author: Smith, Judge.

text:
    A99A0837.
    FRANCHELL et al. v. CLARK et al.
    (524 SE2d 512)
   Smith, Judge.

After an automobile collision, Ernie Franchell and Maureen Franchell as next friends of Kelly Franchell, a minor child, brought a personal injury action against Gary Lee Clark, the driver of the other vehicle, and against Eddy Arnold Clark under the family purpose doctrine. Asserting the defense of insufficient service, the Clarks moved for dismissal of the complaint. After the trial court granted that motion, the Franchells appeal. Because we find that the trial court did not abuse its discretion in dismissing the complaint, we affirm.

Nearly two years after a collision occurring in December 1991, the Franchells filed suit in the Superior Court of DeKalb County. On June 26, 1996, they dismissed their complaint without prejudice but then refiled it in the Superior Court of Fulton County. After the Franchells complained of problems with accomplishing service, the court appointed Tommy L. Piner as a special process server. Nearly three months after Piner’s appointment as special process server, Piner testified by affidavit that Gary Clark would not accept service and had been avoiding contact with him. Consequently, on December 12, 1996, the court directed that Gary Lee Clark, who “has concealed himself to avoid service,” be served by publication. In a return of service document, Piner averred that on December 18, 1996, he personally served the complaint and summons “while Gary Lee Clark was sitting in his vehicle in front of 244 North Main Street, Alpharetta, Georgia.”

Two consent orders entered in late May 1997 disclose that the parties reached an agreement to open default, to extend discovery, and to preserve for the defendants “a full right to raise any and all defenses and to defend on any and all issues of liability and damages in this case.” Less than a month later, the Clarks moved to transfer the case. In their motion to transfer, the Clarks asserted that “ [a] t the time that plaintiffs’ complaint was filed, defendant Gary Lee Clark resided in Hall County, Georgia. Also at the time that plaintiffs’ complaint was filed, defendant Eddy Arnold Clark resided in Clayton County, Georgia.”

After the case was transferred to Hall County, the court conducted a pretrial conference. When the trial court inquired as to the existence of any outstanding motions, defense counsel outlined the nature and contents of a motion to dismiss predicated on insufficiency of service and expiration of the statute of limitation. Counsel averred that he advised the court in the presence of plaintiffs’ counsel that he intended to present the testimony of the Clarks at the upcoming motion hearing. Subsequently, the court scheduled a hearing for May 13, 1998.

At the commencement of the motion hearing, the Franchells objected to the use of live witnesses without prior notice or order from the court. Despite the objection, the court refused to grant a continuance and permitted the Clarks to testify. After hearing their testimony and upon reviewing the affidavits submitted on behalf of the Franchells, the court dismissed the complaint. In granting the motion to dismiss, the court found “not only clear and convincing evidence, but evidence of the strongest nature which the case will admit that the Defendants have not been served with process.”

1. The Franchells contend the trial court erred in granting the Clarks’ motion to dismiss without first giving notice that the court intended to permit live testimony at the motion hearing. They claim that by considering such evidence the trial court converted the motion to a motion for summary judgment and then failed to comply with the 30-day notice requirement of OCGA § 9-11-56 (c).

When a court considers matters outside the pleadings in reaching the merits of a motion to dismiss for insufficient process or insufficient service of process, the motion is not thereby converted to one for summary judgment. Church v. Bell, 213 Ga. App. 44, 45 (443 SE2d 677) (1994). Consequently, to the extent that the court in this case considered the testimony of the witnesses, it did so under OCGA § 9-11-43 (b) and not OCGA § 9-11-56. Id.

Despite the claim to the contrary, nothing in OCGA § 9-11-43 (b) precludes a court from considering oral testimony at a hearing on a motion to dismiss for insufficient service. In fact, this subsection provides in pertinent part, “When a motion is based on facts not appearing of record, the court may hear the matter on affidavits presented by the respective parties, but the court may direct that the matter be heard wholly or partly on oral testimony or depositions.” OCGA § 9-11-43 (b). Plainly, the statute affords the court the option to decide the matter by affidavit or deposition testimony or to decide the motion on the basis of oral testimony. See Pleats, Inc. v. OMSA, Inc., 211 Ga. App. 643, 645 (3) (a) (440 SE2d 214) (1994). The Franchells cite no authority, and we know of none, that requires a court to specify before the hearing whether the court will rely solely on written testimony submitted by affidavits or depositions or will consider testimony presented at the hearing.

Moreover, to afford a proper basis for review of an asserted error, the complaining party must make a proffer below outlining what the omitted testimony would have been and that such testimony would have been beneficial. See Zohbe v. First Nat. Bank, 162 Ga. App. 604, 605 (2) (292 SE2d 444) (1982). Although the Franchells claim that they were prevented from presenting live testimony at the motion hearing, they have failed to make a proffer of evidence and to explain how such evidence would have assisted in resolving the controversy about the perfection of service. They therefore have not provided a proper basis for review. See id.

2. The Franchells contend the trial court erred in granting the motion to dismiss after they objected to the court’s refusal to allow them to present live witnesses.

It is undisputed that the Clarks’ motion to dismiss for lack of personal service was filed on March 26, 1998. In this motion, the Clarks asserted that they “have never been personally served with a copy of the suit papers.” Based, then, on the Clarks’ affidavits as well as the contents of this motion, the Franchells were plainly apprised that the Clarks were disputing personal service. Then, on April 1, 1998, nearly a month and a half before the date set for the hearing on the motion to dismiss, the court sent notice that advised that “Defendants’ Motion to Dismiss is hereby scheduled to be heard on May 13, 1998, at 9:00 o’clock a.m.” Plainly, the Franchells were afforded both notice and opportunity to be heard on the merits of the motion to dismiss for insufficiency of service, but for reasons not apparent on the record, they opted not to have Piner or other witnesses ready and available to testify to rebut the Clarks’ affidavit testimony or any testimony offered by the Clarks at the hearing. Nor did the Franchells establish how the testimony would have been both material and beneficial since they did not make a proffer below. Zohbe, supra; McMillan v. Siver, 233 Ga. App. 350, 352-353 (504 SE2d 208) (1998).

3. The Franchells contend the trial court erred in dismissing the complaint as to Gary Clark because the record shows that he was served both by personal service and by publication.

When a defendant in a lawsuit challenges the sufficiency of service, that defendant bears the burden of showing improper service. Cushman v. Raiford, 221 Ga. App. 785, 787 (472 SE2d 554) (1996). “The return can only be set aside upon evidence which is not only clear and convincing, but the strongest of which the nature of the case will admit.” (Citations and punctuation omitted.) Id. In this case, the trial court expressly determined that the evidence satisfied that standard.

Decided November 3, 1999

Reconsideration denied November 30, 1999

Joseph M. Todd, for appellants.

Harper, Waldon & Craig, J. Blair Craig, Janice M. Wallace, for appellees.

Absent a showing of an abuse of discretion, a trial court’s finding of insufficient service of process must be affirmed. Heis v. Young, 226 Ga. App. 739, 741 (5) (487 SE2d 403) (1997). When the evidence is conflicting with respect to the proper receipt of service, as here, it becomes a question of fact to be resolved by the trial judge. See Whatley’s Interiors v. Anderson, 176 Ga. App. 406, 407 (2) (336 SE2d 326) (1985). Whether the evidence is sufficient to overcome facts reflected in a return of service is a question to be resolved by the trial court as the factfinder. Webb v. Tatum, 202 Ga. App. 89, 91 (413 SE2d 263) (1991). Those findings will not be disturbed on appellate review when supported by any evidence. Terrell v. Porter, 189 Ga. App. 778, 779 (1) (377 SE2d 540) (1989). Here, the trial court’s findings were supported by evidence. Although the record contains the affidavit of Piner attesting that he did, in fact, personally serve Gary Clark with a copy of the complaint and summons, it also includes the affidavit of Gary Clark denying that he had been personally served with the complaint and summons. Since the record contains some evidence supporting the trial court’s finding, the court did not abuse its discretion in dismissing the complaint against Gary Clark for insufficiency of service of process. Id.; see Webb, supra.

Judgment affirmed.

Pope, P. J., and Eldridge, J., concur.

       Although the record does not include a transcript of the pretrial conference, the Clarks offered the affidavit testimony of their counsel to reconstruct these events.

       Due to the parties’ inability to agree on the contents of a stipulated transcript, the trial court reconstructed the record, stating:
      Counsel for the parties were present at the May 13 hearing. Over plaintiffs’ counsel’s objection the court permitted defendants’ counsel to offer the oral testimony of both defendants. The court then considered that testimony as well as affidavits submitted on behalf of the plaintiffs in reaching its decision.


source: Caselaw Access Project

author: Miller, Judge.

license: Public Domain

text:
    A99A1350, A99A1351.
    BIBB COUNTY et al. v. GEORGIA POWER COMPANY (two cases).
    (525 SE2d 136)
   Miller, Judge.

When Bibb County condemned neighboring properties to widen a road, it did not condemn any easements Georgia Power may have had for its poles located on the properties. At the first widening in 1967, Georgia Power relocated the poles at its own expense, with many being relocated within the alleged 30-foot-wide easements. At the second widening in 1996, Georgia Power insisted that the county pay for the costs of relocation, resulting in this suit. The court entered summary judgment for Georgia Power to recoup the relocation expenses for 37 of the poles at issue. Because numerous fact disputes on material issues preclude summary judgment, we affirm in part and reverse in part.

Operative Facts

In the late 1940s and early 1950s, Georgia Power obtained and recorded easements from persons owning property adjacent to an approximately 20-foot-wide road that would later become known as Northside Drive. These indefinite easements allowed Georgia Power to place power poles and distribution lines across the properties, which it did (at least in part). From 1957 to 1965 Bibb County condemned or purchased title to a portion of those same properties, resulting in Bibb County owning fee simple title to an 80-foot right-of-way for the road. Because Bibb County did not condemn the Georgia Power easements, it took the property subject to those easements (to the extent they were valid).

In 1965 Bibb County deeded title to the right-of-way to the Georgia Rural Roads Authority for road construction. In March through August 1967, Georgia Power, at its own expense, relocated its power poles to accommodate the road construction. Nineteen of those poles were moved, most from ten to thirteen feet, south of their former locations. Another 18 not shown on some plats also may have been moved. In 1990 the Georgia Highway Authority (successor to the Georgia Rural Roads Authority) deeded the property back to Bibb County. The City of Macon then annexed small portions of the road.

In 1995 and 1996 Bibb County requested that Georgia Power again relocate its poles (approximately 100) to accommodate another road widening. Georgia Power agreed to move the poles only if the county paid the expense. Bibb County and the City of Macon filed the present declaratory action to force Georgia Power to relocate the poles at its expense and also asserted claims for delay damages, trespass, breach of contract, punitive damages, and attorney fees. Bibb County later added a claim for damages for violating the anti-gratuity clause of the Georgia Constitution. Georgia Power counterclaimed for inverse condemnation. The trial court ordered Georgia Power to relocate the poles and reserved the expense issue for a later determination. On motions for partial summary judgment regarding thirty-seven of the poles, the trial court ruled in two separate orders (one concerning nineteen of the poles — Case No. A99A1350, and the other concerning eighteen — Case No. A99A1351) in favor of Georgia Power. The county and city appeal.

1. In arguing summary judgment, the parties focus first on the validity of a 1941 agreement between Bibb County and Georgia Power, in which Georgia Power agreed in part to relocate, at its expense, poles located in a county right-of-way. But this portion of the agreement (regardless of whether the agreement is enforceable) does not apply to the poles at issue and thus is irrelevant. The paragraph on the payment of relocation costs applies only to poles “placed under or prior to this agreement.” None of the poles was placed prior to the execution of the agreement, and none was placed under the agreement, which pertains only to poles permissively constructed on county rights-of-way pursuant to an application process established in the agreement. Here Georgia Power placed the original poles at issue pursuant to easements Georgia Power had previously obtained from the private landowners. Even when Georgia Power relocated the poles in 1967 to accommodate road construction, at that time Bibb County had deeded its title to the right-of-way property to the Georgia Rural Roads Authority, and thus the 1941 agreement did not govern the relocation of those poles.

The city’s franchise agreement with Georgia Power is also inapplicable. Nowhere in that agreement is the subject of relocation or associated expenses addressed. Thus, both agreements are irrelevant to the 37 poles at issue, and the court did not err in granting Georgia Power summary judgment on the county’s and city’s claims for breach of these contracts with regard to these poles.

2. Summary judgment is proper only when no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. Applying the de novo standard of review to an appeal from a grant of summary judgment, we must view the evidence, and all reasonable inferences and conclusions drawn from it, in the light most favorable to the nonmoving party.

Various disputed facts preclude summary judgment on Georgia Power’s claims for reimbursement for the relocation of the 37 poles. The first dispute is whether Georgia Power had an established easement at the time Bibb County asked it to relocate its poles in 1996. The written easements obtained from the private landowners prior to the 1967 relocation were indefinite easements that became definite by the actual placement of the poles. Once so established, the easements could not be changed without Georgia Power first obtaining from the landowners a further or additional easement, whether by condemnation or otherwise. Jackson Elec. Membership Corp. v. Echols explained the consequences of a contrary holding:

To construe the original easement in any other manner would be to authorize the [utility] to eventually take all the [landowners’] land if the necessities of their business dictated, without requiring the payment of any additional damages or compensation to the [landowners] no matter how great the [landowners’] losses might be as a result thereof. This was clearly not the intention of the parties to the instrument. Certainly the [landowners] did not intend to convey to the [utility] blanket authority to take any and all their land whenever it might suit the convenience or necessity of the [utility], without requiring the [utility] to pay such damages as might accrue as a result of such taking.

Once fixed by actual placement of the poles, indefinite easements do not “float” according to the business necessities of the utility.

The disputed facts regarding the establishment of these Georgia Power easements are fourfold.

(a) The evidence is disputed whether prior to the county obtaining the 80-foot right-of-way Georgia Power had indeed placed poles along all of the easements and where exactly those poles (and how many) were placed. Georgia Power did not retain records showing the placement of poles from the early time periods; the earliest documents showing any use are the county’s road paving plans for Northside Drive created in 1957 and revised in 1965, which reflect only 15 poles on the south side of the road. To counter Georgia Power’s evidence (consisting of extrapolations from those plans and the vague recollections of various individuals about the location of some of the poles), the county submitted (i) the affidavit of an expert who, based on an analysis of aerial photographs of the area from 1960, disputed the placement, number, and maintenance of the poles; (ii) the 1957/1965 plat showing only some of the poles in place and gaps in other places (along with other expert testimony that such gaps would indicate an absence of poles); and (iii) a 1968 plat (accompanied by expert testimony) showing the poles apparently ended before reaching one of the areas in question as they were not shown to continue on property farther west. The weaknesses of the experts’ testimonies, as pointed out during their depositions, go to the weight of their testimony, which on summary judgment a court must construe in favor of the nonmovants.

(b) The county’s expert disputed the width of the easements. Georgia Power claimed the easements were 30 feet wide based on its historical practice of maintaining a 15-foot brush/tree clearance around poles located in rural areas like those at issue here. But the county’s aerial photograph expert saw no such clearance in the 1960 photographs taken a few years before the county condemned the land (but many years after the poles had been allegedly placed and maintained).

(c) In 1967 (after the county had condemned the property and obtained its right-of-way, but also after the county had deeded the property to the Rural Roads Authority to construct the project), Georgia Power relocated at least some of the poles at issue to the south (many as much as ten to thirteen feet) to accommodate the first widening of the road. Georgia Power contends that since it stayed within the thirty feet it had kept clear of trees and brush (which argument does not even apply to three of the poles that indisputably were located outside the thirty-foot width), it was not changing or abandoning its easement but was simply relocating the poles within the allowed general area of the easement.

But it is a jury question whether the relocating of a power pole several feet to one side was within the “general area” of the easement, since (i) moving a pole thirteen feet to the south would necessarily require, by Georgia Power’s own evidence, that the south side of the pole continue to be kept clear by fifteen feet, which would move the entire easement thirteen feet to the south, and (ii) there is a dispute whether the distance of thirty feet was historically kept clear (based on the testimony of the aerial photograph expert, the plats, and the indefinite evidence of Georgia Power). The question is whether the particular movement of the poles was a change in the degree or kind of the easement, for the changed locations may be found to “occupy a general area beyond the outer limits of the space previously occupied. . . ,”*

Moreover, acquiescing to a relocation of the poles may have constituted an abandonment of the old easements. With regard to the three poles indisputably located outside the thirty-foot width of the “original” easements, the evidence is even more convincingly in the county’s favor.

(d) The entity owning the land at the time Georgia Power relocated its poles in 1967 was the Georgia Rural Roads Authority, not Bibb County. The facts are unclear whether in 1967 the authority followed a State Highway Department policy of allowing pre-existing easements to follow the relocation of poles, when such poles were relocated to accommodate road construction or widening. This written policy, which the Georgia Highway Department did not promulgate or adopt under the procedural requirements of OCGA § 50-13-4 as a rule or regulation, purported to apply to unspecified “Authority projects.” But it also claimed to apply only to “On-System” roads, which are undefined and possibly may not apply to the present project (which was never a part of the “State Highway System”).

Moreover, when deeding the land to the authority, the county, not the authority, assumed the responsibility for the relocation and removal of all utilities, including power lines. The facts are inconclusive as to the intention of the parties whether the old easements followed the relocated poles, and therefore summary judgment was inappropriate.

3. Georgia Power focuses on the language of the easements as providing the missing certainty True, the easements from the private landowners were not condemned as part of Bibb County obtaining the title to the right-of-way Because the easements were pre-existing and recorded, the county took the land subject to the easements. And the written easements do provide that Georgia Power may enter the land to make repairs, renewals, alterations, and extensions on the power lines.

But altering, repairing, and extending the power lines do not encompass the right to move the fixed poles several feet in one direction; otherwise, by incremental adjustments, Georgia Power could eventually take over the entire property, a result not contemplated by such language. The question therefore is whether during 1967 the authority, which was the landowner, and the county, which was in charge of utility relocations, intended that these particular old easements should be moved from their original locations to the new locations. Georgia Power may have also intended to abandon the easements when it relocated the poles in 1967 and did not seek reimbursement. Summary judgment was inappropriate.

4. Georgia Power next argues that the county is estopped from denying the existence of the easements. This contention misses the mark for two reasons. First, estoppel alone does not generally apply to the state or county. Nor can prescription run against the state or a local government in regard to land held for the public benefit. Second, “[ejstoppel requires justifiable reliance on the opposing party’s representations or conduct and a change in position to one’s detriment. [Cit.]” Georgia Power has presented no evidence that it changed its position based on the county’s or city’s actions.

5. Even assuming the evidence required that we resolve all of the above factual questions in favor of Georgia Power, the determination that Georgia Power’s poles were located within its earlier acquired easements and that Georgia Power had not abandoned those easements would not settle the ultimate question of who is responsible to pay for the relocation costs. As pointed out by the amicus brief filed by the Association of County Commissioners of Georgia, OCGA § 32-4-42 (6) authorizes a county to order any utility having poles in, on, along, over, or under the public roads of a county road system to relocate those poles if the relocation is made necessary by the construction of any part of the county road system (outside the corporate limits of a municipality). The statute does not exempt poles that are located in the county right-of-way and also located on pre-existing easements not condemned by the county. The county is to follow OCGA §§ 32-6-171 and 32-6-173, which provide that relocation expenses are to be paid by the utility. Thus, the plain language of this statute appears to answer the issue in the county’s favor.

But if. pursuant to easements with the previous landowners Georgia Power had located the poles on the land prior to the county taking the land over, these sections would appear to violate the Georgia Constitution provision prohibiting the taking of private property for public purposes without just and adequate compensation first being paid. Ga. Power Co. v. City of Macon considered the same language used in the easements here and held “beyond doubt that they established rights on private property in the Georgia Power Company.” An easement is a property right, of which its owner cannot be deprived without just and adequate compensation. Absent the proper exercise of the power of condemnation, the underlying landowner has no power unilaterally to alter the path of an easement, even if the alternate route is “gold-plated.” Under similar circumstances, we have rejected the argument that expanding a road is a use of a county’s police power. The county cannot substantially impair an easement without paying compensation.

OCGA § 32-6-173 provides for this circumstance in that nothing in thé article is to be construed so as to deprive any utility, relocated from a location in which it owned a property interest, of compensation for such property interest. Construed in this context, the statutory scheme provides that the county may require a utility, at the utility’s expense, to relocate its equipment, even if the county’s right-of-way was obtained after the utility had obtained an easement for the equipment. But in turn the utility may seek just and adequate compensation for the loss of the use of its old easement, which loss would include the costs necessary to relocate to the new easement. The fact that the new easement (presumably provided by the county) allows the placement of the poles nearby, only reduces the amount of compensation to be paid the utility. It does not diminish the fact that (i) the loss of the use of the old easement resulted in immediate relocation costs, and (ii) unlike the old easement, the new easement may not allow the recovery of future relocation costs should in the future the utility be required to again relocate its poles.

6. After entry of the two summary judgment orders, the trial court sua sponte amended its second order to add that Georgia Power had a “liberty interest” in the slight movement of its poles and facilities on the right-of-way, which liberty interest was protected by the Fourteenth Amendment. No legal or factual authority supports such a conclusion, and Georgia Power makes no effort to argue otherwise. The court erred in this holding.

7. In one count of its counterclaim, the county claims that Georgia Power’s use of the public highways to locate its poles violates the Georgia Constitution’s prohibition against gratuities by the state, which has been extended to local governments. The trial court disagreed and entered summary judgment in Georgia Power’s favor on this claim.

Decided November 10, 1999

Reconsiderations denied November 30, 1999

Sell & Melton, Joseph W. Popper, Jr., John D. Comer, Robert D. McCullers, for appellants.

Jones, Cork & Miller, H. Jerome Strickland, H. J. Strickland, Jr., for appellee.

James E Grubiak, amicus curiae.

DeKalb County v. Atlanta Gas Light Co. held that no constitutional authority allows a county to charge a public utility for the use of a county right-of-way, which undermines a gratuity clause claim. Moreover, because of the benefits afforded to the public, this does not fall within the class of evils prohibited by this provision. The court did not err in granting Georgia Power summary judgment on this claim of Bibb County.

8. The grant of summary judgment in favor of Georgia Power on Bibb County’s and the City of Macon’s claims for trespass, delay damages, punitive damages, and attorney fees stands as these portions of the orders have not been challenged on appeal. Also not challenged is the court’s entry of summary judgment for Georgia Power on the relocation costs of 13 additional poles located outside the boundary of the county’s right-of-way, which also stands.

But we reverse the summary judgments granted to Georgia Power on its claims regarding the 19 and 18 poles and affirm the denial of the county’s and city’s motion for summary judgment on the same. We also affirm the grant of summary judgment to Georgia Power on the breach of contract with regard to the 37 poles and on the illegal gratuity claim of the county.

Judgments affirmed in part and reversed in part.

Pope, P. J., and Eldridge, J., concur.

       See, e.g., Webster v. Snapping Shoals Elec. Membership Corp., 176 Ga. App. 265, 266-267 (1) (a) (335 SE2d 637) (1985).

       See Ga. Const, of 1983, Art. Ill, Sec. VI, Par. VI (a).

       OCGA § 9-11-56 (c).

        Desai v. Silver Dollar City, 229 Ga. App. 160, 163 (1) (493 SE2d 540) (1997); Matjoulis v. Integon Gen. Ins. Corp., 226 Ga. App. 459 (1) (486 SE2d 684) (1997).

        Jackson Elec. Membership Corp. v. Echols, 84 Ga. App. 610, 611 (66 SE2d 770) (1951); see Gaston v. Gainesville &c. R. Co., 120 Ga. 516, 517-518 (1) (48 SE 188) (1904).

        Jackson Elec., supra, 84 Ga. App. at 612; see Martin a Seaboard Air-Line R., 139 Ga. 807, 809 (1) (77 SE 1060) (1913) (grantee confined to land used in first establishing easement).

       Supra, 84 Ga. App. at 612.

       See HOH Co. v. Ethridge, 168 Ga. App. 20, 22 (2) (308 SE2d 43) (1983).

       Compare Humphries v. Ga. Power Co., 224 Ga. 128, 129 (1) (160 SE2d 351) (1968) (testimony showed power company kept 100 feet clear, which established easement parameters).

       Id.

       Id.

       See Walker v. Ga. Power Co., 177 Ga. App. 493, 496 (1) (339 SE2d 728) (1986).

        Duffield v. DeKalb County, 242 Ga. 432, 436 (4) (249 SE2d 235) (1978); Hardage v. Lewis, 199 Ga. App. 632, 633 (405 SE2d 732) (1991); Webster, supra, 176 Ga. App. at 266-267 (1) (a). Cf. OCGA §§ 32-3-1 (a); 32-3-3 (a) (allowing counties to acquire property in less than absolute fee simple).

       Cf. Cook v. Wimpey, 57 Ga. App. 338 (2) (195 SE 325) (1938) (factfinder could find that change in few feet of prescriptive easement did not defeat title to the easement, as the owner’s actions necessitated the change, and the change could be found to be insignificant).

       See generally Walker, supra, 177 Ga. App. at 496-497 (1); see also Sadler v. First Nat. Bank of Baldwin County, 267 Ga. 122, 123 (2) (475 SE2d 643) (1996); Gaston, supra, 120 Ga. at 518 (2).

        Richmond County v. Pierce, 234 Ga. 274, 278-280 (4) (215 SE2d 665) (1975); see generally OCGA § 45-6-5.

        Grand Lodge &c. v. City of Thomasville, 226 Ga. 4, 8 (3) (c) (172 SE2d 612) (1970); Adams v. Richmond County, 193 Ga. 42, 50 (4) (17 SE2d 184) (1941).

        Allstate Ins. Co. v. Sapp, 223 Ga. App. 443, 445 (477 SE2d 869) (1996).

       See Ga. Const, of 1983, Art. I, Sec. III, Par. I (a).

       228 Ga. 641, 645 (2) (187 SE2d 262) (1972).

        Lee v. City of Atlanta, 219 Ga. App. 264, 266 (3) (464 SE2d 879) (1995); see DeKalb County v. Glaze, 189 Ga. App. 1, 2 (1) (375 SE2d 66) (1988).

        Thomason v. Kern & Co., 259 Ga. 119, 120 (376 SE2d 872) (1989).

        Glaze, supra, 189 Ga. App. at 2 (1).

       See id.; Ga. R. & Banking Co. v. Mayor &c. of Union Point, 119 Ga. 809, 814-815 (3) (47 SE 183) (1904).

       See Ga. Const. of 1983, Art. III, Sec. VI, Par. VI (a); Grand Lodge, supra, 226 Ga. at 8 (3) (b).

       228 Ga. 512, 514 (5) (186 SE2d 732) (1972).

       See also DeKalb County v. Ga. Power Co., 249 Ga. 704, 705 (1) (292 SE2d 709) (1982).

       See State of Ga. v. Trustees of Cincinnati Southern R., 248 U. S. 26, 29 (39 SC 14, 63 LE 104) (1918); see generally Garden Club of Ga. v. Shackelford, 266 Ga. 24 (1) (463 SE2d 470) (1995); Smith v. Bd. of Commrs. &c. 244 Ga. 133, 140 (2) (259 SE2d 74) (1979).


text:
    A99A1943.
    OWENS v. STATE OF GEORGIA.
    (525 SE2d 150)
   Miller, Judge.

On September 10, 1998, police seized $578 in currency from Henry Owens because he allegedly used it in connection with the purchase and sale of cocaine. On September 30, the State filed a forfeiture action to condemn the currency. Owens disputed that he was served properly, so at a hearing on January 7,1999, the State, pursuant to court instruction, served Owens personally in open court. Because Owens failed to answer, the court entered default judgment against him on April 7. He appeals, contending (1) he was not properly served; (2) the court failed to hold a hearing within 60 days as required by OCGA § 16-13-49 (o) (5); and (3) the State commenced the forfeiture proceeding too late.

1. Owens’ claim that he was not properly served is unfounded. To cure his initial complaints about service, the judge allowed the State to serve him personally in open court. The court then delayed acting on the matter until Owens had had more than 30 days to respond to that service. Default judgment was proper.

2. The record shows that the State commenced the forfeiture proceedings within 60 days of the seizure. Under OCGA § 16-13-49 (h) (2), the proceedings were timely.

3. Owens contends that the trial court erred in not holding a hearing within 60 days after service of the complaint. OCGA § 16-13-49 (o) (5) provides that such a hearing must be held only if an answer is filed. “[I]f no answer is filed, no hearing is required, and the court is required to order the disposition of the seized property. Obviously, the 60-day requirement is conditioned on the filing of a timely and sufficient answer.” Because Owens filed no answer, this enumeration is without merit.

4. In a reply brief, Owens argues that (i) the evidence did not support a finding that the currency was used in connection with a crime and (ii) there was no warrant for the search that resulted in the seizure of the currency. His failure to raise these matters in his enumeration of errors and initial brief precludes appellate review. Even if we reviewed these matters, his failure to answer the complaint resulted in his admission of the allegations of the complaint and his waiver of defenses to recovery, which moot his arguments.

Judgment affirmed.

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

Decided November 12, 1999

Reconsideration denied November 30, 1999

Henry Owens, pro se.

Patrick H. Head, District Attorney, Debra H. Bernes, Maria B. Golick, IrvanA. Pearlberg, Assistant District Attorneys, for appellee.

       OCGA §16-13-49(0) (4).

       (Citation omitted.) State v. Henderson, 263 Ga. 508, 509, n. 2 (436 SE2d 209) (1993).

       See Mobley v. Sewell, 226 Ga. App. 866, 869 (487 SE2d 398) (1997).

        Whitby v. Maloy, 150 Ga. App. 575 (1) (258 SE2d 181) (1979).


text:
    A99A1532, A99A1533.
    A99A1534.
    HOLLOMAN et al. v. D. R. HORTON, INC. et al.; and vice versa. LAWLER v. HOLLOMAN et al.
    (524 SE2d 790)
   Smith, Judge.

These three related appeals arise from a dispute between a homebuilder and its dissatisfied customers. Carol H. Holloman and James L. Holloman filed an action against D. R. Horton, Inc., the homebuilder, David Mackey, Horton’s representative and construction manager, and John M. Lawler, Community Development Director for the City of Norcross. The Hollomans’ complaint sought damages for breach of contract and violation of the Fair Business Practices Act against Horton, for negligent construction against Horton and Mackey, and for negligent inspection, fraudulent concealment of defects, fraud, and violation of the Racketeer Influenced & Corrupt Organizations Act (RICO) against Horton, Mackey, and Lawler.

Lawler filed a motion for summary judgment on the basis of official immunity, among other grounds. That motion was denied, and Lawler filed an application for an interlocutory appeal but later withdrew it. Horton and Mackey filed a joint motion to dismiss or for partial summary judgment, later amended to seek full summary judgment, and Lawler filed a motion to dismiss.

The trial court entered a lengthy and thorough order dealing with all pending motions, as well as an additional order on motion for reconsideration elaborating on its reasoning in the earlier order. The trial court determined that a genuine issue of material fact existed as to the Hollomans’ claims for breach of contract but found that the Hollomans had waived any claim for rescission. The trial court also found material issues of fact with respect to the allegations of fraud but granted summary judgment on the Hollomans’ claims of negligent construction and negligent inspection. From these decisions the parties appeal.

After reviewing the record and the contentions of all the parties, we find that the trial court correctly allowed the Hollomans’ breach of contract and fraud claims to proceed and correctly concluded that any rescission claim was waived. The trial court erred, however, in relying on the “economic loss rule” to grant summary judgment to the defendants on the Hollomans’ negligence claims. The trial court also erred in refusing to grant summary judgment to Lawler on the ground of official immunity. We therefore affirm the trial court’s judgment in part and reverse it in part.

Case No. A99A1533

We first consider the appeal of Horton and Mackey, in which they assert that the trial court erred in denying their motions for summary judgment on the Hollomans’ breach of contract and fraud claims. We find no error and affirm.

1. (a) First, we address Horton’s contention that a paragraph in its printed one-page “agreement of sale” excludes all express and implied warranties other than that in the Home Owner’s Warranty Corporation (HOW) booklet. But when a contract is partly printed and partly handwritten or typed, the written or typed portions are given greater weight in construing the parties’ intent. Grier v. Brog-don, 234 Ga. App. 79, 81 (2), n. 10 (505 SE2d 512) (1998). The agreement between the parties in this case includes a nine-page typewritten addendum drafted by Mr. Holloman. The closing documents expressly provide that all terms of the contract shall survive closing. “It is well established that a court should avoid an interpretation of a contract which renders portions of the language of the contract meaningless.” (Citations and punctuation omitted.) State Farm &c. Ins. Co. v. Terry, 230 Ga. App. 12, 15 (2) (495 SE2d 66) (1997), affd, 269 Ga. 777 (504 SE2d 194) (1998). Horton’s proposed interpretation of the agreement between the parties would render most if not all of the addendum meaningless, and the rules of construction do not allow us to interpret the contract in that manner.

(b) We next consider the trial court’s determination that material issues of fact exist. The standards applicable to motions for summary judgment generally are well established.

When ruling on a motion for summary judgment, the opposing party should be given the benefit of all reasonable doubt, and the court should construe the evidence and all inferences and conclusions therefrom most favorably toward the party opposing the motion. Further, when reviewing the grant or denial of a motion for summary judgment, this [c]ourt conducts a de novo review of the law and the evidence.

(Citations omitted.) Supchak v. Pruitt, 232 Ga. App. 680, 682 (1) (503 SE2d 581) (1998).

The typewritten addendum to the contract contains numerous special stipulations, including a provision that, if a HOW warranty is unavailable, “builder will provide a 2 year warranty on everything and a 10 year warranty on the structure.” While Horton contends that the Residential Warranty Corporation (RWC) warranty it provided at closing fulfilled this obligation, the Hollomans contend that it did not, pointing to significant omissions and exclusions in the RWC coverage. The addendum also provides specifications regarding the construction of the house and the materials used, which the Hol-lomans contend were breached by Horton. Giving the benefit of all reasonable doubt to the Hollomans and construing the evidence and all inferences and conclusions drawn from it in their favor, we agree with the trial court that material issues of fact remain regarding Horton’s obligations under the contract and whether it breached them. The trial court did not err in refusing to grant summary judgment on this issue.

2. We agree with the trial court that genuine issues of material fact also remain on the Hollomans’ fraud claims. Fraud in the sale of real estate may be based upon several theories:

[F]raud in the sale of real estate may be predicated upon a wilful misrepresentation, i.e., the seller tells a lie; upon active concealment where the seller does not discuss the defect but takes steps to prevent its discovery by the purchaser; and thirdly a passive concealment where the seller does nothing to prevent the discovery but simply keeps quiet about a defect which though not readily discernible, is known to the seller.

(Punctuation omitted.) Fincher v. Bergeron, 193 Ga. App. 256, 258 (1) (387 SE2d 371) (1989). Georgia law has placed a special duty of disclosure on the builder-seller that markets its new homes to consumers. The “passive concealment” exception to the general rule of caveat emptor

places upon the seller a duty to disclose in situations where he or she has special knowledge not apparent to the buyer and is aware that the buyer is acting under a misapprehension as to facts which would be important to the buyer and would probably affect his decision. Wilhite v. Mays, [140 Ga. App. 816, 818 (3) (232 SE2d 141) (1976), aff’d, 239 Ga. 31 (235 SE2d 532) (1977)]. See also PBR Enterprises v. Perren, 243 Ga. 280 (4) (253 SE2d 765) (1979); Worthey v. Holmes, [249 Ga. 104, 105 (2) (287 SE2d 9) (1982)].

(Punctuation omitted.) Perrett v. Dollard, 176 Ga. App. 829, 830 (2) (338 SE2d 56) (1985).

The Hollomans provided expert testimony that the house was defective in many respects, such as improper installation of the manufactured floor system, framing defects, and other construction defects, including improper installation of stucco, siding, and windows. The Hollomans’ expert witness concluded that the house had so many structural defects that it was unsound and not suitable for its intended use. He attributed the defects to “a general performance failure at all levels of the construction process.” It is undisputed that Horton is a builder-seller chargeable with special knowledge of the alleged defects. See Wilhite, supra; Worthey, supra.

The Hollomans also allege by affidavit that they “have . . . been informed” that Horton was notified by a floor joist manufacturer of certain necessary structural corrections but failed to make them. We do not consider this allegation because evidence on summary judgment is held to the same standards of admissibility as evidence at trial, and inadmissible hearsay has no probative value unless an exception to the hearsay rule applies. Hardee’s Food Systems v. Green, 232 Ga. App. 864, 866 (1) (502 SE2d 738) (1998). But the Hol-lomans’ expert also relied upon the written reports of the manufacturer’s representative to testify that defects were identified but corrections were not made. An expert witness may base his opinion on hearsay and may be allowed to testify as to the basis for his findings. King v. Browning, 246 Ga. 46, 47 (268 SE2d 653) (1980).

With respect to defendant Mackey, although he was not a party to the contract between the Hollomans and Horton, he acknowledged that he was Horton’s representative and supervised the construction of the Hollomans’ house on Horton’s behalf. Moreover, evidence was presented that he was the only representative of Horton who attended both the inspection of the house prior to closing and the inspection at which the Hollomans pointed out their specific complaints regarding construction. At the latter inspection, Mackey was the representative who indicated which items would and would not be repaired by Horton. Mackey therefore was in a position of superior knowledge to the Hollomans with regard to the condition of the house and chargeable with knowledge of the alleged defects.

Even a third party who is not an employee or representative of the builder may be chargeable with negligent misrepresentation, when the desired result of the representation is reliance upon it by a known third party. See Robert & Co. Assoc. v. Rhodes-Haverty Partnership, 250 Ga. 680 (300 SE2d 503) (1983) (allowing cause of action for misrepresentation despite lack of privity between parties). The trial court did not err in allowing the fraud claims against Horton and Mackey to proceed.

Case No. A99A1532

The Hollomans’ appeal raises two enumerations of error. First, they contend that the trial court improperly found they waived their right of rescission by electing to sue on the contract. They also contend that the trial court improperly applied the economic loss rule to their negligence claims. We agree with the trial court’s conclusion that the Hollomans’ right of rescission was waived, but we find the trial court’s application of the economic loss rule erroneous in these circumstances and reverse the grant of summary judgment on the negligence claims.

3. In a careful and complete analysis of the Hollomans’ election of remedies, the trial court concluded that although the Hollomans made an attempt to rescind the contract, they did not adhere to that intention in their subsequent actions or pleadings and thereby waived any claim for rescission. We agree.

A purchaser claiming to have been fraudulently induced into entering a sales contract has an election of remedies involving rescission or affirmation of the contract. One remedy is to promptly after discovery of the fraud rescind the contract, and after offering to restore the benefits received under the contract or showing a sufficient reason for not doing so, sue in tort for recovery of the purchase price and for any additional damages resulting from the alleged fraud. The other remedy is to affirm the contract and sue for damages resulting from the alleged fraud. Such a suit for damages by the defrauded party for the fraud committed is not a suit for the violation of the contract, but is one for a tort and involves affirmance of the contract, and the defrauded party may keep the fruits of the contract and maintain an action for the damages suffered by reason of the fraud.

(Citations and punctuation omitted.) Ben Farmer Realty Co. v. Woodard, 212 Ga. App. 74 (441 SE2d 421) (1994). An announcement of the intent to rescind the contract must be made in a timely fashion, as soon as the facts supporting the claim for rescission are discovered. Moreover, the aggrieved party must adhere to the intent to rescind and may waive any claim for rescission by failing to do so. Fla. Intl. Indem. Co. v. Osgood, 233 Ga. App. 111, 113 (503 SE2d 371) (1998); Meadow River Lumber Co. v. Univ. of Ga. Research &c., 233 Ga. App. 169, 176 (2) (503 SE2d 655) (1998). Once a claim for rescission is waived, it cannot be revived:

Forfeitures of rights under valid legal contracts are not favored under the law. Our courts generally are quick to seize upon any waiver of a forfeiture, the rule being that the right to rescind for any breach must be asserted promptly, and a waiver of a breach or forfeiture can not be recalled.

(Citations and punctuation omitted.) John McDonald Pontiac-GMC Truck v. Klopper, 205 Ga. App. 639, 641 (422 SE2d 925) (1992).

In its orders, the trial court carefully examined all the circumstances of the Hollomans’ alleged discovery of the defects in the house, their demand for rescission, their initial complaint, and their conduct after the litigation began. We agree that the Hollomans’ actions, viewed as a whole, were inconsistent with a prompt and consistent attempt to rescind. Approximately one year after closing, the Hollomans presented Horton with a list of 169 defects in the house and requested repairs and remedial work under the contract. Approximately three months later, in February 1996, the Hollomans sent a letter announcing their intent to rescind the contract and demanding the refund of the original purchase price and an additional $25,000 in damages.

But in April 1996, the Hollomans filed their complaint without a count seeking rescission and with no allegation of the necessary elements of such a claim. Although the Hollomans included a prayer for rescission as one of eleven subsections of their prayer for relief, “the prayer is not an allegation in the complaint which requires an answer (OCGA § 9-11-8 (d)) and is not part of plaintiffs’ cause of action. [Cits.]” Drug Emporium v. Peaks, 227 Ga. App. 121, 128 (2) (c) (488 SE2d 500) (1997) (no claim for punitive damages when no separate count in complaint, even though prayer for relief requested punitive damages). The original complaint, by affirming the contract and seeking damages resulting from the alleged fraud without alleging any cause of action for rescission, constituted an election of remedies and a waiver of any rescission claim. And the Hollomans’ attempt to amend their complaint to add a count seeking equitable relief and rescission over two years after suit was filed, and after Horton and Mackey amended their motion for summary judgment to raise this issue, could not revive their claim for rescission.

4. The Hollomans also complain that the trial court improperly applied the “economic loss rule” to their claims of negligence. We agree.

The economic loss rule provides that absent personal injury or damage to property other than to the allegedly defective product itself an action in negligence does not lie and any such cause of action may be brought only as a contract warranty action. The rationale underlying this rule is that when a defective product has resulted in the loss of the value or use of the product itself, or the cost of repairing it, the plaintiff is merely suing for the benefit of his bargain.

(Citations, punctuation and footnote omitted.) Advanced Drainage Systems v. Lowman, 210 Ga. App. 731, 733-734 (2) (437 SE2d 604) (1993). See also Bates & Assoc. v. Romei, 207 Ga. App. 81, 83 (4) (426 SE2d 919) (1993).

A leading treatise on torts indicates that this rule is generally applicable to a home constructed by a builder, see Prosser & Keeton on the Law of Torts, § 92, p. 659 (5th ed. 1984), but we have found no Georgia case that so holds. It appears that at least with respect to homebuilders marketing and selling their homes to the public, Georgia law allows contract and negligence actions to proceed simultaneously. Holmes v. Worthey, 159 Ga. App. 262, 266-267 (contract), 268 (negligence) (282 SE2d 919) (1981), aff’d, Worthey v. Holmes, 249 Ga. 104.

But under the facts of this case, we need not decide whether the economic loss rule applies generally to home construction and sales. Even if the rule were applicable to the Hollomans’ claims, it contains an exception overlooked by the parties but clearly relevant here.

Two exceptions are generally stated to the economic loss rule: the accident exception, which is not applicable here, and the misrepresentation exception. The latter exception has been defined as follows:

One who supplies information during the course of his business, profession, employment, or in any transaction in which he has a pecuniary interest has a duty of reasonable care and competence to parties who rely upon the information in circumstances in which the maker was manifestly aware of the use to which the information was to be put and intended that it be so used. This liability is limited to a foreseeable person or limited class of persons for whom the information was intended, either directly or indirectly.

(Punctuation omitted.) Lowman, supra at 734. By adopting this exception, the Supreme Court approved the language of the Restatement of Torts, 2d, § 552 (1977):

The Restatement of Torts 2d, § 552 (1977) provides in pertinent part: “(1) One who, in the course of his business, profession or employment, or in any other transaction in which he has a pecuniary interest, supplies false information for the guidance of others in their business transactions, is subject to liability for pecuniary loss caused to them by their justifiable reliance upon the information, if he fails to exercise reasonable care or competence in obtaining or communicating the information.” [Cit.]

Id. at n. 2.

This view is supported by our decision in Swiedler v. Ferguson, 195 Ga. App. 364, 366 (393 SE2d 456) (1990), although that case involved a private home seller rather than a builder-seller. In Swiedler, we recognized that the misrepresentation exception to the economic loss rule, as set forth in the Restatement of Torts, “is no more than an affirmation of the principles of passive concealment or plain fraud, constructive or actual.” (Citation and punctuation omitted.) Id. The economic loss rule is inapplicable in the presence of passive concealment or fraud. Since the trial court correctly denied summary judgment on the Hollomans’ fraud claims, it erred in granting summary judgment on the Hollomans’ negligence claims on the basis of the economic loss rule.

Case No. A99A1534

5. In his appeal, Lawler contends the trial court erred in denying his motion for summary judgment on the ground of official immunity. We agree and reverse.

Lawler is the City of Norcross Community Development Director, a supervisory position with two employees under him. Lawler personally performed one inspection, but the “primary inspector,” the engineer-inspector in his department, performed the remaining eleven inspections of the Hollomans’ house and in each case indicated a successful inspection on the building permit. In his deposition, Lawler described at length the inspection and approval process and the various codes and standards relied upon by his department in that process. Lawler testified that his engineer would not sign off on the building permit until the violations he found, if any, were corrected.

Under Georgia law, public officers and employees are entitled to official immunity from any cause of action brought against them in their private or personal capacity when they are sued for discretionary acts taken within the scope of their employment and without actual intent to injure.

When a public employee is sued over his misperformance or nonperformance of a discretionary act, the employee may be held liable only where evidence shows he or she acted with “actual malice or with actual intent to cause injury in the performance of [his or her] official functions.” Ga. Const. 1983, Art. I, Sec. II, Par. EX (d). The Supreme Court has determined that “actual malice” excludes any concept of “implied malice” or “reckless disregard” and means only “express malice or malice in fact.” [Cit.]

Caldwell v. Griffin Spalding County Bd. of Ed., 232 Ga. App. 892 (503 SE2d 43) (1998) (physical precedent only).

While the Hollomans raise numerous arguments regarding Lawler’s alleged misconduct in issuing a certificate of occupancy despite failure to abide by the relevant building codes, they have not demonstrated actual malice on his part. In fact, in their depositions, the Hollomans acknowledged that their complaint with regard to Lawler is based entirely on their contention that he should have performed a better inspection before issuing a certificate of occupancy. They specifically acknowledged that they knew of no evidence to support the allegation in their complaint that Lawler was aware of and intentionally concealed code violations.

The Hollomans’ sole remaining support for their allegations of fraud and malice is their contention that Lawler approved the construction of their house based solely on a “comfort level” rather than the applicable building codes and actual inspection. But this argument fundamentally misstates Lawler’s testimony.

It is apparent from the relevant portion of Lawler’s deposition that his mention of a “comfort level” referred only to the general use of pre-manufactured engineered truss joists by Horton in building all the houses in the Hollomans’ subdivision. The deposition also shows that Lawler was testifying to his department’s general satisfaction with the use of such pre-manufactured components based upon engineering specifications, compliance with the Southern Standard Building Code, review by a manufacturer’s representative, and the city’s experience with the product in the course of Horton’s subdivision project.

Lawler’s use of the phrase “comfort level” in describing his department’s generally positive experience with the use of such manufactured components in no way contradicts or detracts from his clear and detailed testimony that the Hollomans’ house was inspected by Lawler and his subordinate in accordance with the procedures prescribed by the City of Norcross and the various building codes adopted by the city. This testimony does not show that Lawler acted with actual malice or intent to cause injury in the course of his department’s inspection of the Hollomans’ house.

Because no issue of malice or intent to cause injury is presented by the evidence, the question of Lawler’s official immunity for his actions as a building inspector is directly controlled by this court’s decision in Peele v. Dobbs, 196 Ga. App. 684 (396 SE2d 600) (1990). In Peele, homeowners sued a county building inspector after a chimney fire damaged their home, alleging that he negligently inspected and approved the construction of the chimney. We affirmed the trial court’s grant of summary judgment on the basis of official immunity, observing that it was without dispute that the inspector was acting in his official capacity as building inspector and no allegation of wilfulness, malice or corruption was made. The appellants in Peele, like the Hollomans here, contended that official immunity did not apply because they sued the inspector in his individual rather than his official capacity and because they alleged that his inspection of the property was a ministerial rather than a discretionary function. This court rejected that argument, observing that the inspector was sued “solely because of the position he held and the duties imposed upon him as a result of this position. Indeed, the act complained of could only have been done in his official capacity.” (Punctuation omitted.) Id. In other words, we observed, the homeowners were contending that the inspector,

acting in his official capacity as building inspector, failed to exercise sound judgment (discretion) in allowing what they alleged to be a hazardous condition to exist. Therefore, the act or failure to act is not ministerial in nature, but is, rather, discretionary.

Decided November 9, 1999

Reconsideration denied November 30, 1999

Wilson, Strickland & Benson, Warner R. Wilson, Jr., Sara L. Doyle, for Holloman et al.

Johnson, Matte & Hohgood, Thomas T. Hobgood, Timothy W. Johnson, for D. R. Horton, Inc. et al.

McCullough Sherrill, Kirk R. Fjelstul, Victor A. Ellis, for Lawler.

(Citation and punctuation omitted.) Id. Moreover, “ ‘one who supervises or monitors another exercises discretion in so doing.’ ” Brantley v. Dept. of Human Resources, 235 Ga. App. 863, 864 (509 SE2d 645) (1999). The trial court therefore erred in denying Lawler’s motion for summary judgment.

Judgment affirmed in Case No. A99A1533. Judgment affirmed in part and reversed in part in Case No. A99A1532. Judgment reversed in Case No. A99A1534.

Pope, P. J, and Eldridge, J., concur.

       In its orders, the trial court made a number of other rulings from which the parties do not appeal. The Hollomans do not appeal the trial court’s grant of summary judgment on their claim that they were fraudulently induced to enter into the contract, summary judgment on their RICO claims, or the dismissal of their Fair Business Practices Act claim on procedural grounds. The defendants do not appeal the trial court’s denial of their motions to dismiss.

       While Mackey asserts that he is entitled to summary judgment on the contract claim, that claim was never asserted against him, as the Hollomans’ complaint and the trial court’s order make plain.

       No HOW warranty was obtained, however.

       “Thus, a builder or a contractor would normally be subject to liability on a contract theory only, to the promisee and a third-party beneficiary for delays in construction or defects in construction that do not result in physical harm to persons and tangible things, other than the thing itself that is being constructed or repaired.” (Citations and footnote omitted.) Id.


author: Pope, Presiding Judge.

text:
    A99A1475.
    GEORGIA FORESTRY COMMISSION et al. v. TAYLOR.
    (526 SE2d 373)
   Pope, Presiding Judge.

We granted a discretionary appeal in this workers’ compensation case to address an issue of first impression regarding the construction of OCGA § 34-9-243 (b). That statute provides for a reduction in the amount of workers’ compensation benefits an employer must pay when the employer is also paying disability benefits. The issue in this case is whether the calculation of the credit under OCGA § 34-9-243 (b) should be based on the gross amount of disability benefits which the employer has paid or on the net amount of disability benefits which the employee has received. In construing the statute, the administrative law judge, the appellate division of the State Board of Workers’ Compensation, and the superior court calculated the credit based upon the employee’s net retirement disability check. We conclude that the ALJ, the board and the superior court correctly calculated the credit under OCGA § 34-9-243 (b), and we affirm.

In a single enumeration of error, the employer and self-insurer, Georgia Forestry Commission, argues that the superior court erred in affirming the award of the State Board, which had affirmed the award of the ALJ. The Forestry Commission argues that it should have received credit toward its payments for workers’ compensation benefits based on the gross amount of the disability payments employee Larry Taylor received, rather than on the net amount of his check.

The record shows that Taylor worked for the State Forestry Commission. As part of his benefit package, he was provided with coverage under the State of Georgia Disability Retirement Plan. The State paid two-thirds of the policy premium, while the employee paid one-third. Taylor was injured on the job, and after exhausting his sick and annual leave, he was placed on permanent disability. He is entitled to gross disability retirement benefits of $1,622.02 per month. The servicing agent deducts federal and state taxes and health insurance premiums from this amount, so that Taylor receives a monthly net amount of $1,268.52 in disability benefits. Taylor is also entitled to workers’ compensation disability benefits of $275 per week.

OCGA § 34-9-243 (b) provides that the employer’s obligation to pay weekly workers’ compensation benefits “shall be reduced by the employer funded portion of payments received or being received by the employee pursuant to a disability plan.” OCGA § 34-9-243 (c) further provides that the credit shall be made only for those amounts which the employee is “entitled to, has received, or is receiving during any period in which benefits under Code Section 34-9-261 or 34-9-262 are claimed.”

In this case, the parties disagreed as to the amount of the credit the Forestry Commission should receive under OCGA § 34-9-243. Basing the calculation of the credit on Taylor’s net disability check after deductions for state and federal taxes and health insurance premiums entitled the Forestry Commission to a credit of $194.74 per week; calculating the credit based on Taylor’s gross disability benefit entitled the Forestry Commission to a credit of $247.05 per week. After a hearing, the AL J issued an award in favor of Taylor, holding that the Forestry Commission was entitled to a credit — based on the net amount Taylor received — of $194.74 per week. The board affirmed the award of the ALJ, and the superior court affirmed the board. We then granted the Forestry Commission’s application for discretionary appeal.

As stated above, OCGA § 34-9-243 (b) provides that the employer’s obligation to pay weekly workers’ compensation benefits “shall be reduced by the employer funded portion of payments received or being received by the employee pursuant to a disability plan.” In determining the meaning of “payments received or being received by the employee,” we must consider the rules of statutory construction. First, it is axiomatic that in interpreting a plain and unambiguous statute we must give its words their plain and ordinary meaning, except for words which are terms of art or have a particular meaning in a specific context. OCGA § 1-3-1 (b).

“[A] statute must be construed in relation to other statutes of which it is a part, and all statutes relating to the same subject-matter, briefly called statutes ‘in pari materia,’ are construed together, and harmonized wherever possible, so as to ascertain the legislative intendment and give effect thereto.” [Cit.]

Bennett v. Wood, 188 Ga. App. 630, 632 (1) (373 SE2d 645) (1988).

Applying these rules of construction, we conclude that OCGA § 34-9-243 (b) was intended to authorize a credit based on the net benefit paid by the employer on the employee’s behalf. The language of the statute states that the amount for which the employer receives credit is the amount to which the employee is entitled — which is that amount which the employee has received or is receiving. Because the statute does not state that the employer should be credited for the amounts paid, thé employer’s credit should be based on the amounts the employee actually receives, i.e., the net amount of the check.

The propriety of calculating the employer’s credit from the net amount paid to the employee is also demonstrated by language from Form WC-243, the form which must be filed for the employer to receive a credit or reimbursement for amounts paid. This form specifically refers to a credit from which benefits are “paid” or payments “received” by the employee. The form then refers to the fact that the employee has been “paid” certain weekly benefits. The form indicates that the “credit shall not exceed the amount of income benefits due the employee,” which indicates that the purpose of the Code section is to ensure that an employee is not unjustly enriched by doubling up on payments.

In affirming the judgment below, we note that the weakness in calculating the employer’s credit according to the employee’s net income is that the employee may manipulate his net income to maximize his recovery. Nevertheless, the plain language of the statute indicates that the net income is the amount which should be used to calculate the offset, and it is the job of the legislature, not of this court, to change the wording of the statute if necessary. Moreover, in interpreting the provisions of the Workers’ Compensation Act, we remember that “[o]ur Workers’ Compensation Act is a humanitarian measure which should be liberally construed to effectuate its purposes.” (Citations and punctuation omitted.) Graves v. Builders Steel Supply, 186 Ga. App. 736, 737 (368 SE2d 188) (1988). So construing the Act, we conclude that the calculation of the credit under OCGA § 34-9-243 (b) should be based on the net amount of disability benefits which the employee receives.

Decided November 30, 1999

Thurbert E. Baker, Attorney General, Barrow & Sims, Charles W. Barrow, for appellants.

James D. Hudson, for appellee.

Judgment affirmed.

Smith and Eldridge, JJ., concur.

       In the proceedings below, Taylor did not raise the issue of whether the State Disability Retirement Plan falls under the purview of OCGA § 34-9-243, which by definition applies only to disability, not to retirement, plans. In affirming the ALJ’s award, the appellate division noted that it did not address the issue.


author: Ellington, Judge.

text:
    A99A1890, A99A1891.
    PALOMBI v. FRITO-LAY, INC. et al. (two cases).
    (526 SE2d 375)
   Ellington, Judge.

Kenneth Palombi sued his former employer, Frito-Lay, Inc., and his former supervisor, Kevin Gohlinghorst, for defamation, tortious interference with contract or business relations, and negligent supervision — all arising from events surrounding the termination of his employment. He amended his complaint to recast his defamation claim. The trial court granted the motion for summary judgment filed by Frito-Lay and Gohlinghorst. In a separate order, the trial court granted the motion filed by Frito-Lay and Gohlinghorst to dismiss the libel claim asserted in the amended complaint. Palombi appeals both orders. We consolidated his appeals, and for the reasons which follow, we affirm both judgments.

Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. OCGA § 9-11-56 (c). A de novo standard of review applies to an appeal from a grant of summary judgment, and we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant.

Matjoulis v. Integon Gen. Ins. Corp., 226 Ga. App. 459 (1) (486 SE2d 684) (1997).

Viewed in this light, the evidence shows that Palombi was employed by Frito-Lay as a district sales manager for five years. Goh-linghorst was Palombi’s supervisor for his last two years. In March 1995, Palombi rented a commercial storage unit and stored shelves and display equipment there. Initially, all route salespersons on Palombi’s team were listed as authorized to enter the storage unit and knew the combination to the lock. In July 1995, before leaving for a two-week vacation, Palombi replaced the combination lock with a keyed lock and took the only key with him so that no one could enter the unit while he was gone.

While Palombi was out of town, Gohlinghorst and two other Frito-Lay employees went to the storage unit to retrieve shelving equipment. They were not able to get into the storage unit because Palombi had the only key and the lock could not be cut. Gohlinghorst and the other two Frito-Lay employees had a conversation with the storage facility manager, Charles McGary. During this conversation, Gohlinghorst said “we’re going to get to the bottom of this” to McGary. One of the other employees with Gohlinghorst said “there were problems in the company” with Palombi. Another said he believed that “there was something going on in the unit.” McGary inferred from the conversation with Gohlinghorst and others that Palombi had stolen from Frito-Lay or done something else wrong.

Shortly after Palombi returned from vacation, Gohlinghorst terminated Palombi’s employment with Frito-Lay. Palombi sought and obtained employment with Tombstone Pizza, Inc. Tombstone hired Palombi as a route salesperson at half of his management salary at Frito-Lay. Tombstone told Palombi that he would soon be promoted into a management position. Palombi was not promoted into a management position at Tombstone and later left for another job.

Case No. A99A1890

1. Palombi contends that the trial court erred in granting Goh-linghorst summary judgment on his defamation claim. Palombi argues that Gohlinghorst was liable for slander per se for making a fálse statement “against [him] in reference to his trade, office, or profession, calculated to injure him therein.” OCGA § 51-5-4 (a) (3). “To be actionable, a communication must be both false and malicious, and the burden of proving a statement’s falsity is on the plaintiff.” (Citations and punctuation omitted.) Jaillett v. Ga. Television Co., 238 Ga. App. 885, 888 (520 SE2d 721) (1999).

The only allegedly defamatory statement attributed to Goh-linghorst was “we’re going to get to the bottom of this” in the conversation with McGary. Palombi does not contend that Gohlinghorst said that Palombi had stolen company property. In the context of a supervisor’s attempt to enter a storage unit rented by an employee, saying “we’re going to get to the bottom of this” would suggest to a reasonable listener at most that the speaker suspects wrongdoing and intends to investigate. See Bullock v. Jeon, 226 Ga. App. 875, 877 (2) (487 SE2d 692) (1997). By its inherent expression of ignorance of the facts, the phrase does not amount to a statement by the speaker that wrongdoing has occurred. Cf. Jaillett, 238 Ga. App. at 891 (describing a customer as having been “ripped off” “might imply that the speaker is aware of undisclosed facts showing that the plaintiff has acted dishonestly”).

Furthermore, the fact that McGary inferred from the conversation with Gohlinghorst and others that Palombi had stolen from Frito-Lay or done something else wrong does not subject Goh-linghorst to liability for slander per se under OCGA § 51-5-4 (a) (3). To determine whether a declaration constitutes slander per se, the court looks to “the plain import of the words spoken” and will not enlarge their meaning by innuendo. Parks v. Multimedia Technologies, 239 Ga. App. 282, 293 (4) (521 SE2d 207) (1999). The declaration “we’re going to get to the bottom of this” was not sufficient as a matter of law to subject Gohlinghorst to liability for uttering a false statement calculated to injure Palombi in reference to his trade. See Lepard v. Robb, 201 Ga. App. 41, 42 (1) (410 SE2d 160) (1991) (summary judgment was proper because request that employee not return to employer’s premises did not contain hurtful innuendo regarding employee’s character or behavior and therefore was not slanderous). Because Palombi failed to produce evidence creating a jury issue as to whether Gohlinghorst made any defamatory statements, the trial court did not err in granting Gohlinghorst’s motion for summary judgment on this claim.

2. Palombi contends that the trial court erred in granting Goh-linghorst and Frito-Lay summary judgment on the negligent supervision claim. Palombi seeks to hold Gohlinghorst and Frito-Lay liable for allegedly defamatory statements made by various Frito-Lay employees to Tombstone employees about the reasons for Palombi’s termination. Palombi, however, cites no authority for holding an employer liable for harm caused by workplace gossip under a negligent supervision theory. Furthermore, the doctrine of respondeat superior does not apply in slander cases. Lepard v. Robb, 201 Ga. App. at 42 (1).

3. Palombi contends that the trial court erred in granting Frito-Lay summary judgment on Palombi’s tortious interference claim.

To recover under a theory of tortious interference with business relations, [Palombi] must demonstrate financial injury- and must show that [Frito-Lay]: (1) acted improperly and without privilege; (2) acted purposely and with malice with intent to injure; and (3) induced a third party or parties not to enter into or continue a business relationship with him.

Watkins & Watkins, P.C. v. Colbert, 237 Ga. App. 775, 777 (516 SE2d 347) (1999).

In this case, Palombi contends one may reasonably infer that his failure to be promoted into a management position at Tombstone was caused by false information provided by Frito-Lay employees. The evidence is undisputed, however, that Tombstone did hire Palombi, despite any statements made by agents of Frito-Lay, and did not discontinue that relationship because of any statements made by agents of Frito-Lay. In the absence of any evidence that agents of Frito-Lay induced Tombstone not to enter into or continue a business relationship with Palombi, summary judgment was properly granted. La Petite Academy v. Prescott, 234 Ga. App. 32, 33 (1) (506 SE2d 183) (1998).

4. Palombi contends that the trial court erred in granting Goh-linghorst summary judgment on Palombi’s tortious interference claim. Specifically, Palombi contends that Gohlinghorst, acting as a third party to Palombi’s employment contract with Frito-Lay, wrongfully procured Palombi’s termination for personal reasons. “[I]t is essential to a claim of tortious interference with contractual relations that the plaintiff establish that the defendant is a ‘third party,’ i.e., a ‘stranger’ to the contract with which the defendant allegedly interfered.” Atlanta Market Center Mgmt. Co. v. McLane, 269 Ga. 604, 608 (2) (503 SE2d 278) (1998). In Atlanta Market Center, the Supreme Court recognized that a claim of tortious interference with contract may be maintained against only a limited class of entities. Id. at 610. Specifically, an employee’s supervisor is not a stranger to an employment contract. Id. at 609 (approving Hylton v. American Assn. for Vocational &c. Materials, 214 Ga. App. 635 (448 SE2d 741) (1994)). Gohlinghorst was Palombi’s supervisor and therefore cannot be held liable for interfering with Palombi’s employment contract.

Case No. A99A1891

5. Palombi contends that the trial court erred in dismissing his libel claim. Two months after Frito-Lay and Gohlinghorst filed their motion for summary judgment, Palombi filed his amended complaint which recast Count 1, his claim for defamation. Frito-Lay and Goh-linghorst then filed a motion to dismiss Palombi’s claim for libel on the grounds that the claim for libel did not relate back to the filing of the original complaint and any new claim was time-barred.

“Where there is nothing in the record to indicate that the trial court failed to consider appellants’ amendment before ruling on appellees’ motion for summary judgment, we assume the amendment was properly considered.” (Citation and punctuation omitted.) Circle H Dev. v. City of Woodstock, 206 Ga. App. 473, 475 (2) (425 SE2d 891) (1992). In this case, although Palombi’s amended complaint added factual averments regarding statements contained in a memo written by Frito-Lay employee Robert Brigman, those allegations were embraced in the claim for defamation set out in the original complaint. Indeed, Palombi affirmatively claims that his amended complaint “merely clarified and made more specific the general allegations set forth in the initial Complaint.” Palombi was required to concede that his libel claim arose out of the conduct, transaction or occurrence set forth in the original complaint; otherwise, the amended complaint would not relate back to the original complaint, and the libel claim would be time-barred. OCGA §§ 9-11-15 (c); 9-3-33.

Decided November 30, 1999.

Brock, Clay, Calhoun, Wilson & Rogers, Ernest L. Gunn TV, Candace M. Kolias, for appellant.

Drew, Eckl & Farnham, Stephen W. Mooney, Nancy F. Rigby, for appellees.

Furthermore, Palombi’s counsel argued the merits of the motion to dismiss the libel claim at the summary judgment hearing. There is nothing in the record to indicate that the trial court failed to consider Palombi’s amendment to his complaint before ruling on the motion for summary judgment. Thus, the trial court’s order granting Frito-Lay and Gohlinghorst summary judgment disposed of Palombi’s defamation claim in its entirety, including the libel piece based on the Brigman memo. Vasche v. Habersham Marina, 209 Ga. App. 263, n. 1 (433 SE2d 671) (1993). The trial court’s second order, granting the motion of Frito-Lay and Gohlinghorst to dismiss the libel claim, was superfluous in that the libel claim was no longer pending. William Goldberg & Co. v. Cohen, 219 Ga. App. 628, 633-634 (1) (c) (466 SE2d 872) (1995). Having found no error in the trial court’s grant of summary judgment on the defamation claim, we likewise find no error in the trial court’s housekeeping order which had no additional effect on Palombi’s action.

Judgments affirmed.

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


text:
    A99A2063.
    MANLEY et al. v. WILLIS et al.
    (526 SE2d 370)
   Ellington, Judge.

Larry and Brenda Manley sued Cotton States Mutual Insurance Company and its agent, Jim Willis, for damages arising from the cancellation of their farm owners’ fire policy which provided coverage for property damage and personal liability. The trial court granted the defendants’ motions for summary judgment. The Manleys appeal and contend that material questions of fact preclude summary judgment. We disagree and affirm.

Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. OCGA § 9-11-56 (c). A de novo standard of review applies to an appeal from a grant of summary judgment, and we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant.

Matjoulis v. Integon Gen. Ins. Corp., 226 Ga. App. 459 (1) (486 SE2d 684) (1997).

Viewed in this light, the evidence shows that Cotton States initially covered the Manleys’ farm in 1987 and renewed the policy annually for ten years. Several applications signed by the Manleys indicated that no business other than farming was being conducted on the property. Throughout the coverage period the Manleys boarded and trained horses on the property. Beginning in 1995, the Manleys conducted horse shows and rodeo-type events to which the public was invited through advertisements. The Manleys contend that they discussed the nature and extent of their horse-related activities with Willis throughout the coverage period. Willis, however, specifically denied knowing about the Manleys’ commercial horse business before December 1997.

In December 1997, Willis informed Cotton States for the first time that the Manleys were conducting a commercial horse business on their farm. It is undisputed that Cotton States had no actual knowledge of the Manleys’ commercial horse business before December 1997. In January 1998, Cotton States issued a notice of cancellation of the policy, giving “change in exposure: horse operations” as the reason for the cancellation. The Manleys claim that due to the “stigma of cancellation,” they have lost the ability to obtain insurance at normal rates, and “it is the increase in insurance premiums over standard rates which constitute the actual damages” they seek. The Manleys do not seek coverage for any loss they have sustained, nor do they claim that Cotton States did not comply with applicable notice requirements. See OCGA §§ 33-24-46 (c) (1); 33-24-44.

1. Cotton States’ right to cancel the Manleys’ policy was limited by contract and by statute. The policy provided three reasons that Cotton States could terminate the Manleys’ renewal policy: (1) because the policy was obtained through material misrepresentation, fraudulent statements, omissions or concealment of fact material to the acceptance of the risk or to the hazard assumed by Cotton States; (2) because there has been a substantial change in the risk assumed by Cotton States since the policy was issued; or (3) because wilful and negligent acts or omissions by the Manleys had substantially increased the hazards insured against. These contractual protections closely tracked the statutory limitation on the cancellation of residential fire renewal policies. See OCGA § 33-24-46 (c) (2).

There can be no question that both the risk of property damage and the risk of personal liability increase dramatically when premises are used to conduct horse shows and rodeos with public attendance than when those same premises are used as a residence and for ordinary farm activities only. See Pearl Assurance Co. v. Southern Wood Products Co., 200 F2d 898 (5th Cir. 1952) (applying Georgia law) (converting premises from a warehouse and office building into a plywood manufacturing plant constituted a material increase in hazard sufficient to void policy); American Ins. Co. v. Peyton, 272 F2d 58 (4th Cir. 1959) (applying Virginia law) (where premises insured as an “owner occupied dwelling” were used as a lunchroom and concession store, such use constituted an increase in the hazard sufficient to suspend coverage); McCoy v. Pacific Coast Fire Ins. Co., 164 S2d 386 (La. App. 1964), rev’d on other grounds, 178 S2d 761 (La. 1965) (where premises were insured as apartments, operating a restaurant on the premises constituted an increase in the hazard sufficient to void the policy); 19 ALR3d 1336, § 3 (a).

There was no evidence before the trial court that Cotton States cancelled the Manleys’ policy for any reason other than that given in the cancellation notice: that there had been a change in the risk which it had assumed. Both Georgia law and the contract permitted cancellation for such a substantial increase in the hazard the policy insured against. OCGA § 33-24-46 (c) (2) (C). Because Cotton States cancelled the Manleys’ policy in compliance with the contract and with applicable regulations, summary judgment on their wrongful cancellation claim was appropriate.

2. With regard to the Manleys’ claim against Willis, the insurance agent, we have found no authority for holding him individually liable for Cotton States’ cancellation of the Manleys’ policy. Further, it is undisputed that Willis personally had no part in the decision to cancel the Manleys’ policy. To the extent that the Manleys claim that Willis is individually liable because he knew about their horse business, knew that Cotton States would not insure their farm and residence if he disclosed the horse business, and negligently or fraudulently “concealed the existence of the commercial activity in which the [Manleys] were engaged from his principal Cotton States” so that Cotton States would issue a policy it would otherwise refuse, the Manleys have not stated a viable claim under Georgia law. “We have found no authority indicating an applicant may recover from the agent for fraud in making material misrepresentations for the purpose of inducing an insurer to provide coverage which the applicant could not otherwise obtain.” (Citation and punctuation omitted.) Bolin v. Mass. Indem. &c. Ins. Co., 203 Ga. App. 570, 573 (3) (417 SE2d 325) (1992). Because the Manleys have not stated a claim for holding Willis personally liable for Cotton States’ cancellation of the policy, the trial court did not err in granting Willis’s motion for summary judgment. See 17 Encyclopedia of Ga. Law, Ins., § 308.1.

Decided November 30, 1999.

Martin L. Fierman, for appellants.

Webb, Carlock, Copeland, Semler & Stair, Wade K. Copeland, Scott W. Book, Ashley E. Sexton, Bovis, Kyle & Burch, James E. Singer, Jana B. Tabor, for appellees.

Judgment affirmed.

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


author: McMurray, Presiding Judge.

text:
    A99A2118, A99A2119.
    BIBB COUNTY v. HIGGINS et al.; and vice versa.
    (526 SE2d 379)
   McMurray, Presiding Judge.

Lt. James E Higgins worked for the Bibb County Sheriff’s Department, primarily in field police work, from 1979 until his death in October 1993. On his last day at work, Lt. Higgins became sick with a severe headache and went home early. He was admitted to the hospital later that night and diagnosed as having suffered an acute intracerebral hemorrhage or stroke secondary to severe and uncontrolled hypertension. Two days later, Lt. Higgins died.

Lt. Higgins’ former wife, as next friend of his minor children, brought a claim for workers’ compensation benefits against Bibb County, claiming that job-related stress and exertion contributed to or aggravated his hypertension causing his fatal stroke. Relying upon the testimony of Bibb County’s medical expert, Dr. Michael Hilton, as well as that provided by other witnesses, the administrative law judge (ALJ) determined there was insufficient competent and credible evidence to prove that Lt. Higgins’ stroke arose out of and in the course of his employment with Bibb County. Finding Higgins’ stroke was not a work-related injury, the ALJ denied the claim. Bibb County appeals the superior court’s reversal of the AL J’s award denying the claim and subsequent affirmance by the appellate division of the Workers’ Compensation Board. The claimant cross-appeals thereon. Held:

Case No. A99A2118

1. Bibb County contends that the “any evidence” standard of review required the superior court to affirm the appellate division’s decision. See Calhoun v. Mergentine/KVN & Horn Fruin-Colnon, 165 Ga. App. 610 (1) (302 SE2d 401). In this regard, Bibb County asserts that the superior court erred in reversing the award of the ALJ as based upon expert opinion testimony provided by Dr. Hilton not supported by facts otherwise proven of record. Claimant does not challenge Dr. Hilton’s testimony as not elicited upon a properly posed hypothetical question. Rather, claimant argues that Dr. Hilton based his testimony upon “gross misrepresentations” of the facts posed to him, and, citing Kines v. City of Rome, 220 Ga. App. 732, 733-734 (470 SE2d 311), asserts that the superior court properly reversed the AL J’s award as an exception to the “any evidence” standard of review. We disagree.

In Kines, we held that an ALJ’s award upon evidence resulting from a hypothetical question flawed by omitted facts was clearly erroneous requiring our review for the correction of error. Id. In the instant circumstances, the adequacy of the factual predicate for the hypothetical questions asked Dr. Hilton is not in issue. As a consequence, Kines is here inapposite. Neither do we conclude that Dr. Hilton misrepresented the facts pertinently supporting the hypothetical questions asked of him. Rather he. opined thereon as he was asked to do. For instance, while the claimant contends that Dr. Hilton wrongly characterized Lt. Higgins’ blood pressure as consistently elevated upon repeated checks, claimant does so in the face of evidence to the contrary otherwise of record and without noting that Dr. Hilton gave such testimony as the basis for his conclusion that Lt. Higgins’ medication was ineffective. Claimant also contends that Dr. Hilton misrepresented the facts in testifying that Lt. Higgins did not take his medication, had a family history of hypertension, ate poorly, and complained of problems not associated with his work. Dr. Hilton’s testimony was not that Lt. Higgins did not take his medication. Instead he opined that there was evidence in Lt. Higgins’ medical records which indicated that such medication was ineffective — this in light of the above-referenced blood pressure readings. The complained-of facts are in the record apart from Dr. Hilton’s testimony and are undisputed on appeal. Even if this were not so, “[t]he sufficiency of the facts supporting an expert’s opinion usually goes to the weight, rather [than] admissibility, of the expert’s testimony. See Krause v. Vance, 207 Ga. App. 615, 616 (428 SE2d 595) (1993).” Id. at 733.

Decided November 30, 1999

Sell & Melton, John A. Draughon, Lauren L. Benedict, for appellant.

McKenney, Jordan & Carey, Jane M. Jordan, Clifford B. Higgins, for appellees.

Construing the evidence most favorably to the board’s award as we are required to do, Calhoun v. Mergentine/KVN & Horn Fruin-Colnon, 165 Ga. App. 610 (1), supra, we conclude that the board weighed the evidence; there was evidence to support the award and the superior court was without authority to reverse it.

Case No. A99A2119

2. In the cross-appeal, claimant contends that the ALJ committed reversible error in basing his award, in part, upon medical treatises not admitted in evidence. While the ALJ erred in doing so, Suarez v. Suarez, 257 Ga. 102, 103 (1) (355 SE2d 649) (“Books of science and art are not admissible in evidence to prove the opinions of experts announced therein. (Cit.)”), we conclude that such error was harmless for want of prejudice inuring to claimant’s detriment. Tarle-ton v. Griffin Fed. Sav. Bank, 202 Ga. App. 454, 455 (2) (b) (415 SE2d 4) (“An appellant must show harm as well as error to prevail on appeal; error to be reversible must be harmful. (Cits.)”).

The opinions complained of as not in evidence were: (a) that hypertension is one of the most important factors increasing the risk of a stroke, and (b) that hypertension “predisposes” one to intracer-ebral hemorrhage and that antihypertension therapy best minimizes the potential for stroke. Inasmuch as this was merely cumulative of Dr. Hilton’s testimony, no more than harmless error resulted upon the ALJ’s consideration of the medical treatises for such opinions. See Russell v. Reliance Ins. Co., 154 Ga. App. 584, 585 (269 SE2d 79).

Judgment affirmed in Case No. A99A2119. Judgment reversed in Case No. A99A2118.

Johnson, C. J., and Phipps, J., concur.

       We granted Bibb County’s application for discretionary appeal on April 21, 1999.