the ambit of the waiver. Id. at 747; OCGA § 50-21-22 (5). Because the General Assembly has not waived the immunity of counties, the trial court did not err in ruling that Johnson’s claim against the unified government was barred by sovereign immunity. See Richardson, supra.

4. Johnson contends the operation of a swimming pool is not a governmental function entitled to the protection of sovereign immunity. This argument was decided adversely to her in Rainey v. City of East Point, 173 Ga. App. 893, 894 (328 SE2d 567) (1985).

5. Johnson also contends the exclusion of counties from the definition of the “State” under OCGA § 50-21-22 (5) denies individuals injured by the acts of a county equal protection of the law. This argument has likewise been decided adversely to her. See Woodard v. Laurens County, 265 Ga. 404 (1) (456 SE2d 581) (1995).

6. Finally, Johnson contends that the unified government has purchased liability insurance coverage and that it was not the intent of the General Assembly to extend the protection of sovereign immunity to insurance companies. Assuming without deciding that sovereign immunity was not meant to protect private, for-profit insurance companies, the remedy in such a situation is found in OCGA § 33-24-51 (b) which provides in part that when a county or any other political subdivision of the state purchases liability insurance, its “governmental immunity shall be waived to the extent of the amount of insurance so purchased.” Yet Johnson did not raise OCGA § 33-24-51 below and we cannot evaluate its applicability for the first time on appeal. See Wayne County v. Herrin, 210 Ga. App. 747 (4) (437 SE2d 793) (1993). For the foregoing reasons, the trial court did not err in granting the unified government summary judgment.

Decided October 11, 1995

Reconsideration denied December 13, 1995

McLeod, Benton, Begnaud & Marshall, Andrew H. Marshall, for Swan & Athens-Clarke County.

I. Kenneth Dious, Sherry J. Locklin, for Johnson.

Judgment affirmed in Case No. A95A0941 and reversed in Case No. A95A0940.

Beasley, C. J., and Pope, P. J., concur.


text:
    A95A0997, A95A1001.
    TORRINGTON COMPANY v. HILL et al. (two cases).
    (465 SE2d 447)
   Ruffin, Judge.

Billy Hill died when the walls of a trench in which he was working collapsed. At the time of the accident, Hill was an independent contractor working with Harold Zeigler d/b/a H & D Backhoe Service (“H & D”). H & D was hired by the Torrington Company (“Torrington”) to dig a trench and install pipe on Torrington’s property. In Case No. A95A0997, Hill’s widow sued both H & D and Torrington for negligence, and in Case No. A95A1001 she sued only H & D, who later filed a third-party complaint against Torrington for contribution. The trial court denied Torrington’s motions for summary judgment in both actions, and we granted Torrington’s application for interlocutory review. Because we find that Torrington was entitled to summary judgment in both actions, we reverse.

“ ‘On motion for summary judgment, “the party opposing the motion is to be given the benefit of all reasonable doubts and all favorable inferences that may be drawn from the evidence. [Cits.]” [Cit.]’ [Cit.]” Brooks v. Oil-Dri Corp. of Ga., 205 Ga. App. 214, 215 (422 SE2d 22) (1992). Viewed in that light, the evidence shows that Torrington first hired H & D to perform trenching work in 1988. Prior to beginning work on that project, Torrington obtained a health and safety plan prepared by Atlanta Environmental Management, Inc. (“AEM”)- In a letter dated June 20, 1988, from AEM to Bruce Peake, a Torrington engineer who oversaw the 1988 project, AEM stated that “[a] copy of [the safety plan] should be given to the contractor along with an explanation of the meaning of this plan. ... Of particular importance are the regulations regarding shoring of excavated areas and the inherent dangers therein. At a minimum, the dangers involved in trench work [include] . . . possible collapse of cut walls. . . . The health and safety plan states specifically that all individuals involved with the project will be notified that no one is to enter the trench at any time or for any reason.” Similarly, a June 22, 1988 memo from AEM to Peake stated that “[a] [H]ealth and Safety Plan is integral to the safety of the work. . . . All workers involved with the project and the construction manager need to read the [plan] and sign a sheet verifying this fact.” While it is undisputed that Torrington never furnished H & D or its workers with a copy of the safety plan, Zeigler admitted in his deposition that in 1988, Torrington warned H & D that “[t]here was not supposed to be anybody in the ditch . . . [and that] [t]here was no excuse to get in the ditch . . . [because] [tjhere’s always a chance of a cave-in.” It is also undisputed that Zeigler knew there was a cave-in on the 1988 project.

Torrington hired H & D to do trenching work at an undetermined time after the 1988 project was completed and again in 1992. The 1992 project, during which Hill’s accident occurred, required H & D to dig a trench, lay some piping, and connect the piping to a well casing. H & D understood that for the 1992 project, it was to provide all the labor and equipment, including safety equipment, and to supervise the construction. Zeigler testified in his deposition that he had no expectation that Torrington was going to tell them how to do the job and that he had no discussions with Torrington concerning safety measures on the job. He further testified that they did not need much safety equipment; “[w]e had the equipment on the way to do the job, and we wasn’t supposed to be in the ditch. . . .” Zeigler hired Hill to lay the pipe.

A Torrington representative visited the site the day before the accident, which was when Zeigler and Hill started digging the approximately ten-foot-deep trench. The morning of the accident, Zeigler and Hill discussed two different options for connecting the pipe to the well casing. They could either go into the trench and connect the pipe from outside the well or borrow a ladder, climb down into the well, and connect the pipe from inside the well. Zeigler and Hill discussed whether there was any danger or risk of a cave-in in going into the trench, and although they believed there could be a cave-in, they decided to go into the trench. Although Zeigler remembered that Torrington told them not to go into the ditch, he and Hill did not discuss Torrington’s admonition. No one else took part in the decision, and Torrington was not aware that Hill would be going into the trench. After the discussion, Zeigler lowered Hill into the trench to connect a pipe to the well casing. After Hill connected the pipe, the walls of the trench caved in and killed him.

Zeigler stated in his affidavit that if Torrington had given him a copy of the 1988 safety plan, he would have followed the guidelines regarding shoring the trench. However, an AEM representative stated in his affidavit that the 1988 safety plan did not apply to the 1992 trenching project, that it was his understanding that Torrington exercised no control over the time, manner, and method of work done by Zeigler, and that the work being performed by Zeigler did not require entry into the trench by workers.

1. No factual issues remain concerning Torrington’s liability, as the property owner, to Hill or H & D. “Before the owner of premises can be held liable for injuries done by reason of a defect therein to one lawfully on the premises in the employ of an independent contractor engaged by the owner to perform services on the premises, it must appear that the owner had control of the premises.” (Citations and punctuation omitted.) Id. at 215-216. “ ‘An individual contractor is expected to determine for himself whether his place of employment is safe or unsafe, and ordinarily may not recover against the owner for injuries sustained in the performance of the contract. [Cits.]’ [Cit.]” Id. at 216. While Zeigler contended in his affidavit that Torrington did not give H & D exclusive control of the work site, the only evidence he presented in support of that contention was that Torrington employees appeared at the site “for various reasons including to inspect the job.” The fact that Torrington employees appeared at the site, however, does not prove that Torrington exercised control over the manner in which H & D did the work. “ ‘There must be such a retention of a right of supervision that the contractor is not entirely free to do the work in his own way.’ [Cit.]” Englehart v. OKI America, 209 Ga. App. 151, 152 (1) (a) (433 SE2d 331) (1993).

In this case, Zeigler admitted that H & D was responsible for providing all labor and equipment, including safety equipment, and for supervising the construction. Zeigler further admitted that he had no expectation that Torrington was going to tell them how to do the job and that he had no discussions with Torrington concerning safety measures on the job. The fact that Zeigler and Hill, without the presence or assistance of a Torrington representative, decided how to connect the pipe is further evidence that H & D was free to do the work its own way. “ ‘The evidence is clear that the premises were “surrendered” to [H & D], that [H & D’s] status as an independent contractor was not “interfered” with by [Torrington], that the duty of providing for the safety of workers was accordingly upon [H & D], and that no such duty was owed by [Torrington]. [Cits.]’ [Cit.]” King v. Midas Realty Corp., 204 Ga. App. 590, 591 (420 SE2d 62) (1992).

Decided October 26, 1995

Reconsideration dismissed December 13, 1995 and Reconsideration denied December 13, 1995

Painter, Ratterree & Bart, R. Clay Ratterree, James L. Elliott, for appellant.

2. Similarly, we find no merit in Hill’s contention that Torrington is liable for the alleged negligence of H & D because Torrington had a nondelegable duty, imposed by OCGA § 51-3-1, to keep the premises and approaches safe. See OCGA § 51-2-5 (4). “[I]t is the longstanding rule in Georgia that a property owner can delegate the responsibility of maintaining a safe workplace by relinquishing possession and control of the property to an independent contractor. [Cits.]” Englehart, supra at 153. Since we concluded in Division 1 that Torrington surrendered possession of the work site to H & D, we conclude here that the trial court should have granted summary judgment to Torrington on Hill’s claims that Torrington is vicariously liable for the alleged negligence of H & D. See id.

3. There is no evidence showing that Torrington could be liable to Hill or H & D because it had superior knowledge of the existence of a hazard on the property. The record does not support Hill’s and H & D’s contention that because Torrington never provided them with a copy of the 1988 safety plan, it had superior knowledge that the trenches needed to be shored to prevent a cave-in. We found no evidence controverting the AEM representative’s affidavit testimony that the 1988 safety plan did not apply to the 1992 trenching project. Moreover, even if Hill and H & D could have shown that the 1988 safety plan was applicable, the evidence shows that Zeigler knew that nobody should enter the trench because of the risk of a cave-in and that he and Hill discussed this risk. It follows that Torrington did not have superior knowledge of the risk of a cave-in. See Brooks, supra.

Finally, the fact that Hill and Zeigler decided to enter the trench with full knowledge of the risks precludes recovery against Torrington. “ ‘Assumption of risk in its simplest and primary sense means that the plaintiff has given (his) express consent to relieve the defendant of an obligation of conduct toward (him) and to take (his) chance of injury from a known risk. The result is that the defendant is simply under no legal duty to protect the plaintiff. [Cits.]’ [Cit.]” Englehart, supra at 154.

Judgment reversed.

Beasley, C. J., and Pope, P. J., concur.

Allgood, Childs, Mehrhof & Millians, Richard R. Mehrhof, Jr., Thompson & Smith, James M. Thompson, Larry I. Smith, for appellees.


text:
    A95A1274.
    A95A1275.
    HIBBS et al. v. CITY OF RIVERDALE. BROWN v. CITY OF RIVERDALE.
    (465 SE2d 486)
   Ruffin, Judge.

These companion cases involve drainage problems encountered by James and Vicki Hibbs and Cynthia Brown who purchased homes on neighboring lots in a subdivision developed by Hooker Barnes Homes (“the developer”) in the City of Riverdale. After repeated flooding of their homes, the Hibbs and Brown sued the city for damages and injunctive relief. The complaints alleged the city negligently approved both the developer’s plans for and the actual construction of the subdivision’s faulty storm drainage system and had maintained the nuisance resulting from that system. The evidence showed that in accordance with the city’s subdivision regulations, the city engineer evaluated the developer’s proposed construction plans and sent his comments and suggestions about the drainage system to the Director of Public Works, Ron Gossett. Gossett sent the comments and suggestions to the developer for revisions. After the developer revised the plans Gossett did not forward the revisions to the city’s engineers as is the city’s policy. Instead, in an attempt to “speed up the process,” Gossett relied on the developer to confer with the city’s engineers.

The trial court granted the city’s motion for summary judgment with respect to the plaintiffs’ claims for negligence, nuisance, and trespass and denied the plaintiffs’ respective motions for partial summary judgment. These rulings are appealed by the Hibbs in Case No. A95A1274 and by Brown in Case No. A95A1275. For reasons which follow, we affirm.

1. The Hibbs and Brown contend the trial court erred in granting summary judgment on their nuisance claims. We disagree.

Citing Mayor &c. of Savannah v. Palmerio, 242 Ga. 419 (249 SE2d 224) (1978), the trial court ruled that in order for the city to have a duty to abate the nuisance, it must have accepted the developer’s dedication of the drainage easement; that there was no evidence the city exercised any control over the drainage system so as to create an implied acceptance of the easement; and that the Hibbs’ nuisance claim therefore failed.

A city can be liable for its approval of construction projects which give rise to a nuisance resulting from flooding. City of Columbus v. Myszka, 246 Ga. 571 (1) (272 SE2d 302) (1980). This is because “[a] municipal corporation, like any other individual or private corporation, may be liable for damages it causes to a third party from the operation or maintenance of a nuisance. ... To be held liable for maintenance of a nuisance, the municipality must be chargeable with performing a continuous or regularly repetitious act . . . and if the municipality did not perform an act creating the dangerous condition, the failure of the municipality to rectify the dangerous condition must be in violation of a duty to act. (Cits.) ... In a surface-water invasion case, the continuing invasions amount to a continuing trespass which is the equivalent of a continuing nuisance. [Cit.] If the city claims a right to use the drainage (system) then it is under a duty to maintain it so that the content and flow of surface waters (do) not overflow to the damage of the adjacent property owners. (Cit.) [Cits.]” (Punctuation omitted.) Columbus, Ga. v. Smith, 170 Ga. App. 276, 281 (316 SE2d 761) (1984).

On appeal, both sides devote numerous pages in their briefs to the issue of whether the city impliedly accepted the developer’s dedication of the drainage system. But we need not address whether there was an express acceptance of the land and drainage system as indicated on the Final Plat signed by the city or an implied acceptance by virtue of the many actions taken by the city evidencing its control over the project, including requiring the developer to post a maintenance bond and its inspections of and revisions to the plans for the drainage system. See, e.g., Bryant v. Kern & Co., 196 Ga. App. 165 (1) (395 SE2d 620) (1990). This is because the fundamental allegation in the plaintiffs’ complaints is that the city created a nuisance as a result of its negligent approval and control of the developer’s plans for a faulty storm drainage system. “If the act, omission, or defect alleged to constitute a nuisance is merely negligence, no matter how egregious the result, the municipality will not be liable for damage suffered.” (Citations and punctuation omitted.) City of Lawrenceville v. Macko, 211 Ga. App. 312, 316 (3) (439 SE2d 95) (1993). Thus, assuming the city accepted the drainage system and was therefore responsible for its maintenance, the crux of the plaintiffs’ complaints is negligence, “and negligence is insufficient to support a cause of action for nuisance. [Cit.]” Id. at 317. “A grant of summary judgment must be affirmed if it is right for any reason. [Cit.]” Young v. Faulkner, 217 Ga. App. 321, 325 (3) (457 SE2d 584) (1995).

2. The Hibbs and Brown also contend the court erred in failing to recognize the city’s liability for trespassing upon their property. But this enumeration is not supported by argument or citation of legal authority and it is therefore deemed abandoned. Court of Appeals Rule 27 (c) (2).

3. The Hibbs and Brown enumerate as error the trial court’s application of the public duty doctrine to their nuisance claim, contending the doctrine is inapplicable to such claims. The court’s order, however, demonstrates that it applied the doctrine to the plaintiffs’ negligence claim, and the complaints themselves belie any argument that the plaintiffs’ actions did not sound in negligence. Thus, this enumeration is without merit.

Decided November 27, 1995

Reconsideration denied December 13, 1995

James A. Eidson, for appellants.

Drew, Eckl & Farnham, Theodore Freeman, Nena K. Puckett, Foster & Foster, Larry A. Foster, D. Jeffrey Grate, for appellee.

4. The Hibbs and Brown contend the trial court erred in denying their motions for partial summary judgment. However, they do not specify the issues raised in their motions and fail to support this enumeration with argument or citation of legal authority. Thus, this enumeration presents nothing for our review.

5. The Hibbs and Brown contend they are entitled to equitable relief from the nuisance. Although an injunction against the city was requested in their complaints, the record does not reveal that such equitable relief was sought after the complaints were filed, and the court’s order which is appealed does not address equitable relief. Accordingly, this enumeration presents nothing for review.

Judgments affirmed.

Beasley, C. J., and Pope, P. J., concur.


text:
    A95A0922.
    ROBY et al. v. KROGER COMPANY.
    (465 SE2d 496)
   McMurray, Presiding Judge.

This is a rainy day slip and fall case. Plaintiff Teresa Roby was driven to a shopping center and dropped off at a covered walkway. After returning a movie to a video store, plaintiff proceeded along the covered walkway to a grocery store operated by defendant Kroger Company. When she entered defendant’s store, Teresa Roby noticed that there was a trail of water leading to where the grocery baskets were stored. In order to avoid the water, Teresa Roby took a semicircular path to approach the grocery baskets. After she had turned back towards the grocery baskets and as she approached to about three feet from them, she slipped and fell. After she fell, Teresa Roby felt water on her leg and ankle and noticed that it had the smell of rainwater. She also saw water dripping off nearby grocery baskets.

Teresa Roby and her husband James Roby filed this action for damages against defendant. Teresa Roby seeks damages for her injuries, and her husband seeks damages for loss of consortium. These plaintiffs filed this appeal from the grant of defendant’s motion for summary judgment. Held:

Decided November 29, 1995

Reconsideration denied December 14, 1995

Robert S. Windholz, for appellants.

Webb, Carlock, Copeland, Semler & Stair, Douglas A. Wilde, Todd M. Yates, for appellee.

Plaintiffs present essentially the same argument as that addressed in Hagin v. Winn-Dixie Stores, 180 Ga. App. 303 (348 SE2d 766), that the general rules applicable to rainy day slip and fall cases should be distinguished because the injured plaintiff fell due to water dripping from shopping carts and not from water tracked in from the outside. We find the present case indistinguishable from this precedent and repeat that these cases turn on the fact that when it rains, the ordinary person is aware that water is apt to be found in any area frequented by people coming in from the rain outside. As in Hagin, the injured plaintiff knew of the rain, and reasonable steps were taken by defendant to keep the rainwater mopped up. Indeed, the specific area where Teresa Roby fell had been inspected less than ten minutes before and observed to be clean and dry. See also Chafin v. Winn-Dixie Atlanta, 201 Ga. App. 209 (411 SE2d 64).

Judgment affirmed.

Andrews and Blackburn, JJ., concur.