text:
    A02A0621.
    LITTLE et al. v. CHESSER et al.
    (568 SE2d 54)
   Pope, Presiding Judge.

Marni Owens sued Louise Little and Maxine Bullock for interference with easement. Owens’ husband, C. J. Chesser, made a claim against Little for malicious prosecution and arrest. The jury awarded $3,000 to Owens on her claim of interference with easement and $5,000 to Chesser on his claim against Little for malicious arrest. The jury also awarded Owens $12,500 as punitive damages against Little and $12,500 as punitive damages against Bullock. Little and Bullock appeal, claiming that the trial court erred in denying their motions for a directed verdict, judgment notwithstanding the verdict (j.n.o.v.), and a new trial because (1) the jury’s award to Owens for actual damages on her claim for interference with easement was excessive and unsupported by the evidence, (2) the jury’s award to Chesser on his claim for malicious arrest was excessive and unsupported by the evidence, and (3) the issue of punitive damages was improperly submitted to the jury. For reasons set forth below, we disagree and affirm.

Viewed in a light most favorable to the verdict, the record shows that Chesser and Owens accessed their farm through an unpaved road which ran through property owned jointly by Little and Bullock. The right to use and maintain the road was established by a reciprocal easement contained in a court order. Chesser and Owens were married, but the rights established by the easement belonged to Owens as owner of the farm.

In 1998, a tornado came through the area and blocked the road with fallen trees and other debris. The road was partially cleared with the help of volunteers. A few days later two tires on Chesser’s horse trailer were flattened when the trailer hit a log lying in the curve of the roadway. Logs continued to reappear in the roadway after Chesser moved them. Owens went to investigate and saw Bullock put logs on the road and turn the stobs up. Owens took photographs, and Chesser later made a videotape of Bullock moving logs onto the road, and Bullock admitted to placing the logs when Chesser and Owens asked her about it.

The reciprocal easement gave Owens the right to maintain the road. Shortly after the tornado, Chesser and Owens decided to repair the road. Before beginning the physical work, Chesser hired a surveyor to mark the easement. The surveyor marked the boundaries of the roadway using three-foot-long sticks painted fluorescent orange. Chesser then hired Donald and Darren Alexander to clear and flatten the road within the surveyed area.

Shortly after the Alexanders began work, Bullock stopped them by standing in the middle of the road. For over an hour, Chesser read and reread to Bullock the court order that defined the reciprocal easement; she then walked back to her house and work resumed. Little, who was in town at work, learned about the roadwork through a telephone call from Bullock, who told her that “the dozers were tearing up everything” on their property. Little became very upset and left her job to go to the courthouse, where she swore out a warrant for Chesser’s arrest based on a violation of the court order establishing the easement. Little had no personal knowledge of Chesser’s activities, but she falsely swore to the magistrate who issued the warrant that she did have personal knowledge. That afternoon, a sheriff’s deputy drove out to the road to execute the arrest warrant for Chesser. The deputy told Chesser that he had come to arrest him, but allowed Chesser’s employee to drive him to the White County Detention Center, where Chesser waited in the detention area for five hours before being allowed to go home.

When the Alexanders came back to work on the road two or three weeks later, Little and Bullock both interfered with the work; Chesser testified that approximately twelve hours of work were lost through interference by Little and Bullock, and that the Alexanders charged $100 an hour. Evidence also showed that Little and Bullock would slow traffic on the road by walking on it in front of a vehicle for an extended period of time, which would force the vehicle to travel at walking speed, and that on occasion Bullock would just stand in the middle of the road and stare at Chesser.

1. Little and Bullock claim that the trial court erred in denying their motions for a directed verdict, for j.n.o.v., and for a new trial because the jury’s damage award for interference with easement was excessive and not authorized by the evidence. We disagree. “The standards for granting a directed verdict or a judgment notwithstanding the verdict are the same. Where there is no conflict in the evidence as to any material issue, and the evidence introduced, with all reasonable deductions therefrom, shall demand a particular verdict, such verdict shall be directed.” Wesleyan College v. Weber, 238 Ga. App. 90, 92 (517 SE2d 813) (1999). The trial court did not err in denying Little’s and Bullock’s motions for a directed verdict or j.n.o.v. because the evidence authorized the jury to find for Owens on her claim for interference with easement.

Absent compelling evidence, we will defer to the ruling of the trial court on a motion for new trial based on inadequate or excessive damages. Moody v. Dykes, 269 Ga. 217, 222 (6) (496 SE2d 907) (1998). “The trial court’s decision on a motion for a new trial will be upheld on appeal unless it was an abuse of discretion.” Lisle v. Willis, 265 Ga. 861, 864 (3) (463 SE2d 108) (1995). “The question of damages is ordinarily one for the jury; and the court should not interfere with the jury’s verdict unless the damages awarded by the jury are clearly so inadequate or so excessive as to be inconsistent with the preponderance of the evidence in the case.” OCGA § 51-12-12 (a). The jury was charged as follows: “the measure of damages ... is the additional costs of repair to the easement, if you find any, which were necessitated by any improper interference with her road right-of-way, as well as any nominal damage which you . . . find would accrue as a result of any loss of use of such easement. . . .” Out-of-pocket costs authorized by the evidence that could be traced to acts of interference include twelve hours of time by the Alexanders and the cost of replacing two tires on the horse trailer, which could account for about half of the $3,000 award. The jury was also instructed that they could award nominal damages. It is unclear from the verdict how and on what basis the jury determined damages, but even if a substantial portion of the verdict was for nominal damages, we cannot say that the award was excessive. See Ponce de Leon Condos, v. Di Girolamo, 238 Ga. 188, 190 (3) (232 SE2d 62) (1977); Baker v. Wilson, 143 Ga. App. 488, 489 (1) (238 SE2d 587) (1977).

2. Little also claims that the jury’s award to Chesser for malicious arrest was improper, and that the trial court erred in denying her motion for a new trial on this ground. We again disagree. The trial court charged the jury: “Now, as to the claim of C. J. Chesser, I charge you that in an action in which the entire injury is to the peace, happiness, or feelings of the plaintiff, no measure of damages can be prescribed except in the enlightened conscience of impartial jurors.”

Little argues that the trial court determined that the proper measure of damages for the malicious arrest would be “vindictive damages” equal to double the actual damages — which she further argues would amount to nothing inasmuch as there were no actual damages. The trial court used the term “vindictive damages” in his discussions with counsel, but “Ga. L. 1987, p. 915, § 6[,] codified as OCGA § 51-12-6, repealed vindictive damages as a punitive damage and recreated such damages to the peace and happiness as a general damage, measured in the enlightened consciences of impartial jurors.” Sletto v. Hosp. Auth. of Houston County, 239 Ga. App. 203, 210, n. 2 (521 SE2d 199) (1999) (Eldridge, J., concurring specially). The trial court used outdated terminology in discussions with the lawyers, but charged the jury consistent with a claim for damages under OCGA § 51-12-6, authorizing assessment of damages in tort cases in which the entire injury is to the peace, happiness, or feelings of the plaintiff, and this measure of damages is appropriate for a claim for malicious arrest. See, e.g, Atlantic Zayre v. Williams, 172 Ga. App. 43, 47 (5) (322 SE2d 83) (1984). Given the measure of damages lay within the enlightened conscience of the jurors, the $5,000 award to Chesser for his malicious arrest was not excessive or unauthorized by the evidence.

Little further argues that, because of the order in which the jury received the charges on damages, the jury was under the impression that its damage award to Chesser on his claim of malicious arrest was an award for punitive damages. The jury was charged on punitive damages with regard to the interference with easement claim asserted by Owens, and the trial court then shifted to the charge on the malicious arrest claim, stating, “Now, as to the claim of Plaintiff C. J. Chesser. . . .” We find no error in the order in which the trial court presented the jury charge.

3. Little and Bullock further argue that the trial court erred in denying their motions for a directed verdict, j.n.o.v., and new trial because the issue of punitive damages for Owens’ claim for interference with easement was improperly submitted to the jury. The evidence shows a wilful and repetitive violation of Owens’ property rights. “If a person commits a trespass with knowledge that he is acting without right, exemplary or punitive damages may be awarded.” (Punctuation omitted.) Dalon Contracting Co. v. Artman, 101 Ga. App. 828, 836 (4) (115 SE2d 377) (1960). See also Tomberlin Assoc. &c. v. Free, 174 Ga. App. 167, 168-169 (3) (329 SE2d 296) (1985). The evidence authorized an award of punitive damages. Little and Bullock argue that the trial court nevertheless erred in presenting the issue of punitive damages to the jury because (1) the parties stipulated that punitive damages would not be available for Owens’ claim for interference with easement, and (2) the verdict form submitted to the jury was different from the verdict form which was read aloud and explained to the jury. They further claim that the proceedings violated their right to due process because they were denied an opportunity to defend against a claim for punitive damages. See Church v. Darch, 268 Ga. 237 (486 SE2d 344) (1997). We find that although the trial court may have erred, Little and Bullock acquiesced to the errors which they now assert in connection with the submission of punitive damages to the jury.

The amended complaint included a claim for punitive damages for obstruction of the driveway easement. Nevertheless, the parties stipulated during trial that punitive damages would not be available for Owens’ claim for interference with easement:

The Court: Unlawful interference with easement. You agree there’s no way [Owens] can get punitive damages on unlawful interference of easement.
Plaintiff’s counsel: That’s my position today. . . .
The Court: Then I will take that as a stipulation of the parties.

Despite the stipulation, and without indication on the record that the stipulation was withdrawn, the trial court charged the jury that Owens had made a claim for punitive damages and instructed the jury on the definition of punitive damages and the burden of proof.

The form of the verdict submitted to the jury allowed the jury to award punitive damages on Owens’ claim for punitive damages; defense counsel reviewed the written verdict form before it was given to the jury; a judgment for punitive damages on Owens’ claim was returned by the jury; and the trial was bifurcated and a separate proceeding was held to determine the amount of punitive damages. All this occurred without objection from Little or Bullock that punitive damages were unavailable because of the previous stipulation or that they were unfairly surprised by the form of the verdict submitted to the jury.

It is not clear from the trial record why the claim for punitive damages was presented to the jury after a stipulation was made that such damages would not be available, but the post-trial hearings indicate that the claim was not presented to the jury by the trial court sua sponte and without warning. Counsel for the plaintiffs testified that the decision by the trial court to submit punitive damages to the jury was made in an unrecorded discussion among counsel and the trial court. Defense counsel testified that he recalled the trial court commenting in an unrecorded charge conference, “Hey, why can’t Mami Owens get punitive damages?” The trial court also indicated at the post-trial hearing that he did not simply introduce the punitive damages claim without telling anyone. But for whatever reason that the charge and verdict form actually given to the jury were inconsistent with the stipulation against punitive damages, if defendants thought they need not or had not defended against punitive damages by reason of the stipulation, they had the opportunity and the duty to object once they knew that a punitive damages claim would be submitted to the jury. A litigant cannot acquiesce to a trial court’s ruling and then assign error to it later. See Plaza Properties v. Prime Business Investments, 273 Ga. 97 (538 SE2d 51) (2000); Upshaw v. Cooper, 127 Ga. App. 690, 692 (194 SE2d 618) (1972). When hearing an improper verdict, a litigant cannot sit by silently and hope to gain a mistrial by failing to object. See Witty v. McNeal Agency, 239 Ga. App. 554, 560 (3) (a) (521 SE2d 619) (1999). And not only did Little and Bullock have an opportunity to object through the end of the bifurcated proceedings, they could have indicated their disagreement before the issue of punitive damages even reached the jury. The discrepancy between the form of the written verdict and the verdict form read orally to the jury did not amount to reversible error. Although the judge did not read the line which authorized the award of punitive damages, the jury was properly charged on punitive damages and defense counsel reviewed the written form submitted to the jury.

Decided May 10, 2002

Reconsideration denied July 1, 2002

Tina M. Richards, for appellants.

Carey, Jarrard & Walker, Jack M. Carey, Jerry C. Carter, Jr., Don H. Ferguson, for appellees.

Judgment affirmed.

Ruffin and Barnes, JJ, concur.


source: Caselaw Access Project

author: Blackburn, Chief Judge.

license: Public Domain

text:
    A02A0886.
    PALMER v. CONSTANTIN.
    (568 SE2d 79)
   Blackburn, Chief Judge.

Appellant Alice Palmer appeals the trial court’s grant of appellee Andre Constantin’s motion to dismiss for insufficient service of process, maintaining that the trial court: had no jurisdiction to rule on the issue of sufficiency of service of process; erred in refusing to allow discovery before ruling on the motion to dismiss; erred in finding that she did not exercise diligence in effecting service; and erred in dismissing the case when the record supported the conclusion that Constantin’s roommate had been served. For the reasons set forth below, we affirm.

On December 30, 1998, Palmer filed an action in Gwinnett County against Constantin for injuries allegedly arising out of a slip and fall accident which occurred on January 10, 1997. The original action was voluntarily dismissed on June 23, 2000, and the present renewal action was filed on September 12, 2000. The sheriff returned service non-est on September 14, 22, and 28, 2000.

On November 21, 2000, Constantin filed his special appearance defenses and answer, in which he raised the defense of insufficiency of service of process. Palmer served Constantin with an interrogatory requesting his correct address on November 28, 2000, and Constantin provided Palmer with his correct address on December 4, 2000.

On February 5, 2001, Constantin filed his motion to dismiss. On March 5, 2001, the trial court served a notice of no service calendar, setting a hearing on the motion for March 29, 2001. On March 28, 2001, Palmer responded to Constantin’s motion to dismiss and sought appointment of a special process server.

The hearing on the motion to dismiss was held as scheduled. On April 11, 2001, Palmer moved to transfer the case to Fulton County. On April 13, 2001, the trial judge granted Constantin’s motion to dismiss without ruling on Palmer’s motion.

1. In her first enumeration of error, Palmer maintains that the trial court had no jurisdiction to rule on the issue of sufficiency of service of process since Constantin’s defense of lack of personal jurisdiction and her own motion to transfer the case to Fulton County informed the trial court that it had no personal jurisdiction over Constantin. Palmer further argues that the trial court had no option but to transfer the case to Fulton County and refrain from making any decision on the merits of any issues. We disagree.

The motion to dismiss was granted based on the trial court’s determination that service of process was insufficient, not because the court determined that it did not have personal jurisdiction over Constantin. An order granting an OCGA § 9-11-12 (b) (5) motion to dismiss due to insufficiency of service of process is a matter of abatement only, and not a judgment on the merits; accordingly, the trial court retained jurisdiction to consider and grant Constantin’s motion to dismiss. Exum v. Melton.

2. Palmer next contends that the trial court erred in refusing to allow discovery before ruling on the motion to dismiss. She claims that because the dismissal is, in essence, a judgment on the merits of the case, it becomes a motion for summary judgment, and that under OCGA § 9-11-56 (f), the court should have granted a continuance so that she could conduct discovery.

As explained above, an order granting a motion to dismiss due to insufficiency of service of process is a matter of abatement only, and not, as Palmer contends, a judgment on the merits. Therefore, in determining whether there was insufficient service of process, the trial court did not convert the motion to dismiss into one for summary judgment. Franchell v. Clark.

In addition, Constantin “had no obligation whatsoever to respond to [Palmer’s] discovery requests until such time as [he] was served with process.” Traver v. McKnight. Until that time, the trial court had no authority to compel compliance with discovery requests.

3. Palmer next contends that the trial court erred in finding that she did not exercise diligence in effecting service upon Constantin. We begin by noting that, “[a]bsent a showing of an abuse of discretion, a trial court’s finding of insufficient service of process must be affirmed.” Franchell v. Clark, supra at 131. Further, in cases in which the statute of limitation has expired and the defendant has made an appearance in court raising an insufficiency of service of process defense, we apply the standard of “greatest possible diligence” in assessing a plaintiff’s attempts at service. Davis v. Bushnell.

In this case, during the nearly two-month period between the time the sheriff returned service non-est on September 14, 22, and 28, 2000, and the time Constantin filed his special appearance defenses and answer on November 21, 2000, Palmer made no effort to have Constantin served. After Constantin raised the defense of insufficiency of service of process, Palmer was “obligated to exercise, not due diligence, but the greatest possible diligence to ensure proper and timely service.” (Punctuation omitted.) Ingraham v. Marr. However, since the filing of Constantin’s defenses and answer, Palmer has attempted only once, on January 18, 2001, to have Constantin served. In fact, Constantin has never been served.

Under these circumstances, we conclude that the trial court did not err in finding that Palmer did not exercise the greatest possible diligence in having Constantin served.

4. In her final enumeration of error, Palmer claims that the trial court erred in dismissing the case when the record would either reflect or lead to the inference that Constantin’s roommate had been served. Under OCGA § 9-11-4 (e) (7), a defendant may be served by leaving copies of the service papers at his “dwelling house or usual place of abode with some person of suitable age and discretion then residing therein.” In this case, however, there is no evidence that service papers were left with Constantin’s roommate. This enumeration of error is, therefore, without merit.

Judgment affirmed.

Johnson, P. J., and Miller, J., concur.

Decided June 13, 2002

Reconsideration denied July 1, 2002

Glenville Haldi, for appellant.

Swift, Currie, McGhee & Hiers, Lynn M. Roberson, for appellee.

        Exum v. Melton, 244 Ga. App. 775, 776 (536 SE2d 786) (2000).

        Franchell v. Clark, 241 Ga. App. 128, 131 (3) (524 SE2d 512) (1999).

        Traver v. McKnight, 208 Ga. App. 278, 279 (430 SE2d 164) (1993).

        Davis v. Bushnell, 245 Ga. App. 221, 222 (537 SE2d 477) (2000).

        Ingraham v. Marr, 246 Ga. App. 445, 447 (540 SE2d 652) (2000).


author: Mikell, Judge.

text:
    A02A0244.
    DUKES v. THE STATE.
    (568 SE2d 151)
   Mikell, Judge.

A Fulton County jury found Mark Dukes guilty of aggravated assault. On appeal, Dukes claims the trial court erred in (1) refusing to give his request for a charge on no duty to retreat, (2) instructing the jury that excessive force in self-defense is unlawful without also giving a charge on no duty to retreat, and (3) failing to ask that the jury consider the totality of circumstances in which Dukes found himself in determining whether he used excessive force. For reasons which follow, we find that these claims have no merit and affirm.

Viewed in a light most favorable to the verdict, the record shows that on the morning of September 7, 1998, Desmond Shoulders ran up to Dukes to tell him that Dukes’s drug supplier wanted to see Dukes about an outstanding debt. Shoulders was a larger man than Dukes and was also Dukes’s longtime lover. Dukes told Shoulders that he did not have enough money to pay the drug supplier; Shoulders threw a $5 bill on the ground; Dukes picked up the money and threw it back. Shoulders, who had been smoking “crack” the previous two hours, punched Dukes in the face, and Dukes then pulled out a razor blade and used it to cut Shoulders. Dukes testified that after the initial confrontation, the two began walking toward the hospital, but Shoulders once more punched Dukes with his fists, and he responded by again cutting Shoulders with the razor blade.

Shoulders did not appear at trial to testify. The State presented the eyewitness testimony of Bobby McFarland, who, on the morning of September 7, 1998, saw two men “scuffling” until one broke away and ran, covered with blood. McFarland identified the man who did not run as Dukes. Dukes saw McFarland and threatened him with a razor blade. Dukes demanded and then took McFarland’s cash. When McFarland went to the police station to report the robbery, he noticed the man he had previously seen running from Dukes, and he was still covered in blood.

Officer Snowden saw Shoulders in front of the police precinct. Shoulders was bleeding and breathing heavily. Shoulders told Snowden that he had been cut by a man after trying to make a partial payment on a debt. Officer Sutton met with Shoulders, and, after getting a description and possible location of the suspect, found and detained Dukes, whom Shoulders identified as his attacker.

1. Dukes claims the trial court erred by failing to give his requested charge on no duty to retreat. Dukes asked the trial court to charge the jury that

One who is not the aggressor is not required to retreat before being justified in using such force as is necessary for personal defense, or in using force which is likely to cause death or great bodily harm, if one reasonably believes such force is necessary to prevent death or great bodily injury to himself or to prevent the commission of a forcible felony.

The rule in Georgia is that “if the person claiming self-defense was not the original aggressor there is no duty to retreat.” “[W]here self-defense is the sole defense, and the issue of retreat is raised by the evidence or placed in issue, the defense is entitled to a charge on the principles of retreat.” Self-defense was Dukes’s sole defense, but in order for a charge on no duty to retreat to be required, the issue of retreat must be raised by the evidence or placed in issue. A trial court’s failure to charge the jury on retreat has been found to be reversible error when the prosecution has raised the issue when questioning witnesses or in closing arguments. But here, and despite Dukes’s claims to the contrary, the prosecution did not introduce the issue of retreat in its cross-examination of Dukes, and there is nothing in the evidence that would otherwise raise the issue. The charge given by the trial court on the justified use of self-defense was consistent with OCGA § 16-3-21, and “the statutory charge on justification is sufficient in most cases.” In view of the evidence and the record, the trial court did not err in failing to give Dukes’s requested charge on no duty to retreat.

2. Dukes next argues that the trial court’s failure to charge on no duty to retreat was erroneous in view of its charge on excessive force. The trial court instructed the jury that: “When the force used exceeds that necessary for self-defense, the law considers the defender to be the aggressor. Self-defense is a lawful act, but if excessive force is used, the act becomes unlawful.” Dukes does not claim that the charge given is per se erroneous, but that the trial court impermissibly emphasized the State’s case by giving the charge on excessive force without an accompanying charge on no duty to retreat. In Renner v. State, our Supreme Court held that although the State can present evidence of and argue a criminal defendant’s flight, the trial court cannot charge the issue of flight to the jury. The Court questioned “[w]hether it is fair for a trial court to identify and explain the possible consequence of one circumstance, such as flight, and not others, which might even point to innocence.” This reasoning is not applicable here. It is one thing to charge on a circumstantial indicator of guilt, such as flight, without charging on other circumstantial evidence that might indicate innocence. But excessive force in self-defense may determine guilt; it is more than just a circumstantial indicator of guilt, and the trial court did not accrue any obligation to balance the charge given with another more favorable to the defense. We find that the trial court, by giving the charge on excessive force without also charging on no duty to retreat, did not “unduly stress the contentions of the State, at the same time ignoring the contentions of the accused.”

Decided July 1, 2002.

James J. Lacy, for appellant.

3. Lastly, Dukes claims the trial court erred in charging the jury when it failed to explain to the jury that they could consider the circumstances in which Dukes found himself in gauging whether Dukes’s reaction to Shoulders’s assault was excessive. In particular, Dukes claims the trial court erred in failing to explain to the jury that the “reasonable man” standard of self-defense would allow the jury to consider the totality of circumstances in which the defendant found himself. Dukes did not request such a charge, nor does he give an example of the charge that should have been given. The trial court did instruct the jury that: “A person is justified in using force against another person when and to the extent that he reasonably believes that such force is necessary to defend himself against the other’s imminent use of unlawful force.” The instruction given is consistent with OCGA § 16-3-21 (a). We find no error.

Judgment affirmed.

Andrews, P. J., and Phipps, J., concur.

Paul L. Howard, Jr., District Attorney, Anne E. Green, Assistant District Attorney, for appellee.

        Johnson v. State, 253 Ga. 37, 38 (315 SE2d 871) (1984).

        Ellis v. State, 245 Ga. App. 807, 808 (3) (539 SE2d 184) (2000), quoting Johnson, supra, 253 Ga. at 39. See also Glover v. State, 105 Ga. 597 (31 SE 584) (1898).

       See Johnson, supra, 253 Ga. at 39; Jackson v. State, 237 Ga. App. 746 (516 SE2d 792) (1999); Wainwright v. State, 197 Ga. App. 43, 44-45 (2) (397 SE2d 456) (1990).

       See Dumas v. State, 173 Ga. App. 227 (326 SE2d 1) (1984) (prosecutor did not raise issue of retreat, so no requirement to give instruction on no duty to retreat); Ward v. State, 254 Ga. 610, 611 (2) (331 SE2d 521) (1985) (State did not raise issue of retreat, and a failure to give charge on retreat not error even where justification was the sole defense).

        Conklin v. State, 254 Ga. 558, 567 (5) (b) (331 SE2d 532) (1985).

       260 Ga. 515, 517-518 (3) (b) (397 SE2d 683) (1990).

       See also Mobley v. State, 51 Ga. App. 459 (180 SE 755) (1935).

        Renner, supra, 260 Ga. at 517-518 (3) (b).

       (Punctuation omitted.) Mobley, supra, 51 Ga. App. at 460.

       See Nobles v. State, 201 Ga. App. 483, 492 (22) (411 SE2d 294). (1991).


author: Ruffin, Judge.

text:
    A02A0274.
    YANG v. WASHINGTON et al.
    (568 SE2d 140)
   Ruffin, Judge.

Chang Yang sued Dr. Carl Washington and the Emory Clinic, alleging medical malpractice after a laser procedure performed on her face left permanent scarring. Following a trial, a jury found in favor of the defendants. Yang filed a motion for new trial and a motion for attorney fees, both of which the trial court denied. On appeal, Yang challenges the trial court’s denial of both motions. Finding no error, we affirm.

1. Prior to reaching the merits of the appeal, we find it necessary to address the litigants’ failure to follow this Court’s rules. The record in this case consists of 17 volumes, containing thousands of pages. Court of Appeals Rule 27 (a) (1) provides, in pertinent part, that “[r]ecord and transcript citations must be to the volume or part of the record or transcript and the page-numbers that appear on the appellate records or transcript as sent from the court below” In this case, however, neither Yang nor the defendants reference the volume of the record as forwarded to this Court, but merely reference the record or transcript, generally. Given the size of the record, such general citations are, at best, minimally helpful. This is particularly true where, as here, the record is not chronological.

Moreover, Yang makes many factual assertions in her brief for which she fails to provide any citation to the record, general or otherwise. “ The burden is upon the party alleging error to show it affirmatively by the record.’ ” And it is well settled that we will not cull the record on behalf of a party. By failing to accurately and thoroughly cite the record, Yang risks that we will deem her claims unsupported and, therefore, abandoned. To the extent that Yang’s claims of error are supported, we address them on appeal.

2. In her first enumeration of error, Yang contends that the trial court erred in denying her motion for new trial. In reviewing such claim, we “view the evidence favorably to the prevailing party and determine whether there was any evidence at trial to support the verdict.” So viewed, the evidence shows that Yang suffers from cutaneous lupus, an autoimmune disease that caused the small blood vessels in her face to become more prominent. Yang’s dermatologist referred her to Dr. Washington to perform a laser procedure on the blood vessels.

Yang first saw Dr. Washington on June 18, 1995, and he suggested conducting a test procedure on a small patch of Yang’s face prior to performing a full-face procedure. The test was conducted on July 26,1995. When Dr. Washington saw Yang in his office on August 14, 1995, he noted “that the treated areas had successfully resolved,” and he scheduled a full-face procedure for September 27, 1995. The procedure was performed, and, during a follow-up visit on October 31, 1995, Dr. Washington noted that Yang demonstrated some hyper-pigmentation. Notwithstanding the hyper-pigmentation, Dr. Washington considered the first treatment a success. Yang returned to Dr. Washington on February 6, 1996. Based on Yang’s appearance on that date, Dr. Washington decided to move forward with a second full-face procedure, which was scheduled for March 14, 1996. Evidently, the second procedure did not go well, and Yang contends that she is “scarred for life.”

Yang sued both Dr. Washington and the Emory Clinic, alleging medical malpractice. After the jury rendered a verdict in favor of the defendants, Yang filed a motion for new trial, which the trial court denied. On appeal, Yang asserts that she was entitled to a new trial for the following reasons: (a) newly discovered evidence; (b) the trial court’s denial of her right to voir dire an expert witness; and (c) “due to illegal admission of evidence.” We address each assertion in turn.

(a) Newly Discovered Evidence. “The standard for granting a new trial on the basis of newly discovered evidence is well established.” The party seeking a new trial on this ground must demonstrate that (1) she learned of the evidence since the trial; (2) the late discovery did not result from lack of due diligence; (3) the evidence is so material that, if admitted, it would probably produce a different verdict; and (4) the value of the evidence is not merely cumulative. The moving party must also produce the affidavit of the witness himself or explain its absence. Finally, the party must show that the newly discovered evidence is offered for some purpose other than to impeach the credibility of a witness. To establish entitlement to a new trial, Yang must meet all the criteria.

Here, Yang argues that she is entitled to a new trial based upon newly discovered photographic slides that Dr. Washington took during her office visits. Rather than producing the actual slides during discovery, Dr. Washington produced photographs from the slides. The date October 31, 1995, is handwritten on four of the slides. The remaining two slides are dated November 15, 1995. Evidently, the dates were not included on the photographs produced during discovery. On appeal, Yang argues that the handwritten dates on the slides were “critical” to her case. According to Yang, the fact that the slides were dated October 31, 1995, shows that the pictures were taken on that date. Dr. Washington, however, testified at trial that the handwritten dates showed when he received the slides from the photo processing lab rather than the date the images were taken. Yang asserts that she is entitled to a new trial to establish when the slides were taken.

Contrary to Yang’s contention on appeal, she is not entitled to a new trial based upon this evidence. As stated above, the first showing Yang must make to secure a new trial is that the evidence came to light “since the trial,” in other words, that the evidence is indeed new. Here, it is undisputed that Yang learned of the slides during trial and that the slides were, in fact, tendered in evidence. Thus, she has not shown that such evidence qualifies as newly discovered.

Yang’s true argument is that, if she had been given the slides earlier, she would have been able to secure affidavits from photo lab representatives to show that, contrary to Dr. Washington’s testimony, “it would not take over three months for development of [the] slides.” The only conceivable purpose for tendering such evidence would be to impeach Dr. Washington’s testimony that the pictures were taken on July 26, 1995. As courts will not grant a motion for new trial based on newly discovered impeachment evidence, the trial court did not abuse its discretion in denying Yang’s motion.

Moreover, to the extent that the evidence may have had value beyond mere impeachment, “it is not so material that it would probably produce a different verdict.” This is particularly true as Dr. Washington testified unequivocally that his decision to proceed with a subsequent laser procedure was based upon his personal observation of Yang, rather than any slides or photographs. It follows that this claim of error presents no basis for reversal.

(b) Voir Dire of Expert Witness. Dr. Robert Adrien, who was called on behalf of Dr. Washington, testified — without objection — about his education, training, background, and experience regarding laser treatment for lupus patients. When Dr. Adrien was asked about the medical options available to a patient such as Yang, he responded that the “gold standard” treatment would be a pulse dye laser. Yang objected to the latter testimony, arguing that Dr. Adrien had not yet been tendered as an expert. Yang then requested an opportunity to voir dire Dr. Adrien to establish “his competency to render an opinion regarding the appropriate standard of care ... in Georgia.” The trial court stated that Yang could explore the issue on cross-examination, and Yang thanked the court. On appeal, Yang asserts that she is entitled to a new trial based upon the trial court’s refusal to let her voir dire Dr. Adrien. We disagree.

As this Court noted in Dimambro Northend Assoc. v. Williams,

[a]n expert witness is one who through education, training, or experience has peculiar knowledge concerning some matter of science or skill to which his testimony relates. The question of whether a witness is qualified to give his opinion as an expert is one for the court. His determination will not be disturbed except that it be manifestly abused.

Although the question of an expert’s qualification is for the court, a litigant is entitled to cross-examine a witness before the court determines whether such witness is an expert. A thorough and sifting examination permits the trial court to make its decision on the expert’s qualifications.

As Yang requested an opportunity to voir dire Dr. Adrien, the trial court erred in refusing her request. Nonetheless, we find no basis for reversal. Yang does not assert that her ability to cross-examine Dr. Adrien was curtailed. Following her cross-examination of the doctor, Yang moved to strike his testimony based upon his misapprehension of the standard of care. Although the trial court denied the motion, it considered Yang’s argument on the merits. Thus, we fail to see how Yang was prejudiced by the trial court’s error.

Moreover, it is evident that Dr. Adrien was well qualified to testify as an expert. Prior to Yang’s objection, Dr. Adrien testified that he is board certified in internal medicine and dermatology, lectures both nationally and internationally, has published over 20 medical articles, and has trained over 5,000 physicians in the use of surgical lasers. “Under these circumstances, it appears that it would have been an abuse of the trial court’s discretion to have stricken [Dr. Adrien’s] direct testimony,” notwithstanding Yang’s inability to question him on voir dire.

(c) Admission of Illegal Evidence. Yang contends that the trial court erred in admitting a “MALU Delivery Log” into evidence. According to Yang, the document tendered was an unauthenticated carbon copy that contained hearsay. In her brief, Yang argues that the “[a]dmissibility of the MALU Delivery Log was a hotly contested issue before trial and [her] motion in limine regarding same was denied.”

Although Yang contends that the trial court denied her motion in limine, she provides no citation to the record to support this contention. In so doing, she has failed to demonstrate that the error has been preserved for appeal, which constitutes waiver of the issue. “ Appellate judges should not be expected to take pilgrimages into records in search of error without the compass of citation and argument.’ ”

Even assuming that the error had been preserved for appeal, we find no basis for reversal. Although Yang argues strenuously in her brief that the trial court erred in admitting the evidence, she makes no attempt to demonstrate how she was harmed by such error. Indeed, in order for there to be reversal, there must be error triangulation, i.e., there must be, generally, (1) error, (2) contemporaneous objection, and (3) harm as a result of the error.

3. In her final enumeration of error, Yang argues that the trial court abused its discretion in failing to grant her motion for attorney fees, which she claims she was entitled to based upon the defendants’ pattern of discovery abuses. Assuming, for the sake of argument, that a litigant may obtain an award of assessed fees under these circumstances, we find no error.

Decided July 1, 2002.

Neal H. Howard, Joann Brown-Williams, William D. James, for appellant.

Allen & Weathington, Hunter S. Allen, Jr., Gary R. McCain, Kara A. Hicks, for appellees.

Ordinarily, discovery matters are within the trial court’s broad discretion, and we will not interfere with that decision absent clear abuse. Yang contends that the trial court abused its discretion in failing to sanction the defendants for their “willful” attempt to conceal evidence. A trial court’s determination of wilfulness, or lack thereof, will be affirmed if there is any evidence to support it. Here, there is ample evidence from which the trial court could have concluded that the defendants’ conduct was not wilful.

Yang’s claim of discovery abuse hinges upon the defendants’ failure to produce evidence, including the photographic slides. She presented her arguments to the trial court, which denied her motion. Implicit in the court’s order is a conclusion that the defendants’ conduct did not merit the imposition of sanctions. The trial court was authorized to reach this conclusion, and we will not disturb its decision on appeal.

Judgment affirmed.

Pope, P. J., and Barnes, J., concur.

       Yang also filed a motion for sanctions against the defendants for asserting a frivolous argument on appeal. Yang’s motion lacks merit and is hereby denied.

       (Emphasis supplied.)

        Watkins & Watkins, P.C. v. Colbert, 237 Ga. App. 775, 776 (516 SE2d 347) (1999).

       See id.

       See Parks v. Multimedia Technologies, 239 Ga. App. 282, 291 (3) (e) (520 SE2d 517) (1999).

        Camp v. EMSA, Ltd., 238 Ga. App. 482, 483 (518 SE2d 482) (1999).

       We note that Yang provides no citation to the record in support of her contention that the second full-face procedure resulted in scarring, much less that the scarring is permanent.

       (Punctuation omitted.) Kodadek v. Lieberman, 247 Ga. App. 606, 611 (4) (545 SE2d 25) (2001).

       See id.

       See id.

       See id.

       See id.

       See Leventhal v. Setter, 208 Ga. App. 158, 162 (2) (430 SE2d 378) (1993) (“A trial court’s denial of the motion for new trial will not be reversed absent an abuse of discretion.”) (punctuation omitted).

        McIntyre v. State, 207 Ga. App. 129 (1) (427 SE2d 99) (1993).

       169 Ga. App. 219 (312 SE2d 386) (1983).

       (Citations and punctuation omitted.) Id. at 220 (1).

       See id. at 222 (2).

       See id.

       See id.

       See id.

       Id.

       See Rolleston v. Estate of Sims, 253 Ga. App. 182, 185 (2) (558 SE2d 411) (2002).

       Id.

       See generally In re Vincent, 240 Ga. App. 876, 878 (2) (b) (525 SE2d 409) (1999) (“A party must show harm as well as error to prevail on appeal.”).

       See Meadows v. Barker, 241 Ga. App. 753, 754 (1) (526 SE2d 643) (2000) (proper remedy for late disclosure of evidence is postponement of trial or mistrial).

       See Santora v. American Combustion, 225 Ga. App. 771, 773 (2) (b) (485 SE2d 34) (1997).

       See Harvey v. Lindsey, 251 Ga. App. 387, 391-392 (2) (554 SE2d 523) (2001) (in contempt proceeding, trial court did not abuse discretion in determining conduct not wilful).

       We note the fact that the defendants produced photographs from the slides undercuts Yang’s argument that the failure to provide the actual slides was an attempt to conceal evidence.

       See Santora, supra.


author: Ruefin, Judge.

text:
    A02A0343.
    CANNON v. WESLEY PLANTATION APARTMENTS et al.
    (568 SE2d 137)
   Ruefin, Judge.

Felipe Cannon sued Wesley Plantation Apartments, alleging that his former landlord wrongfully retained a security deposit and fraudulently demanded additional money. Wesley Plantation denied Cannon’s allegations and counterclaimed, asserting that it was entitled to retain the security deposit. Wesley Plantation also sought an additional $543 for excessive damage to the apartment and payment of attorney fees pursuant to the lease agreement. Following a bench trial, the court found in favor of Wesley Plantation, and Cannon filed this appeal. For reasons that follow, we affirm.

The record demonstrates that, in April 1998, Cannon signed an apartment lease with Wesley Plantation that required him to pay a $100 security deposit. The lease provided that the deposit would be returned to Cannon

within 30 days after termination of this Agreement or surrender and acceptance of the apartment, whichever occurs last, if: (a) all obligations of Tenant have been performed, and (b) Apartment is not damaged and is left in its original condition, normal wear and tear excepted. The Deposit. . . may be applied by Agent to satisfy all or part of Tenant’s obligations under this Agreement but retention of the Deposit shall not prevent Agent from recovering additional damages and/or sums due.

Cannon notified Wesley Plantation of his intent to surrender the apartment on September 1, 1999. That same day, Gina Eads, an assistant manager at the complex, conducted a walk-through of the apartment with Cannon. According to Eads, she noted damage to the apartment that was not normal wear and tear. Eads then filled out a form noting the damaged areas, which included the carpet, the kitchen countertops, and the vinyl in the kitchen. Eads asked Cannon to sign the form, but he refused and claimed that the damage was normal wear and tear.

According to Wesley Plantation, the cost to repair the apartment was $751, which was offset by Cannon’s $100 deposit. Within three days of the September 1 walk-through, Wesley Plantation mailed to Cannon’s last known address a “Statement of Security Deposit Accounts” demanding that Cannon pay $651. In October 1999, Wesley Plantation mailed Cannon a revised statement, reducing the amount owed to $543. Wesley Plantation did not receive payment from Cannon, and it turned the matter over to a collection agency.

In May 2000, Cannon sued Wesley Plantation, alleging that the complex had “wilfully breached [his] contractual rights,” “wilfully failed and refused to return [his] security deposit” in violation of OCGA §§ 44-7-33, 44-7-34, and 44-7-35, and “fraudulently demanded [that he] pay . . . [$543] which [Wesley Plantation] know[s] is not owed or due.” The trial court ruled against Cannon and in favor of Wesley Plantation on its counterclaims, and this appeal ensued.

1. In his first enumeration of error, Cannon contends that the trial court erred in failing to adjudicate his claims “in Accordance with Stand [sic] Case Law.” Cannon quotes Oastler v. Wright for the proposition that “in cases of doubt, in contests between landlords and tenants, the issue will be resolved in favor of the tenant.” Cannon extrapolates from this sentence that, in all disputes between landlords and tenants, the tenant should win because the trial court must view the evidence in favor of the tenant. He then points to his own self-serving testimony and contends the trial court should have viewed this evidence “in the light most favorable” to him.

In attempting to interpret Oastler, Cannon grossly mischaracterizes the legal principles involved. Initially, we note that the quote from Oastler refers to “cases of doubt,” not all disputes. Moreover, that case is factually distinguishable. Oastler involves a forfeiture stipulation in a lease that the landlord attempted to enforce through a dispossessory action. The sentence preceding that quoted by Cannon is “[stipulations for forfeitures in leases are not favored by the courts.” As the parties had mutually departed from the terms of the lease, our Supreme Court declined to enforce a forfeiture stipulation based on late payment of rent where no demand for rent had been made. Thus, contrary to Cannon’s contention, Oastler is not the legal equivalent of baseball’s custom that a tie goes to the runner. In other words, when there is contradictory evidence in landlord-tenant disputes, the factfinder is not required to favor the tenant.

2. In his second enumeration of error, Cannon maintains that the trial court erred in finding in favor of Wesley Plantation on its counterclaims. In reviewing this alleged error, we note that Cannon’s mistaken belief that his testimony was entitled to greater deference colors his entire argument. Nonetheless, to the extent Cannon argues that legal error was committed, we address his contention on appeal.

At the crux of Cannon’s complaint is his contention that the evidence demanded judgment in his favor. In reviewing such contention, we construe the evidence in the light most favorable to support the trial court’s judgment. Moreover, in a bench trial, the trial court is the factfinder, and we will uphold its findings on appeal if there is any evidence to support them.

Decided July 1, 2002.

Felipe Cannon, pro se.

Christie, Toreno & Hatcher, Carrie L. Christie, Angela F. Carson, for appellees.

Cannon contends that he was entitled to the return of his security deposit based upon Wesley Plantation’s failure to comply with statutory provisions that govern a landlord’s ability to retain security deposits. We disagree.

Under OCGA § 44-7-33 (b), a landlord is required to inspect the apartment within three days after the tenant surrenders the apartment. OCGA § 44-7-34 (a) provides, in pertinent part, that a landlord must notify former tenants of its intent to retain the security deposit within one month after the termination of the lease or the surrender of the apartment, whichever occurs last.

Here, the evidence supports the trial court’s conclusion that Wesley Plantation complied with statutory requirements. Eads testified that the walk-through was conducted within three days. And a representative from Wesley Plantation’s corporate office testified that written notification of the company’s intent to retain the security deposit was timely mailed to Cannon. According to Cannon, however, he never received any statement setting forth the reasons for Wesley Plantation’s retention of the deposit. Rather than requiring actual receipt, however, the statute merely demands that the landlord mail the statement “to the last known address of the tenant via first class mail.” Given the evidence that Wesley Plantation complied with the law and the conflicting evidence of damage to the apartment beyond normal wear and tear, the trial court was authorized to enter judgment in favor of Wesley Plantation.

Judgment affirmed.

Pope, P. J., and Barnes, J., concur.

       Cannon also sued the collection agency, but he subsequently dismissed it as a party.

       201 Ga. 649 (40 SE2d 531) (1946).

       Id. at 652.

       Id.

       See id. at 653-654.

       Cannon cites three other cases in support of his novel proposition, which are equally unavailing. See Gay v. American Oil Co., 115 Ga. App. 18 (153 SE2d 612) (1967) (forfeiture stipulation in a lease); Smiths’ Properties a RTM Enterprises, 160 Ga. App. 102, 103 (2) (286 SE2d 334) (1981) (in cases of doubt, leases will be construed in favor of tenant); Farm Supply Co. &c. v. Cook, 116 Ga. App. 814, 818-819 (2) (159 SE2d 128) (1967) (construction of lease).

       Although Cannon contends that the trial court erred in finding in favor of Wesley Plantation on its counterclaims, he limits his argument and citation of authority to Wesley Plantation’s retention of the security deposit. As Cannon provides no argument or citation of authority pertaining to Wesley Plantation’s counterclaim for the $543 in damages and $2,500 in attorney fees, he has abandoned these issues on appeal. See Dixon v. MARTA, 242 Ga. App. 262, 266 (4) (529 SE2d 398) (2000).

       See Mills v. Barton, 205 Ga. App. 413, 414 (3) (422 SE2d 269) (1992).

       See CRS Sirrine v. Dravo Corp., 219 Ga. App. 301, 302 (1) (464 SE2d 897) (1995).

       OCGA § 44-7-34 (a).


author: MlKELL, Judge.

text:
    A02A0389.
    ANTHONY v. LARIOS et al.
    (568 SE2d 135)
   MlKELL, Judge.

In this personal injury action arising out of an automobile accident, Callie Anthony appeals the trial court’s order granting the motion for judgment notwithstanding the verdict (“j.n.o.v.”) filed by her uninsured motorist carrier, Progressive Casualty Insurance Company (“Progressive”). Anthony argues that the default judgment entered against the defendant driver Israel Ulises Larios established, as a matter of law, that Larios was an uninsured motorist. Therefore, she contends, the trial court erred by granting Progressive’s motion. We disagree and affirm.

“The appellate standard of review in such a case is whether the evidence, with all reasonable deductions therefrom, demanded a verdict contrary to that returned by the fact-finder.” The evidence shows that Anthony served her complaint on Larios and on Progressive. After Larios failed to answer the complaint, Anthony filed a motion to enter a default judgment ágainst Larios, which the trial court granted. Progressive filed an answer in its own name admitting the negligence of Larios but raising the affirmative defense that Larios may not be uninsured. After a jury trial, the court entered a final judgment against Larios and Progressive in the amount of $8,000 plus the costs of the action. Progressive filed a motion for j.n.o.v., which the trial court granted. Anthony appeals the trial court’s order.

In two separate enumerations of error, Anthony argues that the trial court erred in finding that she failed to establish that Larios was an uninsured motorist and in granting Progressive’s motion. Since the finding that Anthony did not establish Larios’s uninsured status was the basis for the grant of Progressive’s motion, we will address her enumerated errors simultaneously.

Anthony argues that because Larios did not answer her complaint in which she alleged that he was an uninsured motorist, the trial court’s entry of a default judgment against him establishes his uninsured status as a matter of law. This argument is incorrect.

“[A]n admission predicated upon a default is operative against the particular party who makes default, and does not bind a co-defendant who appears and contests the litigation. Just as a judgment is not binding on persons who are neither parties nor privies to it, so a default judgment is not binding on co-defendants who are not in default.” Therefore, Larios’s admission by default that he is an uninsured motorist does not bind Progressive. Furthermore, we have previously held that when an uninsured motorist carrier answers and defends an action in its own name, the plaintiff has “the threshold burden to prove (1) the existence of a policy of liability insurance containing uninsured motorist protection, and (2) that [the defendant driver] was an uninsured motorist at the time of the collision.” Here, the existence of the uninsured motorist policy was not disputed. Though Anthony elected to exclude the trial transcript from the record, it seems clear from her argument that she did not present any evidence at trial that Larios was an uninsured motorist when the collision occurred. Since “courts cannot presume that the tortfeasor was an uninsured motorist,” the trial court did not err in granting Progressive’s motion for j.n.o.v.

Decided July 1, 2002.

Kenneth J. Rajotte, for appellant.

Callie Anthony, pro se.

Shur, McDuffie, Brockman & Williams, Reynolds E. Pitts, Jr., for appellees.

Judgment affirmed.

Andrews, P. J., and Phipps, J., concur.

        Bagley v. Robertson, 265 Ga. 144, 145 (1) (454 SE2d 478) (1995).

       (Citations omitted.) Peek v. Southern Guaranty Ins. Co., 240 Ga. 498, 499 (1) (241 SE2d 210) (1978).

       (Citation and punctuation omitted.) Williams v. Safeway Ins. Co., 223 Ga. App. 93, 94 (476 SE2d 850) (1996).

       We also note that we “presume the trial court’s order is supported by those parts of the record designated for exclusion from the record on appeal.” (Citation omitted.) Battaglia v. Duke, 230 Ga. App. 667, 670 (1) (497 SE2d 250) (1998).

        Hartford Accident &c. Co. v. Studebaker, 139 Ga. App. 386, 388 (1) (228 SE2d 322) (1976).


text:
    A02A0528.
    WILLIAMS v. THE STATE.
    (568 SE2d 132)
   Ruffin, Judge.

A jury found Tommy Lee Williams guilty of theft by receiving, driving under the influence, attempting to elude a police officer, and being an habitual violator. On appeal, Williams contends that the trial court erred in excluding the testimony of his expert witness and in admitting into evidence his custodial statement. Williams also asserts that he received ineffective assistance of trial counsel. For reasons that follow, we affirm.

The record shows that around midnight the morning of March 15, 2000, Officer Dereck Shelton was on patrol when he saw a van run a stop sign. Shelton activated his lights and siren and pursued the van a short distance, until the driver stopped the van and fled on foot down a wooded path. Although it was night, Shelton testified that the lighting was “good” and that he was able to get a “good look” at the driver, whom Shelton described as thin in stature, wearing whitewashed jeans and a tan, long sleeved sweater.

After securing the van and calling for backup, Shelton pursued the driver. While in pursuit, Shelton encountered Larry Jones, whose house was at the end of the path. Shelton asked if Jones had seen anyone come down the path, and Jones responded “Tommy Lee” and pointed to Williams, who was walking toward Shelton. According to Shelton, Williams was wearing whitewashed jeans and a tan, long sleeved sweater, and he was perspiring. Shelton testified that he had “no doubt” Williams was the driver of the van.

Shelton arrested Williams for obstruction and for running the stop sign and took him back to the van. While Shelton was asking Williams for his name and date of birth, Shelton noticed that Williams’ eyes were red, and he smelled alcohol on Williams’ breath. Believing Williams to be under the influence, Shelton read him the implied consent notice. Williams was subsequently given a breathalyzer test that showed his blood alcohol content to be 0.115, which is above the legal limit. It was later discovered that Williams had been declared an habitual violator and that his driver’s license had been revoked.

At some point, Shelton learned that Williams did not own the van, which was registered to Miguel Monzon. Monzon testified that he left the van outside of his apartment in Norcross the night of March 14 and that he had not given anyone permission to drive the van. Accordingly, Williams was charged with theft by receiving stolen property.

1. While Williams was being transported to the police station, he told Shelton “that he was in the van earlier, but wps dropped off.” Williams then informed Shelton that he would appreciate any leniency in treatment. Prior to trial, Williams moved to suppress this statement. Although Shelton had read Williams his Miranda rights, Williams nonetheless asserted that the statement was involuntary. During the Jackson-Denno hearing, Dr. John Watkins, a clinical psychologist, testified that, with an IQ of 58, Williams likely did not appreciate the import of his right to remain silent.

The State objected to the admission of Dr. Watkins’ testimony, asserting that Williams failed to provide a copy of the doctor’s report during discovery. The State also contended that it was prejudiced by Williams’ failure because it had not procured its own expert to refute Dr. Watkins’ testimony. According to Williams’ attorney, he provided Dr. Watkins’ name to the State on a witness list, and he intended to provide the report, but he could not recall whether he had in fact done so. The trial court nonetheless granted the State’s motion to exclude Dr. Watkins’ “evaluation and report” based upon Williams’ failure to produce the results of the report during discovery. On appeal, Williams contends that the trial court erred in excluding this evidence.

Pursuant to OCGA § 17-16-6, if a defendant fails to comply with the requirements of the reciprocal discovery procedures, a trial “court may order the defendant to permit the discovery or inspection, interview of the witness, grant a continuance, or, upon a showing of prejudice and bad faith, prohibit the defendant from introducing the evidence not disclosed. . . .” Under the clear language of this statute, a showing of bad faith is required to impose the harsh sanction of excluding the evidence. Here, the trial court made clear that it was excluding the evidence based solely upon the fact that Williams had not timely provided the report. And the trial court made no finding that, in so doing, Williams acted in bad faith. Given the evidence that Williams timely provided Dr. Watkins’ name and address to the State during discovery, it does not appear that he was attempting to hide the information from the State. Moreover, Williams was more than willing to agree to a continuance to remedy the late disclosure. “Absent a showing of prejudice to the State and bad faith by [Williams, Dr. Watkins] should have been allowed to testify.” It follows that the trial court erred in excluding this evidence.

Notwithstanding this error, we find no basis for reversal. “ ‘[E]rror alone is not automatically grounds for a new trial but is subject to scrutiny for harmless error.’ ” We find the admission of Williams’ statement harmless.

The sole purpose for the admission of Dr. Watkins’ testimony was to challenge the voluntariness of Williams’ statement. Thus, if the admission of the statement was harmless, so, too, was the exclusion of Dr. Watkins’ testimony. In his statement, Williams never admitted to committing any offense — he merely conceded that he had been in the van at some point and requested leniency. Arguably, this statement is not incriminating, in which case its admission could not harm Williams. Even assuming that the statement is properly characterized as incriminating, reversal still is not warranted. Officer Shelton unequivocally identified Williams as the man driving the van. In light of this evidence of Williams’ guilt, it is highly unlikely that Williams’ statement contributed to the verdict. Accordingly, the trial court’s decision to exclude Dr. Watkins’ testimony was not harmful.

In a related enumeration of error, Williams contends that the trial court erred in admitting his statement because it was involuntary. For the reasons discussed above, however, the statement’s admission was harmless and presents no basis for reversal.

2. In two enumerations of error, Williams contends he received ineffective assistance of trial counsel. According to Williams, his attorney rendered ineffective assistance by failing to timely provide Dr. Watkins’ report to the State and by failing to object to hearsay. To sustain such claim of ineffective assistance, Williams “must show that his counsel’s performance was deficient and that the deficiency prejudiced his defense. Prejudice arises where there is a reasonable probability the jury would have reached a different verdict, absent the error of counsel.” Assuming, for the sake of argument, that Williams’ attorney rendered ineffective assistance, Williams’ claim still fails as he cannot establish prejudice.

With respect to Williams’ assertion that his attorney was ineffective for failing to timely provide Dr. Watkins’ report, he is unable to show prejudice for the reasons stated in Division l. Williams also argues that he was prejudiced by his attorney’s failure to object to hearsay testimony. Specifically, Williams points to Shelton’s testimony that Jones identified Williams as “Tommy Lee.” Again, assuming that Williams’ attorney should have objected to this testimony, his failure to do so has not prejudiced Williams.

It is well settled that hearsay lacks probative value. Accordingly, the admission of hearsay even “without objection [,] does not give it any weight or force whatever in establishing a fact.” Thus, the mere fact that Williams’ attorney did not object to the hearsay does not preclude Williams from arguing that it improperly contributed to the verdict or unduly influenced jurors, neither of which Williams contends on appeal. Rather, Williams focuses on his lawyer’s culpability for failing to object to the hearsay. By neglecting to explain how, exactly, the attorney’s alleged failure harmed him, Williams has not shown prejudice.

Decided July 1, 2002.

Steven P. Berne, for appellant.

Daniel J. Porter, District Attorney, Wesley C. Ross, Assistant District Attorney, for appellee.

Moreover, we find the evidence more than ample to support the jury’s verdict, even without the hearsay testimony. Thus, in any event, Williams is unable to establish prejudice, which is necessary to warrant reversal based upon ineffective assistance of counsel.

Judgment affirmed.

Pope, P. J., and Barnes, J., concur.

       See OCGA § 40-6-391 (a) (5) (2000). Williams actually provided two breath, samples - the first registered 0.126 and the second 0.115.

       Williams also was charged with theft by taking, but the jury acquitted him of this charge.

       Williams opted into the reciprocal discovery provisions of OCGA § 17-16-1 et seq., and the State then moved to obtain all scientific reports.

       Following the Jackson-Denno hearing, the trial court concluded that Williams’ statement was voluntary. It is unclear from the trial court’s ruling whether it considered Dr. Watkins’ testimony in reaching this issue. For the purpose of our analysis, we assume that the court did not consider the excluded testimony

       See Tucker v. State, 222 Ga. App. 517, 518 (3) (474 SE2d 696) (1996); Hill v. State, 232 Ga. App. 561, 562 (502 SE2d 505) (1998) (physical precedent only).

       See Massey v. State, 272 Ga. 50, 52 (4) (525 SE2d 694) (2000).

       Compare Jones v. State, 251 Ga. App. 285, 286 (1) (554 SE2d 238) (2001) (trial court properly excluded evidence based upon showing of bad faith and prejudice to the State).

        Thomas v. State, 253 Ga. App. 58, 60 (1) (557 SE2d 483) (2001).

       See Massey, supra; Beck v. State, 250 Ga. App. 654, 659-660 (4) (551 SE2d 68) (2001).

       (Punctuation and footnote omitted.) Hooper v. State, 251 Ga. App. 533, 538 (4) (554 SE2d 750) (2001).

       See Curtis v. State, 190 Ga. App. 173,175 (2) (378 SE2d 516) (1989), overruled in part on other grounds, Brown v. State, 274 Ga. 31, 34 (1) (549 SE2d 107) (2001).

       (Citation and punctuation omitted.) Curtis, supra.

       Although Williams asserts that the “case would have come out differently if the trial counsel had objected to the hearsay,” he fails to establish how the result might have differed.

       See Ricarte v. State, 249 Ga. App. 50, 56 (4) (d) (547 SE2d 703) (2001).


text:
    A02A0661.
    PARROTT v. FAIRMONT DEVELOPMENT, INC.
    (568 SE2d 148)
   Ruffin, Judge.

David Parrott sued Fairmont Development, Inc., asserting that Fairmont destroyed a pipeline that supplied water to his property. Although the pipeline was on Fairmont’s property, Parrott asserted that he had acquired a prescriptive easement on that property. The trial court conducted a bench trial on Parrott’s claims for damages and injunctive relief. After the close of the evidence, Parrott moved the trial court to reopen the evidence. The trial court denied Parrott’s motion and entered judgment in favor of Fairmont, and this appeal ensued. For reasons that follow, we affirm.

1. In his first enumeration of error, Parrott contends that the trial court erred in denying his claim for damages. Parrott essentially argues that the evidence does not support the trial court’s conclusion that no prescriptive easement existed. In reviewing such argument, we note that the trial court is the factfinder in a bench trial, and we will affirm its holding on appeal if there is any evidence to support it.

Viewed in this light, the evidence shows that, in August 1977, Parrott purchased a shopping center from White Stores. At the time of the purchase, the shopping center was serviced by a waterline that ran across adjacent property. Parrott thought that White Stores must have acquired an easement for the waterline. Accordingly, if the waterline needed to be repaired, Parrott would pay plumbers to enter the adjacent property and repair the damage. One such repair left a six-inch PVC pipe protruding from the ground approximately twelve to fifteen feet inside the adjacent property.

In the early 1980s, Howard Cohen purchased the adjacent property to build a business, but the business never materialized. According to Cohen, he never knew that the waterline ran across his property. Although Parrott repaired the waterline several times when Cohen owned the property, Cohen never noticed any work being done on his property.

In May 1999, Cohen sold the property to Fairmont. At the time of the sale, the property was heavily wooded and covered with bushes and vines. Cohen described the property as a “jungle.” John Farmer, an engineer who worked on Fairmont’s development project, testified that he walked the property in July or August, but did not see the six-inch PVC pipe protruding from the ground. According to Farmer, he had no reason to suspect the waterline ran across Fairmont’s property. Specifically, Farmer testified that

prior to going out to the site, you look at the city exhibit and [there is] no record of having a water line going across the property, you would have to assume that . . . there are no lines running, because in the city, you’re not allowed to plant trees on top of water lines . . . [but must] remove the trees at least seven and a half feet on either side of the lines for maintenance.

Terry Coleman, the surveyor hired by Fairmont, discovered a pipe protruding from the back of Parrott’s building, and he called the city to see either if there was a waterline on Fairmont’s property or if the city had a water easement. According to Coleman, “both answers came back no.” Fairmont subsequently discovered the existence of the waterline, which it wanted Parrott to move. Parrott testified that he “was willing to relocate the line, but [he] wanted [Fairmont] to maintain the line after it was relocated.” Evidently, the parties reached an impasse, and Fairmont removed the waterline. Parrott then sued, claiming Fairmont breached his easement rights.

(a) “Prescriptive rights must be strictly construed, and the party asserting such rights must satisfy each of the established criteria.” Parrott claims that he acquired an easement by virtue of adverse possession in accordance with OCGA § 44-5-163. To establish such claim, Parrott must show that Fairmont purchased the property with notice of the easement. As this Court recently reiterated, a bona fide purchaser of property that lacks either knowledge or constructive notice of an easement takes title free from the easement. The purchaser

may assume that there is no easement except as shown of record or by open and visible indications on the land itselfi; however,] such purchaser will be charged with notice of the easement where an inspection of the premises would have readily revealed such physical facts as would, in the exercise of ordinary diligence, put him upon inquiry.

Whether or not a prescriptive easement has been established is a factual inquiry. When Fairmont purchased the property, it was overgrown to the point that the waterline was not patently visible, and an inspection of the property did not disclose the waterline’s existence. Given this evidence, the trial court was authorized to conclude that Parrott failed to establish the existence of an easement under OCGA § 44-5-163.

(b) Parrott also contends that he acquired a right-of-way easement under OCGA § 44-9-4, which governs parol licenses to use another’s land. However, this “statute is operative only where there is an express oral license.” Here, Parrott points to no evidence of any express oral license. It follows that the trial court did not err in finding this statute inapplicable.

(c) Finally, Parrott asserts that, “regardless of the existence of [an] easement, Fairmont’s self-help interference with the flow of water to [Parrott’s] building was a willful and intentional interference with [Parrott’s] property thereby entitling [him] to recover damages as arise naturally from the wrongful acts of [Fairmont].” However, Parrott provides no argument to support his conclusory statement. Under Court of Appeals Rule 27 (c) (2), an appellant must support enumerations of error with argument, and conclusory statements are not the type of meaningful argument contemplated by this rule. “Therefore, in the absence of proper argument and corresponding citation to authority, or to the record, we will not consider this enumeration.”

2. After the trial, Parrott filed a motion to reopen the evidence to present newly discovered evidence, which the trial court denied. On appeal, Parrott argues that the trial court erred in denying the motion. We disagree.

In his affidavit, Parrott avers that, after the trial began, he “reviewed all of his files and records to determine whether any additional information existed.” During this review of the records, he discovered a footnote on an old drawing of his building that referenced the firm responsible for the drawing. Parrott then contacted the firm, but was not provided additional information until after the close of evidence, at which time the firm provided plats that reflected an unrecorded easement.

“The decision to reopen the evidence in a case lies within the sound discretion of the trial court, and [it] will not be disturbed absent a showing of an abuse of that discretion.” Here, we find no such abuse. Evidently, Parrott had the drawing that contained the footnote before trial. He simply waited until trial to thoroughly examine the document and discover the footnote. Had Parrott examined the drawing earlier, he could have obtained the additional plats prior to trial. Where failure to procure the evidence before trial stems from a lack of diligence, a trial court does not abuse its discretion in refusing to reopen the evidence.

Judgment affirmed.

Pope, P. J., and Barnes, J., concur.

Decided July 1, 2002.

Thomas A. Nash, Jr., for appellant.

Royal & Vaughan, Jeffrey S. Vaughan, for appellee.

       Although Parrott characterizes his claim as “an action in equity,” he clearly seeks money damages, which constitute a legal rather than an equitable remedy. See Stewart v. Walton, 254 Ga. 81, 82 (1) (326 SE2d 738) (1985) (“action for money damages provides an adequate remedy at law”).

       See Page v. Braddy, 255 Ga. App. 124 (564 SE2d 538) (2002).

        Jackson v. Norfolk Southern R., 255 Ga. App. 695, 696 (1) (566 SE2d 415) (2002).

       See Hopkins v. Virginia Highland Assoc., 247 Ga. App. 243, 248 (1) (541 SE2d 386) (2000).

       See id.

       (Punctuation omitted.) Id.

       See Thompson v. McDougal, 248 Ga. App. 270, 273 (546 SE2d 44) (2001).

       See Hopkins, supra (issue of whether purchaser placed on inquiry notice could not be resolved as a matter of law).

       Parrott does not argue that he acquired a private right-of-way under OCGA § 44-9-1 or § 44-9-54. Assuming, for argument’s sake, that either statute applies, Fairmont’s lack of notice is fatal to any such claim. See id.

        Jordan v. Coalson, 235 Ga. 326, 327 (219 SE2d 439) (1975).

       See Jenkins v. State, 240 Ga. App. 102, 103 (1) (522 SE2d 678) (1999).

        Herrman v. Cohen, 252 Ga. App. 84, 85 (3) (555 SE2d 17) (2001).

       (Punctuation omitted.) Prevost v. Coffee County Hosp. Auth., 216 Ga. App. 154 (453 SE2d 760) (1995).

         See Smith v. Hobbs, 119 Ga. 96, 98 (45 SE 963) (1903).


text:
    A02A0810.
    MANSELL et al. v. STARR ENTERPRISES/TEXACO, INC. et al.
    (568 SE2d 145)
   Mikell, Judge.

Corrine Turner Mansell and Thomas Mansell appeal the trial court’s grant of summary judgment to Starr Enterprises/Texaco, Inc. and Motiva Enterprises, LLC (collectively referred to as “Starr Texaco”). The Mansells filed a negligence action against Starr Texaco after Mrs. Mansell fell while on the premises of the filling station. On appeal, the Mansells contend that the trial court erred in granting summary judgment to Starr Texaco, because there were genuine issues of fact as to whether a petroleum residue on Mrs. Mansell’s shoe caused the fall and whether the store manager had superior knowledge of the alleged hazard. 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). To obtain summary judgment, a defendant need not produce any evidence but must only point to an absence of evidence supporting at least one essential element of the plaintiff’s claim. Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991). Our review of a grant of summary judgment is de novo, and we view the evidence and all reasonable inferences drawn from it in the light most favorable to the nonmovant. Supchak v. Pruitt, 232 Ga. App. 680, 682 (1) (503 SE2d 581) (1998).

It is undisputed that the Mansells were customers of the Starr Texaco filling station on October 15,1997. When Mrs. Mansell exited their car near the gas pump, she noticed that the ground was wet with water and observed a woman spraying the pavement in front of the store with a hose. Sandy Mills, the store manager, deposed that she was spraying the pavement to remove cigarette butts, dirt, and debris from the area in front of the store. Mrs. Mansell proceeded across the wet pavement to the store entrance. She deposed that when she entered the store, she was aware that she had just walked through water.

Once inside, Mrs. Mansell turned right and walked toward the restroom. As she proceeded down an aisle, she slipped and fell, fracturing her left ankle. Mrs. Mansell deposed that she did not observe water or any other substance on the ground where she fell. Dorothy Boswell, a friend who was walking behind Mrs. Mansell down the aisle, did not recall seeing any water in the area where Mrs. Mansell fell. Mr. Mansell deposed that the bottoms of his wife’s shoes were wet after the fall, but he did not see any water on the floor where she fell. He described a clear liquid on the bottom of her shoes that he speculated was a “petroleum residue.”

The standard for recovery in a slip and fall action is well settled: “[A]n invitee must prove (1) that the defendant had actual or constructive knowledge of the hazard; and (2) that the plaintiff lacked knowledge of the hazard despite the exercise of ordinary care due to actions or conditions within the control of the owner/occupier.” Robinson v. Kroger Co., 268 Ga. 735, 749 (2) (b) (493 SE2d 403) (1997). See generally Adams & Adams, Ga. Law of Torts, § 4-6 (c) (3) (2000 ed.).

The Mansells have produced no evidence of what foreign substance, condition, or hazard caused Mrs. Mansell to slip and fall other than the water she testified she knowingly walked through. If the water created a hazard, it is undisputed that Mrs. Mansell was aware of it, as demonstrated by the following exchange during her deposition:

Q: So when you got out of the car and you stepped on the ground, you saw the ground was wet, right?
A: (Witness nods head affirmatively.)
Q: Is that right?
A: Yes.
Q: And you walked up to the front door of the store, the ground — you were aware that the ground that you were walking on was wet as you approached the store, right?
A: Yes.
Q: And you walked inside the store, you noticed that there was a little moisture there on the ground — on the floor just inside the door, right?
A: Uh-huh (affirmative). . . .
Q: Okay. You assumed that other people had walked through the water into the store, correct?
A: Uh-huh (affirmative). . . .
Q: Okay. And you knew as you walked into the store that you had walked through water on your way into the store?
A: Yeah, I knew this.

This case is analogous to “rainy day” slip and fall cases where “plaintiffs are charged with equal knowledge that water is apt to be found in any area frequented by people coming in from the rain outside.” (Citations and punctuation omitted.) Lawson v. Bruno’s Food Stores, 229 Ga. App. 683, 684 (1) (b) (494 SE2d 543) (1997). See also Palermo v. Winn-Dixie Atlanta, 221 Ga. App. 532, 533 (1) (472 SE2d 85) (1996) (proprietor not liable when woman slipped after entering a store when there was snow in the parking lot and customers had tracked snow and ice onto the floor).

The Mansells argue that in addition to the water, there was evidence of a “petroleum residue” on Mrs. Mansell’s shoes, creating an issue of fact as to whether Mills and Starr Texaco had superior knowledge of the alleged hazard. The only evidence offered to prove the presence of a petroleum residue is the deposition testimony of Mr. Mansell that he observed a clear liquid on the bottom of his wife’s shoes that he thought was “a composition of perhaps the petroleum residue that I think was picked up in walking through the water.” According to Mr. Mansell’s deposition, he concluded that the substance was slippery based on his wife’s fall and not due to any particular characteristic of the substance that he actually observed. “Guesses or speculation which raise [s] merely a conjecture or possibility [is] not sufficient to create even an inference of fact for consideration on summary judgment.” Brown v. Amerson, 220 Ga. App. 318, 320 (469 SE2d 723) (1996). See also La Cosecha, Inc. v. Hall, 246 Ga. App. 441, 444 (540 SE2d 659) (2000).

This case is similar to Brown v. Amerson, supra, in which the plaintiff slipped and fell in a shopping center parking lot. There, the plaintiff testified that it was “misty” at the time and that she slipped on a “combination of moisture and oil from the previous cars parked there.” (Punctuation omitted.) Id. at 319. We concluded that such testimony was “pure speculation supported only by her statement that 1 do have knowledge that when there is moisture in the air and on the pavement that oil from parking lots and asphalt go straight to the top.’ ” Id. at 320. Ultimately, we held that “[w]ithout any proof as to the specific nature of the hazard, there is no basis for claiming that one of the defendant owners or an employee was in a position to have easily seen and removed the alleged hazard.” Id. at 321. We reach a similar conclusion in the case sub judice.

The Mansells cite Van Dyke v. EMRO Marketing Co., 211 Ga. App. 744 (440 SE2d 469) (1993), for the general proposition that a gas station owner is presumed to have superior knowledge in the handling and cleaning of gas and petroleum-based products. However, their reliance is misplaced, as that case is distinguishable from the case sub judice. In Van Dyke, the plaintiff slipped and fell in a puddle of kerosene and water at a self-service gasoline pump. When the plaintiff reported his fall to the attendant on duty, she told him, “I thought somebody was going to fall out there, because I saw the man when he did it and he was filling up his kerosene jug and spilled it down where the water hose was, and those two mixtures is some kind of combination, it’s just like wet ice.” Id. at 745. Clearly, there was at least an issue of fact as to whether the defendant in Van Dyke had superior knowledge that the combination of water and kerosene was extremely slippery. Likewise, the Mansells’ reliance on Flood v. Camp Oil Co., 201 Ga. App. 451 (411 SE2d 348) (1991), is misplaced. In Flood, the plaintiff fell near a pump that the attendant knew “was always leaking on and off.” Id. In this case, there was no evidence that an employee of Starr Texaco had actual knowledge of a petroleum spill on the premises, as was the case in Van Dyke and Flood.

Decided July 1, 2002.

Taylor, Harp & Callier, John A. Harp, for appellants.

Finley & Buckley, Jerald R. Hanks, Kathleen M. Hurley, for appellees.

Because the Mansells cannot prove that Starr Texaco had actual or constructive knowledge of any hazard other than the water of which Mrs. Mansell had equal knowledge, the judgment of the trial court must be affirmed.

Judgment affirmed.

Andrews, P. J., and Phipps, J., concur.

       Starr Enterprises/Texaco, Inc. and Motiva Enterprises, LLC are the owners of Texaco Store No. 1024 in Union City.


text:
    A02A1013.
    MAHAN et al. v. WATKINS.
    (568 SE2d 130)
   Mikell, Judge.

Kenneth and Christy Mahan sued neighboring landowner Ellen Hay Watkins in connection with a retaining wall that the Mahans claimed was unsafe and encroached onto their property. The complaint was filed in magistrate court and asked for removal of the trespass, as well as damages and expenses. The magistrate court awarded the Mahans $592.50, plus $77 court costs. Watkins satisfied the judgment.

Watkins later commenced the present action against the Mahans, claiming interference with a contract for the sale of her property. In their answer, the Mahans asserted a number of counterclaims connected to the same retaining wall they complained of in the earlier action, including trespass, nuisance, and wrongful interference with possession of their land. Watkins moved for partial summary judgment on the ground that the Mahans’ counterclaim was barred by res judicata. The trial court agreed and entered judgment in favor of Watkins on the counterclaim. The Mahans appeal, and we affirm.

The issue presented is whether the Mahans’ counterclaim was barred by res judicata because of the previous action in magistrate court.

The doctrine of res judicata prevents re-litigation of matters that were or could have been litigated in a previously-adjudicated action. In order for res judicata to bar a subsequent action, it must be established that an identity of parties and subject matter exists between the two actions, and that a court of competent jurisdiction entered an adjudication in the earlier action.

There is little question that identity of parties and subject matter exists between the counterclaim and the action in magistrate court. There was an additional party, James Edmondson, in the magistrate court action, but Watkins and the Mahans were parties to both actions. “[T]he phrase ‘same parties’ does not mean that all of the parties on the respective sides of the litigation in the two cases shall have been identical!;] it does mean that those who invoke the defense and against whom it is invoked must be the same.”

Both the magistrate court action and the counterclaim concern the retaining wall. The Mahans contend that the counterclaim is fundamentally different because it is based only on equitable claims, while the earlier action included a claim for damages. We disagree because “[t]he adding of additional claims for relief which grow out of the same factual situation [does] not amount to the adding of a new or different cause of action.”

The most substantive question is whether the magistrate court’s lack of equity jurisdiction in the earlier action prevents the application of res judicata to the later counterclaim. Equitable jurisdiction is vested exclusively in the superior courts under Art. VI, Sec. IV, Par. I of the Georgia Constitution. Under OCGA § 15-10-2 (5), magistrate courts have jurisdiction over civil claims not exceeding $15,000, in which exclusive jurisdiction is not vested in the superior courts. Accordingly, the magistrate court had jurisdiction to hear the Mahans’ trespass and other claims concerning the retaining wall and to award a damage judgment at law. But the magistrate court could not, and did not, provide an equitable remedy by ordering the removal of the retaining wall. The Mahans argue that, because the magistrate court did not have jurisdiction to hear their claims in equity, the third element of res judicata —jurisdiction of the court in the previous action — is not met. The fault with this argument is that the magistrate court did have jurisdiction to hear the Mahans’ case and award a remedy. The scope of the remedy was limited to one at law, but the Mahans chose the forum and were bound by the limitations of the court that they chose. We find that the magistrate court was a court of competent jurisdiction for purposes of res judicata. To rule otherwise would present the possibility of a plaintiff suing twice on the same set of facts: once in the magistrate court for legal relief, and again in superior court for an equitable remedy. Such a result would be counter to the principle that “one must assert all claims for relief concerning the same subject matter in one lawsuit.”

Decided July 1, 2002.

Fincher & Hecht, Steven M. Fincher, Murray J. Weed, for appellants.

William A. Wehunt, for appellee.

There are fundamental dissimilarities between Myers v. North Ga. Title &c. Exchange, upon which the Mahans rely, and this case. Myers was sued in a dispossessory action in magistrate court by North Georgia Title, which had purchased Myers’s property at an IRS auction. Myers later sued North Georgia Title over title to the property, and we found that the action was not res judicata because Myers had been barred from disputing title in the previous dispossessory proceeding. Unlike Myers, the Mahans chose the forum for the initial litigation, and the magistrate court in this action had jurisdiction to hear the question presented, notwithstanding the limitation as to remedies.

Judgment affirmed.

Andrews, P. J, and Phipps, J, concur.

       (Citations and punctuation omitted.) Labovitz v. Hopkinson, 271 Ga. 330, 332 (2) (519 SE2d 672) (1999).

       (Citation omitted.) Firestone Tire &c. Co. v. Pinyan, 155 Ga. App. 343, 345 (2) (270 SE2d 883) (1980).

       (Citation and punctuation omitted.) McIver v. Jones, 209 Ga. App. 670, 673 (b) (434 SE2d 504) (1993).

       See Brinson v. First American Bank, 200 Ga. App. 552, 555 (2) (409 SE2d 50) (1991).

       (Emphasis omitted.) Lawson v. Watkins, 261 Ga. 147, 149 (2) (401 SE2d 719) (1991).

       241 Ga. App. 379 (527 SE2d 212) (1999).

       Id. at 380.


author: Pope, Presiding Judge.

text:
    A02A0091.
    BINKLEY v. FLATT.
    (568 SE2d 95)
   Pope, Presiding Judge.

Victoria Binkley appeals from the order of the trial court holding her in contempt for failing to comply with the visitation rights previously awarded to Carmen Flatt, who is the paternal grandmother of Binkley’s child.

Flatt’s son and Binkley were never married, but the two resided with Flatt during Binkley’s pregnancy. Binkley was living in Carmen Flatt’s home at the time of the child’s birth, but Flatt’s son was in prison. Binkley and the child continued to reside with Flatt for some period and relied upon Flatt for support. But when Binkley subsequently left Flatt’s home and remarried, she refused to allow Flatt any visitation rights with the child.

Flatt then filed a petition for visitation rights with her grandchild pursuant to the then existing version of OCGA § 19-7-3 (b). On October 11, 1991, the trial court granted Flatt certain visitation rights “[f]or so long as the father of the subject child remains imprisoned and until he obtains visitation rights with the subject child.” This ruling was based upon the “best interest of the child.” The order further provided that Flatt would not take the child to visit the father during his incarceration without Binkley’s written consent. There is nothing in the record before us to indicate that Binkley appealed this order.

Later, Binkley discovered that after the father was released from prison, Flatt was allowing him to see the child during her visitation. In response, Binkley refused to allow Flatt to visit the child unless the visitation was in Binkley’s house. Flatt then filed a “Citation for Contempt” against Binkley, asserting that she was in violation of the 1991 visitation order.

Binkley subsequently filed a motion in a separate proceeding to set aside the visitation order on the ground that it was unconstitutional because the statute upon which the order was based was ruled unconstitutional in 1995. See Brooks v. Parkerson, 265 Ga. 189 (454 SE2d 769) (1995). In addition, the parties’ briefs indicate that in a third action, the mother has moved to terminate the father’s parental rights and the stepfather has petitioned to adopt the child. It appears from the parties’ briefs that these matters were all pending before the same trial judge and that a motion for consolidation has been filed.

The trial court held a hearing on the contempt motion on July 10, 2001. Although Binkley’s attorney apparently attempted to argue the other pending matters, the trial court limited his consideration to the contempt motion, which was the only matter scheduled for hearing. The proceeding was not transcribed, but the subsequent written order reflects that the trial court found Binkley in wilful contempt of the 1991 visitation order. The trial judge sentenced her to serve a minimum of ten days in jail and to remain in jail until she comes into compliance with the visitation order.

1. “The question of whether a contempt has occurred is for the trial court, and its determination will be overturned only if there has been a gross abuse of discretion.” (Citation and punctuation omitted.) Torres v. Putnam County, 246 Ga. App. 544, 546 (541 SE2d 133) (2000). Binkley contends that the trial court’s contempt order should be reversed because the original 1991 visitation order was based upon an unconstitutional statute and thus should not be binding.

“Ordinarily, the proper method for attacking an erroneous court order is to appeal it or to take some measure to persuade the ordering court to reconsider and change it. A person may not simply ignore it; if he does so, he does so at his own peril and must assume the risk of being held in contempt.” (Citation and punctuation omitted.) Edwards v. Edwards, 254 Ga. App. 849, 854 (563 SE2d 888) (2002). It appears from the record and briefs that Binkley took no action to seek relief from the 1991 visitation order until after Flatt had filed her motion for contempt. Therefore, she violated the order at her own risk.

And although she asserted as a defense to contempt the unconstitutionality of the underlying statute, there has been no adjudication as to whether the order itself is unconstitutional. See generally Hunsinger v. Leachman, 244 Ga. 104 (259 SE2d 633) (1979); In re Haldi, 244 Ga. 545, 547 (1), n. 2 (261 SE2d 339) (1979) (noting that it is too late in a contempt proceeding to raise constitutional challenges). In 1991, when the original visitation order was entered, OCGA § 19-7-3 (c) provided for grandparent visitation “ ‘upon proof of special circumstances which make such visitation rights necessary to the best interests of the child.’ ” Brooks v. Parkerson, 265 Ga. at 190 (1) (quoting earlier version of the statute). The trial court in this case found, in reliance upon that statute, that grandparent visitation would be in the child’s best interest.

The Supreme Court of Georgia ruled in 1995, however, that the statute was unconstitutional, because it “falls short both in its apparent attempt to provide for a child’s welfare and in its failure to require a showing of harm before visitation can be ordered.” Brooks v. Parkerson, 265 Ga. at 194 (2) (c). In 1996, in response to the Brooks decision, the Georgia legislature enacted the current version of the grandparent visitation statute. The statute now provides that reasonable grandparent visitation rights may be granted if the court finds both that “the health or welfare of the child would be harmed unless such visitation is granted, and . . . the best interests of the child would be served by such visitation.” OCGA § 19-7-3 (c).

Although the visitation order in this case rests solely upon a determination of the best interest of the child, no court has addressed whether the evidence before the trial judge in 1991 would have been sufficient to authorize visitation under the current version of the statute. Thus, the order remained in place at the time of the contempt hearing.

We cannot say, therefore, that the trial court grossly abused its discretion in finding that Binkley was in contempt of that order, although in light of the Brooks decision, the better practice may have been to delay the contempt motion until the constitutionality issue had been addressed. Nevertheless, because this is a civil contempt proceeding, the trial court was required to condition any jail time upon compliance with the visitation order. Phillips v. Tittle, 261 Ga. 820, 821 (411 SE2d 871) (1992). The contempt order as written, however, directs a ten-day minimum jail term, without condition. Accordingly, we remand the case to the trial court to make Binkley’s sentence conditional upon her failure to comply with the visitation order.

2. Binkley also asserts that the trial court unfairly confined her in jail for two days before signing a supersedeas order. We agree. The record reflects that the trial judge ordered Binkley into custody on July 10, 2001. Her counsel filed an application for supersedeas on July 11, indicating that she was contemporaneously filing an application to the Supreme Court for appellate review. The order granting supersedeas was not signed until July 13. Under OCGA § 5-6-13, a trial court has no discretion to grant or refuse a supersedeas in cases of contempt where the defendant has submitted an application and written notice indicating her intention to seek an appeal. “The plaintiff having complied with the provisions of OCGA § 5-6-13, the trial court was without authority to delay its ruling until its punishment was complete. The statute calls a mandatory halt as a matter of right.” Calvert Enterprises v. Griffin-Spalding County Hosp. Auth., 197 Ga. App. 727, 728-729 (399 SE2d 287) (1990).

Decided June 21, 2002

Reconsideration denied July 2, 2002.

Gale & Henry, Barbara J. Gale, for appellant.

Ronald G. Shedd, for appellee.

Judgment affirmed and case remanded with direction.

Ruffin and Barnes, JJ., concur.

       Binkley asserts that the order was self-terminating because it provided for visitation “[f]or so long as the father of the subject child remains imprisoned and until he obtains visitation rights with the subject child.” But because the father has not obtained visitation rights with the child, but only sought such rights, the order had not terminated at the time of the contempt hearing.

       Subsequently, the U. S. Supreme Court found that the state of Washington’s grandparent visitation statute was unconstitutional. That statute also allowed visitation only upon a finding that it served the best interest of the child. Troxel v. Granville, 530 U. S. 57 (120 SC 2054, 147 LE2d 49) (2000).

       The matter was subsequently transferred to this Court, which granted Binkley’s application on August 16, 2001.