text:
    A01A1248.
    STOVER et al. v. TIPTON et al.
    (555 SE2d 151)
   Ruffin, Judge.

Wayne Kenneth Stover and L. C. Stover filed a petition in probate court against Roy G. Tipton and Martha L. Tipton, alleging that the Stovers had acquired a prescriptive easement over the Tiptons’ property which the Tiptons subsequently obstructed. The Stovers asked the court to order the Tiptons to remove the obstructions. Although the probate court ruled in the Stovers’ favor, in a de novo appeal, the superior court dismissed the Stovers’ action based on res judicata. The Stovers appeal the superior court’s dismissal, and for reasons that follow, we reverse.

The relevant facts are undisputed. Wayne Stover and L. C. Stover own parcels of real property neighboring land owned by the Tiptons. The Tiptons’ property is to the south of the Stovers’ parcels. The Stovers access their property over a small dirt road which intersects with a county road lying near the southern boundary of their parcels and the northern boundary of the Tiptons’ property.

In the early 1990s, a dispute arose between L. C. Stover and the Tiptons concerning the boundary line between their respective parcels, and in 1993, Stover sued the Tiptons for trespass. In June 1998, at the jury trial on the boundary dispute, L. C. Stover presented evidence that the boundary line between his property and the Tiptons’ property was on the south side of the county road, and the Tiptons presented evidence that the boundary line was to the north of the county road. The jury ultimately decided in favor of the Tiptons, and on June 15, 1998, the trial court entered judgment on the verdict.

A few months later, in October 1998, the Tiptons erected a fence and dug trenches on the northern boundary line of their property across the dirt road leading from the Stovers’ parcels to the county road. The Stovers subsequently filed the instant petition to remove obstruction from private way in the probate court. The Tiptons responded to the petition, asserting, among other defenses, that it is barred by res judicata. Specifically, the Tiptons argue that “what the [Stovers] seek to do in a second lawsuit is to impress a prescriptive easement upon a tract of property which had already been the subject of a boundary line dispute in an earlier action.” The superior court agreed with the Tiptons and dismissed the petition.

Under the doctrine of res judicata “[a] judgment of a court of competent jurisdiction shall be conclusive between the same parties and their privies as to all matters put in issue or which under the rules of law might have been put in issue in the cause wherein the judgment was rendered until the judgment is reversed or set aside.”

The Tiptons apparently contend that res judicata bars the instant action because the Stovers could have, but failed, to raise the issue of their alleged prescriptive easement in the prior action. We disagree.

It is well established that “a former judgment binds only as to the facts in issue and events existing at the time of such judgment, and does not prevent a re-examination even of the same questions between the same parties, if in the interval the material facts have so changed or such new events have occurred as to alter the legal rights or relations of the litigants.”

In this case, the Stovers allege that they established easement rights in the Tiptons’ roadway by prescription. To obtain such easement, the Stovers must have “been in constant and uninterrupted use [of the dirt road] for seven or more years and no legal steps have been taken to abolish it.” Although Georgia law permits a landlocked owner to petition a court for an easement over adjacent land for ingress and egress to a public road, our Code sections governing acquisition of a private way by prescription do not require a judicial decree for the easement to be effective. Thus, at the time of the first action, the Stovers were not required to obtain a decree to validate their purported easement. And, although the prior boundary line action determined the owner of that portion of the servient estate containing the private way, there is no indication the Tiptons took any steps in that action to abolish the Stovers’ use of the road.

Instead, the undisputed evidence shows that the Tiptons attempted to obstruct the road only after the boundary action had terminated. It was this conduct that gave rise to the Stovers’ cause of action to have the obstruction removed and required them to prove that they acquired a private way by prescription. In this regard, OCGA § 44-9-59 (a) provides in part that,

Decided October 9, 2001

Reconsideration denied November 15,2001

Doss & Doss, Oliver H. Doss, Jr., for appellants.

David E. Ralston, for appellees.

[i]n the event the owner or owners of land over which a private way may pass or any other person obstructs, closes up, or otherwise renders the private way unfit for use, the party or parties injured by the obstructions or other interference may petition the judge of the probate court in the county where the private way has been in use to remove the obstructions.

In order for the Stovers to prevail on their petition, they will need to show not only that the Tiptons rendered the dirt road unfit for use, but also establish that they have used the road, constantly and uninterrupted, for seven or more years, that the roadway is the same width as originally appropriated and not more than twenty feet wide, and that they have kept it open and in repair during their period of use. Again, we can discern no reason why, under the circumstances, the Stovers should have been required to raise this issue in the prior boundary dispute when the Tiptons had not taken any legal steps to abolish the alleged easement and erected physical obstructions only after the litigation terminated.

Accordingly, we conclude that the superior court erred in dismissing the de novo appeal based on res judicata. Importantly, however, we do not address or decide whether the Tiptons obstructed a private way or even whether the Stovers have a prescriptive private way. These issues must be decided by the superior court on remand.

Judgment reversed.

Johnson, P. J, and Ellington, J., concur.

       OCGA § 9-12-40.

       (Citations and punctuation omitted.) King v. Plummer, 196 Ga. App. 711-712 (1) (397 SE2d 5) (1990).

       OCGA § 44-9-54.

       See OCGA § 44-9-40 (authority of superior court to grant private way upon filing of petition of declaration of necessity); see also 1 Hinkel, Pindar’s Ga. Real Estate Law & Procedure (5th ed. 1998), § 8-20.

       See OCGA §§ 44-9-1 (methods of acquiring private ways); 44-9-54 (establishment of private way by prescription); see also Pindar, supra at §§ 8-9 through 8-12.

       See Ga. Pacific Corp. v. Johns, 204 Ga. App. 594 (420 SE2d 39) (1992).


source: Caselaw Access Project

author: Andrews, Presiding Judge.

license: Public Domain

text:
    A01A1364, A01A1365.
    STATE SOIL & WATER CONSERVATION COMMISSION et al. v. STRICKLETT et al.; and vice versa.
    (555 SE2d 800)
   Andrews, Presiding Judge.

These appeals arise from a complaint for equitable relief brought by the State Soil & Water Conservation Commission (the Commission) and the Broad River Soil & Water Conservation District (the District) alleging that Mark and Sharon Stricklett should be ordered to remove the residence they built on a location near a dam across the South Fork of the Broad River in Madison County. The Commission and the District claim the residence substantially interferes with a pre-existing easement granted to the District to operate and maintain the dam and impound floodwaters. The Strickletts counterclaimed seeking damages against the Commission and the District for intentional infliction of emotional distress, abusive litigation, and expenses of litigation. They also moved for recovery of attorney fees pursuant to OCGA § 9-15-14.

The trial court granted summary judgment in favor of the Strickletts on the claim for equitable relief on the basis that the residence does not substantially interfere with the easement and that the relief sought was barred by the principles of laches and equitable estoppel. The trial court also entered final judgment denying the Strickletts’ counterclaims and their motion for attorney fees. In Case No. A01A1364, the Commission and the District appeal from the summary judgment order in favor of the Strickletts, and in Case No. A01A1365, the Strickletts appeal from the judgment against their counterclaims and motion for attorney fees. Because we find that factual issues and public policy considerations preclude the grant of summary judgment in favor of the Strickletts on the claim for equitable relief, we reverse the grant of summary judgment in Case No. A01A1364. In Case No. A01A1365, we vacate the denial of attorney fees sought pursuant to OCGA § 9-15-14 and reverse the trial court’s judgment on the pleadings dismissing the Strickletts’ claims for intentional infliction of emotional distress and expenses of litigation. We affirm the trial court’s dismissal of the Strickletts’ claim for abusive litigation as premature.

Case No. A01A1364

1. The Commission and the District contend that the trial court erred by concluding as a matter of law that the Strickletts’ residence did not substantially interfere with the easement rights granted for the maintenance of the dam and floodwater impoundment.

The Commission and the District are state agencies organized according to the Soil and Water Conservation Districts Law (OCGA § 2-6-20 et seq.) for various goals including soil conservation, erosion prevention, and flood control. The District (under the supervision of the Commission) is authorized to pursue these goals by the construction and maintenance of dams and other flood control structures. Pursuant to this authority, the District obtained an express written easement recorded in the Madison County real property records in 1961 over approximately 49 acres of land traversed by the South Fork of the Broad River, which allowed the District to construct a dam across the South Fork and impound waters on the land. The recorded easement document provided in part as follows:

[An easement is granted to the District for the purpose of] the construction, operation, maintenance and inspection of ... [a] floodwater retarding structure [(a dam)] . . . located on the above described land; for the flowage of any waters in, over, upon, or through, such works of improvement; and for the permanent storage and temporary detention, either or both, of any waters that are impounded, stored or detained by such works of improvement. . . . The location on the ground of the easement herein granted ... is as follows: A floodwater retarding structure with a sediment pool up to 700.0 feet elevation, mean sea level, and floodwater flowage up to 725.0 feet elevation, mean sea level, as shown on Map No. 1 for South River Watershed in Madison County, Georgia on file in [the Madison County real property records], which description by reference is incorporated herein. This easement includes the right of ingress and egress at any time over and upon the first above described land of the Grantor. There is reserved to the Grantor, his heirs and assigns, the right and privilege to use the first above described land of the Grantor at any time, in any manner and for any purpose not inconsistent with the full use and enjoyment by the Grantee, its successors and assigns, of the rights and privileges herein granted.

Pursuant to these easement rights, the District constructed a 44-foot high earthen dam across the South Fork which created a normal impounded water pool with a surface area of approximately 12 acres and a storage volume of 80 acre-feet. The dam has the capacity to greatly increase the normal pool size by impounding floodwater levels in the pool up to a surface area of approximately 40 acres and a storage volume of 589 acre-feet. The District’s recorded floodwater easement was described as extending on the ground to an elevation of 725 feet above mean sea level. The easement also refers to and incorporates a map describing the floodwater easement and stating that the map is recorded in the Madison County real property records (without stating where). The map, which was recorded but not in the chain of title to the land burdened by the easement, was eventually located after the present suit was filed, but it provided no additional description for the location of the floodwater easement.

On June 21, 1995, the Strickletts purchased a 5.78-acre tract of land which included part of the land on which the dam was constructed and which was burdened by the recorded easement. On October 24, 1995, the Strickletts commenced construction of a residence on the land upstream of the dam, near the toe of the dam, above the normal level of the impounded water. The residence was completed on February 1, 1996. The Commission and the District produced evidence that the house, as constructed, altered portions of the earthen dam and the dam’s emergency spillway and posed serious erosion problems for the spillway. Although the house was built well above the normal impounded water level, evidence showed that the foundation and floor of the house were a few feet below the maximum floodwater elevation provided in the recorded easement and that the house was subject to being flooded by impounded waters at the maximum elevation of the floodwater easement during projected maximum rainfalls. There was also evidence that, because of the recent location of residences in the floodplain downstream of the dam, the dam would have to be reclassified as a Category I dam (improper operation or dam failure would result in probable loss of human life) under the Georgia Safe Dams Act (OCGA § 12-5-370 et seq.). Other evidence showed that, although the Strickletts’ residence did not substantially change how the dam presently operated, it did limit available options for improvements to the spillway which the dam may need for compliance with the Safe Dams Act.

In support of their motion for summary judgment, the Strickletts produced evidence that the construction of the residence did not alter the dam or spillway. They showed that the manner in which the dam and spillway were constructed made it impossible for floodwaters to reach the elevation of the residence. They also produced evidence showing that, even considering floodwater evidence produced by the Commission and the District that the residence could be flooded, the possibility that floodwaters would ever reach the maximum elevation of the floodwater easement and flood the residence was extremely remote. The Strickletts offered to formally assume liability for any damages caused to them by flooding. Accordingly, the Strickletts contended that the residence did not substantially interfere with the easement rights.

The easement given to the District in 1961 sets forth the intent of the parties that it grant nonexclusive rights over the land to construct, operate, inspect, and maintain a dam capable of impounding a pool of water up to a stated floodwater elevation. The easement expressly reserved in the grantor and successors in title, including the Strickletts, the right to use the land in any manner not inconsistent with the District’s full use and enjoyment of its easement rights. This accords with the principle that “unless the easement is exclusive, the grantor may construct buildings or other improvements on the land which do not ‘substantially interfere’ with the enjoyment of an easement previously granted.” Upson v. Stafford, 205 Ga. App. 615, 616 (422 SE2d 882) (1992); Yeomans v. Head, 243 Ga. 266 (253 SE2d 746) (1979) (owner of land burdened by a nonexclusive easement retains a concurrent right of use and possession, except so far as a limitation thereon is essential to the reasonable enjoyment of the easement).

We agree with the trial court’s determination, as a matter of law, that the minor encroachment by the residence a few feet below the maximum elevation of the floodwater easement does not substantially interfere with the District’s enjoyment of the easement. The only argument made by the Commission and the District on this issue is that they might potentially be liable for damages caused to the Strickletts by floodwaters reaching the maximum floodwater elevation of the easement, however remote this possibility might be. As noted above, the Strickletts have offered to expressly assume liability for all such damages. Moreover, given the extensive evidence produced in this litigation regarding the risk of flooding, it would be difficult to conceive how the Strickletts could claim ignorance and avoid being barred from seeking any floodwater damages by assumption of the risk. See Vaughn v. Pleasent, 266 Ga. 862, 864 (471 SE2d 866) (1996). In any event, no evidence was produced showing how the encroachment on the floodwater easement substantially interfered with the District’s rights.

We disagree, however, with the trial court’s determination that there was no other evidence of substantial interference with the District’s easement rights. Evidence that the residence, as constructed, altered the dam and spillway, created serious erosion problems, and limited available options that may be necessary to bring the dam into compliance with the Safe Dams Act was sufficient to create a factual question on the issue of whether the residence substantially interfered with the District’s easement right to operate and maintain the dam. A necessary incident to enjoyment of the easement to operate and maintain the dam is the right and duty to insure that the dam is safe and that it complies with the requirements of the Safe Dams Act. See Folk v. Meyerhardt Lodge &c., 218 Ga. 248, 249 (127 SE2d 298) (1962); OCGA § 12-5-370 et seq. If the trier of fact finds substantial interference with this easement right, a further factual issue would be presented as to whether the interference can be remedied only by removal of the residence, as sought by the Commission and the District, or by some other means.

2. The Commission and the District also contend that the trial court erred by granting summary judgment in favor of the Strickletts on the basis of laches and equitable estoppel.

In support of their contention that laches and equitable estoppel barred the relief sought, the Strickletts produced evidence that the Commission and the District were aware while the residence was being constructed that it was adjacent to the dam, yet they waited until after construction was completed before objecting that the residence interfered with easement rights and demanded its removal. The Strickletts admitted they were aware that the land they purchased was burdened by an easement for maintenance of the dam, although they claimed to be unaware of the recorded easement document. Nevertheless, the Strickletts stated by affidavit that, because they were unsure if the dam easement would restrict their right to construct a residence on the land, prior to starting construction, they asked agents of the District in an office in Danielsville if there were any building restrictions on the land. According to the Strickletts, the District’s agents stated that there were no restrictions and referred them to the Madison County Planning & Zoning Board. In response to these sworn contentions by the Strickletts, the Commission and the District responded that they have no information that the Strickletts spoke to anyone in their office and have not identified anyone spoken to. They further responded that, although they had no office in Danielsville, the National Resource & Conservation Service (NRCS) does operate an office in Danielsville. The Commission and the District conceded that the NRCS is a federal agency that provides substantial funding to the Commission and that they are required by federal regulations to cooperate with the NRCS on dam safety and maintenance, including inspections for encroachments on dam rights-of-way.

Evidence showed that the Strickletts commenced construction of the residence on October 24, 1995, and finished construction on February 1,1996. The Commission and the District admitted that NRCS employees, acting as their agents, visited the construction site for the purpose of inspecting the dam on or about November 28, 1995, at a time when the construction on the residence had progressed to the point that grading was completed, the foundation was in, and sub-flooring was in place. It is clear that the alleged interference with the easement for operating and maintaining the dam caused by alterations to the dam and spillway, if any, was visible at that time about one month into the construction process. In fact, the Commission and the District admit that this inspection first revealed the claimed interference which gave rise to this litigation. Nevertheless, it is undisputed that neither the Commission nor the District (nor anyone else) took any action to inform the Strickletts that the residence, as it was being constructed, interfered with easement rights until February 7, 1996, after the construction had been completed. In fact, the Strickletts contend that the NRCS employees told them at the time of the inspection on November 28 that everything looked fine. On February 7, 1996, the Strickletts received a phone call from the District telling them for the first time that the residence might be located within the District’s floodwater easement, and on March 8, 1996, the Strickletts received a letter from the District informing them for the first time that their residence encroached on the floodwater easement and interfered with the emergency spillway and the operation of the dam and that the residence must be removed.

On the other hand, there is evidence that the Strickletts, with knowledge of the District’s easement rights, commenced construction of the residence in a manner which altered the earthen dam and its spillway without first contacting the District to determine if the construction interfered with the easement. The dam was clearly visible on the land purchased by the Strickletts, and they were aware of an easement for maintenance of the dam. The recorded easement document in their chain of title provided notice to them of the express terms of the easement granted to the District to operate and maintain the dam, which provided that they could not use the land in a manner inconsistent with the District’s full use and enjoyment of the dam easement. The Strickletts contended that they contacted the District’s “agents” at an office in Danielsville to ask about building restrictions related to the easement before starting construction. However, the District denied having an office in Danielsville, pointing out that the NRCS maintained an office in Danielsville. Although the Strickletts do not say so directly, it may be inferred that the “agents” they spoke to were not District employees but employees of the NRCS in Danielsville, who told them there were no restrictions. Although the Commission and the District admitted that NRCS employees acted as their agents during the subsequent inspection of the dam, there is no evidence establishing that the NRCS employees acted as agents for the Commission or the District in making decisions about enforcement of the District’s easement rights.

Even assuming that the foregoing facts could establish the elements necessary for application of the principles of equitable estoppel or laches, we conclude that strong public policy considerations make these equitable doctrines unavailable to preclude the Commission or the District, as state agencies, from seeking to enforce easement rights necessary for the safe operation and maintenance of the dam. In general, equitable defenses are unavailable against the state where their application would thwart a strong public policy. See McConnell v. Floyd County, 164 Ga. 177, 178 (137 SE 919) (1927) (equitable relief will not be granted in contravention of public policy); Rehak v. Mathis, 239 Ga. 541 (238 SE2d 81) (1977) (equity will not aid enforcement of contract against public policy). “Equity, like other divisions of jurisprudence, takes notice of public policy, promotes it and conforms to it.” Green v. Coast Line R. Co., 97 Ga. 15, 32-33 (24 SE 814) (1895). In this case, there is a strong public interest in addressing claims by the Commission and the District that the Strickletts’ residence has substantially interfered with easement rights necessary for the safe operation and maintenance of the dam. This interest outweighs the claim by the Strickletts that the action should be barred by equitable estoppel or laches. See Applicability of Doctrine of Estoppel Against Government and Its Governmental Agencies, 1 ALR2d 338; Modern Status of Applicability of Doctrine of Estoppel Against Federal Government and Its Agencies, 27 ALR Fed. 702.

Accordingly, the trial court erred by granting summary judgment in favor of the Strickletts.

Case No. A01A1365

3. The Strickletts contend the trial court erred by denying their motion for attorney fees pursuant to OCGA § 9-15-14 (b). In Case No. A01A1364, we reversed the grant of summary judgment in favor of the Strickletts and held that a jury must consider evidence of whether there was substantial interference with the asserted easement rights. Accordingly, we vacate the trial court’s denial of the Strickletts’ motion pursuant to OCGA § 9-15-14 (b) and direct the trial court to reconsider this motion in light of all the evidence produced at trial. See Porter v. Felker, 261 Ga. 421, 422 (405 SE2d 31) (1991).

4. The Strickletts also contend the trial court erred by dismissing their counterclaims for intentional infliction of emotional distress, for recovery of expenses of litigation, and for abusive litigation.

(a) As to the claim for intentional infliction of emotional distress, it is undisputed that, after a hearing, the trial court dismissed this claim on the pleadings on the basis that it failed to state a claim. The Strickletts contend that the pleadings were sufficient to support the claimed relief.

The question here is whether the undisputed facts appearing from the pleadings show [the Commission and the District were] entitled to judgment as a matter of law. ... A complaint is not required to set forth a cause of action, but need only set forth a claim for relief. ... If, within the framework of the complaint, evidence may be introduced which will sustain a grant of relief to the plaintiff, the complaint is sufficient. Where the party moving for judgment on the pleadings does not introduce affidavits, depositions, or interrogatories in support of his motion, such motion is the equivalent of a motion to dismiss the complaint for failure to state a claim upon which relief can be granted. . . . The motion to dismiss should not be granted unless the averments in the complaint disclose with certainty that the plaintiff would not be entitled to relief under any state of facts which could be proved in support of his claim.

(Citations and punctuation omitted.) Sulejman v. Marinello, 217 Ga. App. 319, 320 (457 SE2d 251) (1995).

To recover for intentional infliction of emotional distress, the Strickletts were required to prove the following elements: (1) intentional or reckless conduct, (2) which is extreme and outrageous, (3) and caused the emotional distress, (4) which is severe. Trimble v. Circuit City Stores, 220 Ga. App. 498, 499 (469 SE2d 776) (1996). Concluding that “[t]he only allegations in the counterclaim which arguably allege the tort of intentional infliction of emotional distress relate to [the] filing and pursuit of the lawsuit [for equitable relief],” the trial court found that these allegations were not a sufficient basis to support the tort claim. We agree that, if the counterclaim for intentional infliction of emotional distress was based solely on the allegation that the underlying suit was frivolous, this would not be sufficient. Nottingham Co. v. Resource Materials Corp., 210 Ga. App. 128, 129 (435 SE2d 447) (1993); Nairon v. Land, 242 Ga. App. 259, 261 (529 SE2d 390) (2000). However, that is not all the Strickletts alleged in their counterclaim. In addition, the counterclaim alleged that the Commission and the District knew the residence was being constructed adjacent to the dam and that they inspected the dam and the construction site early in the construction process at a time when all of the alleged interference was readily apparent; that the inspectors told the Strickletts everything looked fine; that the Strickletts finished construction of the residence during the next two months following the inspection with no objection; and that the Commission and the District waited until after the construction was completely finished before claiming the residence interfered with the dam and demanding that it be removed. The Strickletts further alleged the Commission and . the District demanded removal of the residence despite the existence of lesser remedies and despite the fact that they had taken no action against similar residences which encroached on easements at other dams. Finally, the Strickletts contended that the Commission and the District singled them out for this belated demand because the Strickletts were supported by a political rival of a Commission member. We find that evidence in support of these allegations could be construed by a jury as reckless conduct of an extreme and outrageous nature which caused the Strickletts severe emotional distress. Accordingly, we reverse the dismissal of the Strickletts’ claim for intentional infliction of emotional distress.

(b) The trial court also dismissed the Strickletts’ counterclaim under OCGA § 13-6-11 for litigation expenses on the basis that it could not stand apart from the dismissed counterclaim for intentional infliction of emotional distress. White v. Lance H. Herndon, Inc., 203 Ga. App. 580, 581 (417 SE2d 383) (1992). Since dismissal of the intentional infliction of emotional distress claim has been reversed, the dismissal of the claim based on OCGA § 13-6-11 is also reversed.

Decided October 23, 2001

Reconsideration denied November 15, 2001.

Thurbert E. Baker, Attorney General, Denise Whiting-Pack, Assistant Attorney General, Fortson, Bentley & Griffin, J. Edward Allen, Jr., Augustus T. Curtis, for appellants.

Kerry S. Doolittle, for appellees.

Holland & Knight, Mary Ann B. Oakley, amicus curiae.

(c) Finally, the trial court dismissed the Strickletts’ counterclaim for abusive litigation pursuant to OCGA § 51-7-80. As the Strickletts essentially concede on appeal, this counterclaim was properly dismissed by the trial court as prematurely brought before the final termination of the proceedings.. Jacobs v. Littleton, 241 Ga. App. 403, 404 (525 SE2d 433) (1999).

Judgment reversed in Case No. A01A1364. Judgment affirmed in part, reversed in part and vacated in part with direction in Case No. A01A1365.

Eldridge and Miller, JJ., concur.


author: Barnes, Judge.

text:
    A01A1437.
    SMD, L.L.P. et al. v. CITY OF ROSWELL et al.
    (555 SE2d 813)
   Barnes, Judge.

SMD, L.L.P. and Liability Limited, Inc. (collectively “SMD”) appeal the grant of summary judgment on their claim for damages to the City of Roswell; M. L. Mabry, individually and as Mayor of Roswell; Jere Wood, as Mayor of Roswell; Edwin Tate, Terry Joyner, Steve Dorvee, Catherine Hibbard, Jerry Orlans, and Sally White, individually and as members of the Roswell City Council; Kristen Riley, as a member of the Roswell City Council; and Alan Goings, as Building Inspector for the City of Roswell (collectively “the City defendants”). SMD contends the trial court erred by limiting their claims to one for lost profits.

Specifically, SMD alleges the trial court erred by holding that claims for damages resulting from federally guaranteed rights can be extinguished by the Georgia law on lost profits; by refusing to allow their claims for presumed or nominal damages to be presented to a jury; by refusing to allow jurors to consider their claims for interest or a fair market rate of return; by refusing to allow the jury to hear their claims for compensation for two sign locations that were lost during the litigation; by refusing to allow the jury to hear their claims that the City defendants’ unconstitutional conduct resulted in a complete temporary taking of all possible economical use of their property; and by failing to recognize that “because there is no doubt as to the cause of the damages in this case, [SMD’s] claim falls into the exception authorizing recovery of an amount ‘authorized with reasonable certainty by the legal evidence submitted.’ ” We disagree and affirm.

1. The City defendants’ motion to dismiss the appeal is denied. This is not a zoning appeal that falls within the discretionary appeals procedure of OCGA § 5-6-35 (a) (1).

[The rule requiring a discretionary appeal application] applies only if the appeal is from an order reviewing the zoning decision of an administrative agency. Where a zoning case does not involve superior court review of an administrative decision, the trial court’s order does not come within the purview of OCGA § 5-6-35 (a) (1) and no application for appeal need be filed. Bright-line rules are favored, but we cannot consider the applicability of the application requirement in zoning cases apart from its statutory basis. Appellants did not file an appeal to the superior court seeking review of the Board’s administrative decision to rezone the adjoining property. Instead, they brought [an] action directly against the [City defendants], attacking the validity of the [sign ordinance] and seeking to prevent enforcement thereof. Because the order appealed from in this case does not involve the review of the decision of a local administrative agency, we find the order is directly appealable under OCGA § 5-6-34 (a) (6).

(Citations and punctuation omitted.) Sprayberry v. Dougherty County, 273 Ga. 503, 504 (1) (543 SE2d 29) (2001).

2. When reviewing the grant or denial of a motion for summary judgment, this court conducts a de novo review of the law and the evidence. Desai v. Silver Dollar City, 229 Ga. App. 160, 163 (1) (493 SE2d 540) (1997). Having done so, we adopt and incorporate into this opinion the trial court’s excellent order granting the City defendants’ motion for summary judgment on SMD’s claim for damages:

To prevail at summary judgment, under O.C.G.A. § 9-11-56, the moving party must demonstrate that there is no genuine issue of material fact and that the disputed facts, viewed in the light most favorable to the non-moving party, warrant judgment as a matter of law. Lau’s Corp. v. Haskins, 261 Ga. 491, 495 [(405 SE2d 474)] (1991). The movant’s burden may be discharged by pointing out through reference to affidavits that there is an absence of evidence to support the non-moving party’s case. Lau’s Corp., 261 Ga. at 491. If the movant discharges this burden, the non-moving party cannot rest on its pleadings, but must point to specific evidence giving rise to a triable issue. Id.
In July 1997, Plaintiffs made applications for sign permits to the City of Roswell for signs that were in excess of the then-existing minimum height and size limitations. The applications were summarily denied and Plaintiffs appealed the denial to the City Design Review Board and the City Historic Preservation Commission, respectively. In August 1997, the two groups heard and denied the applications for the sign permits. Plaintiffs appealed those decisions to the mayor and the city council. A hearing was scheduled for November, but was rescheduled to comply with public notice requirements. In October 1997, the Roswell city council, without public notice, amended the sign ordinance. On December 1, 1997, the mayor and city council denied the Plaintiffs’ appeals. On December 9, 1997, Plaintiffs filed suit. On November 18, 1999, Judge Westmoreland ordered the Defendants to “permit” the signs for which the Plaintiffs had applied and found that the City’s sign ordinance was a zoning ordinance subject to the Zoning Procedures Law. The City issued letters permitting Plaintiffs’ billboards on February 23, 2000. Plaintiffs assert damages based on the deprivation of constitutional rights pursuant to 42 U.S.C. § 1983.
The damages issue is all that remains for this Court’s determination on summary judgment since Judge Westmoreland has previously determined all other issues. Here, Plaintiffs allege that Plaintiffs lost one hundred percent (100%) of the value of its property as a result of the size and height limitations contained in the ordinance invalidated by the November 18, 1999 order. Defendants contend that Plaintiffs are not entitled to damages and have no proof of damages.
One of the basic purposes of a damages award under 42 U.S.C. § 1983 is to compensate persons wronged by the deprivation of constitutional rights. Carey v. Piphus, 435 U. S. 247, 254, 98 S. Ct. 1042, 1047, 55 L.Ed.2d 252 (1978). As well as being entitled to recover for the deprivation of the constitutional right itself, the Plaintiff may recover for injuries that are the natural consequence of the deprivation. See Whirl v. Kern, 407 F.2d 781, 797 (5th Cir. 196[8]). In the Plaintiffs’ complaint, Plaintiffs seek damages for the deprivation of right [s] under the First and Fifth Amendments to the Constitution. Whether Plaintiffs are entitled to compensation in a 42 U.S.C. § 1983 suit for the injuries is determined, under 42 U.S.C. § 1988, by reference to “the common law, as modified and changed by the constitution and statutes of the [forum] State ... so far as the same is not inconsistent with the Constitution and laws of the United States.” State law is “the principal reference point in determining survival of civil rights actions,” Robertson v. Wegmann, 436 U. S. 584, 589-90, 98 S. Ct. 1991, 1994-95, 56 L.Ed.2d 554 (1978), and is useful in determining the elements of damages. Carey, 435 U. S. at 257-58, 98 S. Ct. at 1048-49. Thus, as Judge Westmoreland has already determined that damages are appropriate, this Court will apply Georgia law.
Plaintiffs admit that Plaintiffs have never actually erected or operated a single billboard. To the contrary, Plaintiff SMD, L.L.P. has sold all of the permits it previously obtained and Plaintiff Liability Limited, Inc. has never even obtained a permit before. Here, Plaintiffs seek to present evidence at trial on the issues of lost profits, lost investment and any other consequential or special damages. As a general rule, expected profits of commercial business are too uncertain, speculative, and remote, to permit recovery for their loss. Molly Pitcher Canning Co. v. Central of Georgia R. Co., 149 Ga. App. 5[, 10 (4) (253 SE2d 392)] (1979); Atlanta Gas Light Co. v. Newman, 88 Ga. App. 252 [, 253 (2) (76 SE2d 536)] (1953). “[W]hen [an] owner of a business seeks to recover lost profits, that recovery can be had only if the business has a proven ‘track record’ of profitability. The jury is not permitted to speculate as to what the allegedly lost profits might have amounted to.” Stern’s Gallery of Gifts v. Corporate Property Investors, 176 Ga. App. [5]86[, 592 (3) (337 SE2d 29)] (1985). However, while anticipated profits of an unestablished future business are generally too speculative for recovery, where the business has been long established, has uniformly made profits, and there are definite, certain, and reasonable data for their ascertainment, they may be recovered at least for a limited reasonable future time, even though they cannot be computed with exact mathematical certainty. Levy, Bro. & Co. v. Allen, 53 Ga. App. 246[, 247 (185 SE 369)] (1936). Here, Plaintiffs are a three-year-old company that never actually erected or operated a single billboard and instead merely obtains permits to sell to others. Thus, Plaintiffs have no proven “track record” which would allow recovery of profits. Additionally, Plaintiffs admitted at oral argument that the lost profit estimates are based solely upon the testimony of Donald C. Danysh who owns and operates a billboard company that erects and maintains billboards.
Although Plaintiffs argue that Schneider v. City of Ramsey, 800 F[S]upp. 815 (D.C. Minn. 1992), would allow damages even without a record of business experience, a proper reading of the Schneider decision proves otherwise. In Schneider v. City of Ramsey, [supra], the Court stated the following: “ ‘Once the fact of loss has been shown, the difficulty of proving its amount will not preclude recovery so long as there is proof of a reasonable basis upon which to approximate the amount.’ Leoni v. Bemis Co., 255 N.W.2d 824, 826 (Minn. 1977); see also Unique Systems, Inc. v. Zotos Int'l Inc., 622 F.2d 373, 378-79 (8th Cir. 1980). The accounting records submitted by plaintiffs provide a reasonable basis upon which to approximate the amount of damages here. Plaintiffs are entitled to recover the gross profits they would have made during the period of closure, less operating expenses saved due to closure. An average of their gross profits less saved operating expenses during the five and one-half days the business was open prior to closure provides a reasonable basis for estimating the loss. Gross profits totalled $2737. Operating expenses saved in labor, printings, and repairs and maintenance totalled $953. The resulting figure, $1784, averaged over the five and one-half days, comes to $324. Since the business was closed for nineteen and one-half days, plaintiffs suffered a loss of $6,318. They are entitled to damages in this amount.”
There, the Plaintiffs had five and one-half days in which it had operated. Here, Plaintiffs have never erected or operated a single billboard. Therefore, even applying the case proffered by Plaintiffs, Plaintiffs do not have any direct business experience from which to derive the alleged potential lost profits. Consequently, Plaintiffs’ claims for lost profits, lost investment and other consequential or special damages are precluded since lost profits, lost investment and other consequential or special damages would be too uncertain and speculative in nature. Therefore, Defendants’ Motion for Summary Judgment is hereby GRANTED as to Plaintiffs’ claim for lost profits.
Plaintiffs also claim that damages are appropriate pursuant to 42 U.S.C. § 1983 for the alleged “taking” of Plaintiffs’ property as a result of the unconstitutional refusal to rezone Plaintiffs’ property. Here, the record reflects that off-premises signs were allowed at the time of the sign permit applications by the Plaintiffs. However, Plaintiffs sought permits for off-premises signs that did not conform with the then-existing sign ordinance. As the sign ordinance allowed off-premise signs and Plaintiffs could have erected and operated off-premises signs in accordance with the ordinance, Plaintiffs did not suffer a total deprivation as required. Cobb County v. McColister, 261 Ga. 876 [, 877 (413 SE2d 441)] (1992).

(References to the record omitted.) Order of the Superior Court of Fulton County, September 12, 2000.

3. SMD’s brief also argues that numerous other theories of recovery of damages other than a claim for lost profits were available to them. While these theories might be available generally, in this case the pretrial order entered pursuant to OCGA § 9-11-16 excluded these other grounds of recovery. SMD’s claims for damages in the pretrial order entered by the trial court were:

(11) The types of damages and the applicable measure of those damages are stated as follows: According to Plaintiffs: The damages suffered by Plaintiffs can be calculated in accordance with the following formulae: In regard to Plaintiff SMD, L.L.P., damages equal to the sum of (1) and (2) below: (1) (Estimated monthly revenue for signs — Estimated monthly costs of operating signs) x 31.5 (duration of deprivation — 31 months, 2 weeks); plus (2) Value of two sign locations that were lost because Plaintiffs’ leases expired during Defendants’ unconstitutional delay in granting sign permits increased by the statutory rate of interest from that date. In regard to Plaintiff Liability Limited, Inc.: damages equal to the amount of profit that it would have garnered from the construction of the signs for which it applied for permit applications in July of 1997 increased by the statutory rate of interest from that date.

As the pretrial order limited the damages sought to those involving only lost profits, the trial court did not err by not considering these other grounds for recovery of damages. When a pretrial order is entered, it controls the subsequent course of the case unless it is modified at the trial to avoid a manifest injustice. OCGA § 9-11-16. Any claim or issue omitted from the pretrial order is waived. Long v. Marion, 257 Ga. 431, 433 (2) (360 SE2d 255) (1987); John H. Smith, Inc. v. Teveit, 175 Ga. App. 565, 566 (333 SE2d 856) (1985).

Accordingly, the trial court did not err by granting summary judgment to the City defendants on SMD’s claim for damages.

Judgment affirmed.

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

Decided October 24, 2001

Reconsideration denied November 15,2001.

Dow, Lohnes & Albertson, Sean R. Smith, E. Adam Webb, for appellants.

Carothers & Mitchell, Richard A: Carothers, William M. Coolidge III, for appellees.


text:
    A01A0909.
    SHELTON v. THE STATE.
    (556 SE2d 540)
   Andrews, Presiding Judge.

Richard Shelton was convicted by a Fulton County jury of one count of theft by taking and two counts of armed robbery. On appeal, he claims the trial court erred in (1) failing to suppress evidence, (2) refusing to sever the charges for trial, and (3) impermissibly placing his character in issue. For reasons which follow, we affirm.

On appeal from a criminal conviction, the defendant no longer enjoys the presumption of innocence, and we view the evidence in the light most favorable to the jury’s verdict. Grant v. State, 195 Ga. App. 463, 464 (1) (393 SE2d 737) (1990). So viewed, the evidence shows that on June 17, 1996, Arthur Montgomery intended to leave his BMW at an automobile detailing shop. Montgomery saw a man outside the shop who said that he was a shop employee. The man drove Montgomery back to his office, but never took the car back to the detailing shop. Montgomery identified Shelton as the man who took his BMW. On August 13, 1996, Robert Barnes got into his Mercedes automobile in the underground parking area below his condominium residence. A man forced him to relinquish the car keys at gunpoint and then drove away. The victim identified Shelton as the gunman. On August 24, 1996, Brent Haygood had just entered his Mercedes, which was in a parking lot in midtown Atlanta, when he heard a tap on the driver’s side window. Haygood exited the car, and a man placed a gun against his forehead and told Haygood that he was taking the car. When Haygood refused, the man fired the gun but failed to injure Haygood. The man then took the car. Haygood identified Shelton as the perpetrator.

1. Shelton claims that the trial court erred in denying his motion to suppress the evidence developed when the police made an allegedly unlawful search of his landlady’s premises. Shelton rented a bedroom at the home of Celestina Dismuke. At the time of the search, he had been living there three weeks. He did not have a key and depended on Dismuke or her daughter to gain access to the house. On August 29, 1996, police received a report of a stolen Mercedes automobile at the Dismuke residence. Officer Gee and two other officers went to investigate. Gee knocked on the front door, but no one answered. Standing outside a chain-link fence around the house, the officers saw that in the unenclosed carport was a vehicle partially covered with a tarp. A Mercedes symbol was visible on the hubcaps. After talking with neighbors who confirmed the automobile was a Mercedes, Gee went into the garage and recorded the car’s vehicle identification number. From the number, the officers learned that the vehicle had been reported stolen in a carjacking. The Mercedes belonged to Barnes.

Dismuke, who had been in the shower when the police first knocked on her door, told the officers the Mercedes was not hers and she had no idea how it got in her carport. While the officers were standing on the porch, Shelton came out and told the officers that he had bought the Mercedes from a friend. Shelton gave the police two different names. The police told Shelton he was under arrest and would have to leave with them. Shelton replied that he needed to go put on a shirt. Dismuke gave the police permission to enter her house, and Officer Davidson followed Shelton back to the room where he was staying. When the officer entered the room he saw a wallet, car keys, and a gun lying on the dresser. The officer seized the gun. A shell casing recovered from the site of the Haygood carjacking was ejected from this gun.

Shelton argues that the evidence stemming from the arrest at the Dismuke residence led the police to suspect him in the car thefts from Barnes and Haygood and his subsequent photographic identification by those victims. He maintains that the evidence which led the police to charge him for the crimes at issue here was derived from the “poisonous tree” of an illegal search. We disagree.

“The burden is on the defendant to show that he has standing to contest the alleged violation, i.e., that he has a legitimate expectation of privacy in the premises searched.” In the Interest of M. H., 247 Ga. App. 84, 85 (543 SE2d 390) (2000). Shelton argues that he had a privacy interest in the curtilage of the house where he was staying. The constitutional protections regarding searches and seizures have been held to extend to the curtilage of houses and apartments. See State v. Gallup, 236 Ga. App. 321, 323 (1) (b) (512 SE2d 66) (1999). However, “[i]t is the recognized relationship of the person with the property searched that gives rise to the protective device of suppression.” (Punctuation omitted.) State v. Jackson, 201 Ga. App. 810, 813 (1) (412 SE2d 593) (1991). Accordingly, it is Shelton’s expectation of privacy in the carport, and not his landlady’s, which is the relevant question. Evidence shows that Shelton was a three-week tenant with no key to the residence or independent access to his room and that he had not secured permission to use the carport and had not used the carport previously with the landlady’s knowledge or consent. Given that Shelton (1) had been living in the residence a very short time, (2) had no independent control of the premises, and (3) did not establish that he could legitimately expect to have use of or had previously used the area which was searched, we find that there was a substantial basis for the trial court’s ruling that Shelton did not have a legitimate privacy interest in the carport, and thus no standing to object to the police’s search of the stolen Mercedes parked within it. See Johnson v. State, 246 Ga. App. 197, 198 (1) (540 SE2d 212) (2000) (“When reviewing a trial court’s decision on a motion to suppress, this Court’s responsibility is to ensure that there was a substantial basis for the decision.”).

Shelton’s reliance on Wilson v. State, 254 Ga. 473 (330 SE2d 364) (1985), is misplaced. There the evidence sought to be suppressed was a pair of gloves found in the defendant’s bedroom in his grandmother’s house, where he was residing. Our Supreme Court found that the defendant “presumably had the right to exclude people other than his grandmother from the premises.” Id. at 477 (3). The search in question here was not in Shelton’s bedroom, and Shelton did not show he had the right to exclude people from the premises. Minnesota v. Olson, 495 U. S. 91 (110 SC 1684, 109 LE2d 85) (1990), and Bunn v. State, 153 Ga. App. 270 (265 SE2d 88) (1980), are also factually distinguishable. The United States Supreme Court found the defendant’s lack of a key to the residence in which he was seized to be unimportant in its analysis. The defendant in Olson, however, was a guest and was seized inside the host’s home. Here, Shelton’s lack of a key is indicative of a lesser degree of control of the premises in general and is relevant to his right to exclude others from access to the carport. In Bunn, we found the constitutionally protected zone of privacy extended to the immediate vicinity of a tenant’s patio in the rear of his apartment, álthough not to the common areas in the apartment complex. Bunn, supra at 274 (2). But it does not automatically follow that because a renter has a privacy interest in the curtilage of his apartment that Shelton had an expectation of privacy in the curtilage of the Dismuke residence. The evidence indicates that Shelton had a more limited expectation of privacy in the premises than would have been the case had he been a tenant with control of the house.

Shelton also argues that, even if he did not have standing to challenge the search of the carport, the seizure of the gun was unlawful and all evidence derived from that seizure should be suppressed. However, Shelton was under arrest when the gun was seized. He was aware that an officer was accompanying him back to his room so he could get a shirt. The seizure of the gun was incident to the arrest. See OCGA § 17-5-1; Hunter v. State, 190 Ga. App. 24, 25 (2) (378 SE2d 352) (1989). Shelton further claims that the statements he made that he owned the car, and evidence that he gave two different names, should also be suppressed. However, Shelton had not been arrested when he made these statements, and he has no basis to exclude them. The trial court did not err in denying Shelton’s motion to suppress.

2. Shelton next contends that his right to due process was violated by the trial court’s failure to sever the charges against him. When two or more offenses are joined solely because they are of the same or similar character, the defendant may have the offenses severed for trial. Davis v. State, 159 Ga. App. 356 (1) (283 SE2d 286) (1981). However, “a trial court may join offenses for trial if the offenses are based on the same conduct, on a series of connected acts, or on a series of acts constituting parts of a single scheme or plan.” (Punctuation and footnote omitted.) Moore v. State, 246 Ga. App. 163, 166 (4) (539 SE2d 851) (2000). “The determination whether to grant or deny a motion to sever the trial of separate criminal offenses is within the discretion of the trial court.” (Citation omitted.) Roman v. State, 245 Ga. App. 225, 226 (2) (537 SE2d 684) (2000).

Counts 2 and 3 involved Shelton, within a two-week period, approaching the victim as he entered his Mercedes and stealing the car at gunpoint. These two counts clearly are based on the same conduct or series of connected acts. Count 1, which involved the theft by deception of a BMW automobile approximately two months earlier, is more problematical. The similarities among the three counts include theft of a luxury car and no attempt by Shelton to disguise himself, but the first count is dissimilar from the other two in that it did not involve force, and two months separate the first instance from the second. Nevertheless, in all three incidents Shelton chose to obtain the car keys directly from the driver, as opposed to “hot wiring” the car or taking it by another method when the driver was not around. After reviewing the record, we find the three charges sufficiently encompass a series of connected acts to justify their being joined for trial. The trial court did not abuse its discretion in denying Shelton’s motion to sever.

3. Lastly, Shelton claims the trial court erred by admitting evidence of his arrest for traffic offenses on November 3,1996. Although Shelton was taken into custody at the Dismuke premises on August 29, 1996, he was released before he was served with the arrest warrants for the theft and. armed robbery charges. The November 3,1996 arrest led to the service of those warrants. The arresting officer testified that he stopped Shelton for speeding and running a stop sign. Shelton fled in the car after the initial stop, crashed into a parked car, and then fled on foot. When he was finally apprehended, Shelton gave the police a false name. The car Shelton was driving had been reported stolen.

Shelton argues that the circumstances of the November 3, 1996 arrest were unrelated to the crimes for which he was being tried and evidence of the arrest improperly put his character into issue. We agree. Evidence of an arrest is generally subject to the same standards of relevancy and materiality applicable to other evidence. See Benford v. State, 272 Ga. 348, 350 (3) (528 SE2d 795) (2000). Circumstances surrounding an arrest are often admissible as part of the res gestae, because “the arrest was contemporaneous or closely related in time to the offense and bore a logical relation to the offense.” (Punctuation omitted.) DeCastro v. State, 221 Ga. App. 83, 85 (1) (470 SE2d 748) (1996) (physical precedent only). If the circumstances around an arrest are not part of the res gestae and are not relevant and material to the questions in issue, there is no basis for its admission into evidence. Id. Here, the circumstances of Shelton’s November arrest were prejudicial, but did not have any logical relation to the issues at trial. Evidence that Shelton was driving a stolen car on November 3, 1996, without more, is not probative of his guilt with regard to the theft by taking and armed robbery charges. The State relies on Davis v. State, 244 Ga. App. 345, 347 (3) (535 SE2d 528) (2000), and McClung v. State, 206 Ga. 421, 423 (57 SE2d 559) (1950), but the arrest in Davis was apparently for the charges at trial rather than, as here, an arrest for an unrelated incident which then led to the serving of the arrest warrants for the crimes at issue. In McClung, a subsequent arrest for auto theft was relevant to show an attempt to flee arrest from murder charges. See McClung, supra at 423 (1). It was error for the trial court to deny Shelton’s motion in limine to exclude evidence of the November 3, 1996 arrest. However, we do not find that a reversal is warranted. “[E]rror alone is not automatically grounds for a new trial but is subject to scrutiny for harmless error.” (Punctuation and footnote omitted.) Humphrey v. State, 249 Ga. App. 805, 807 (1) (549 SE2d 144) (2001) (applying harmless error analysis to erroneous admission of similar transaction evidence). Given the eyewitness testimony of the victims, who had closely observed an undisguised Shelton, as well as the compelling physical evidence, we find that there is no reasonable probability that the results of the trial would have differed if the evidence of Shelton’s November 3, 1996 arrest had been excluded.

Decided November 15, 2001.

Zell & Zell, Rodney S. Zell, for appellant.

Paul L. Howard, Jr., District Attorney, George W. K. Snyder, Jr., Assistant District Attorney, for appellee.

Judgment affirmed.

Eldridge and Miller, JJ, concur.


text:
    A01A1203.
    MULTI-STATE CONTRACTING CORPORATION v. MIDWEST INDEMNITY CORPORATION et al.
    (556 SE2d 524)
   Andrews, Presiding Judge.

Multi-State Contracting Corporation sued Midwest Indemnity Corporation and National American Insurance Company, among other defendants, to recover monies which were held in escrow under the terms of a disbursement agreement between Multi-State and Contractors Risk Management Corporation (CRMC). These funds were improperly diverted by CRMC for investment and were lost. Multi-State claims that CRMC acted as an agent for Midwest Indemnity and National American, which, as principals, are responsible for the loss of the escrowed funds. The trial court granted Midwest Indemnity’s and National American’s motions for summary judgment, and Multi-State appeals. We affirm because Multi-State cannot establish a genuine issue of material fact. See Moore v. Food Assoc., 210 Ga. App. 780, 781 (437 SE2d 832) (1993).

In ruling on a motion for summary judgment, the opposing party should be given the benefit of all reasonable doubt, and the court should construe the evidence and all inferences and conclusions arising therefrom most favorably toward the party opposing the motion. Moore v. Goldome Credit Corp., 187 Ga. App. 594, 596 (370 SE2d 843) (1988). Midwest Indemnity and National American, as defendants, may prevail “by showing the court that the documents, affidavits, depositions and other evidence in the record reveal that there is no evidence sufficient to create a jury issue on at least one essential element of plaintiff’s case.” Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991). Our review of the record is de novo. Walker v. Virtual Packaging, 229 Ga. App. 124 (493 SE2d 551) (1997).

The record shows that Multi-State entered into a construction contract with the United States Air Force. The Air Force required that Multi-State procure a surety bond guaranteeing its performance under the contract and payment of subcontractors and materialmen. This surety bond was issued by National American. Midwest Indemnity acted as National American’s underwriter for purposes of evaluating Multi-State and the construction project. As part of the underwriting guidelines for the issuance of the surety bond, Midwest Indemnity and National American required Multi-State to use a disbursing and escrow agent. To satisfy these guidelines, Multi-State entered into a disbursement agreement with CRMC. Under the terms of the disbursement agreement, CRMC received funds payable to Multi-State under its contract with the Air Force and disbursed funds to pay for project-related labor, services, and materials as directed by Multi-State. For the protection of National American, the disbursement agreement also established a surety reserve fund in which five percent of the proceeds from the construction contract were deposited. It is a common business practice for a surety to require an insured contractor to use a disbursing agent on a construction project. After completing the construction contract, MultiState asked CRMC to release $71,100 held in the surety reserve fund. CRMC agreed to release the funds, but the money had been lost in failed investments.

The basis for Multi-State’s claim for the loss of the funds held in the surety reserve is that CRMC was acting as the agent for Midwest Indemnity and National American. Multi-State argues that the trial court erred in granting Midwest Indemnity’s and National American’s motions for summary judgment because issues of material fact remain with respect to their agency relationship with CRMC. We disagree. A principal is responsible for the actions of its agent acting on its behalf within the scope of the agency. See OCGA § 10-6-60. Within the scope of its duties under the disbursement agreement, CRMC was designated as a trustee, with legal title of the account funds lying with Multi-State. The surety, National American, is an express third-party beneficiary of the agreement, and the funds in the surety reserve are designated to be paid to the surety in the event of any loss or claim incurred under the surety bond. There is nothing, however, within the terms of the disbursement contract establishing a principal/agent relationship between CRMC, acting as trustee, and the third-party beneficiary, National American. “Agency is the relationship which results from the manifestation of consent by one person to another that the other shall act on his behalf and subject to his control, and consent by the other so to act.” (Citation and punctuation omitted; emphasis supplied.) First Nat. Bank &c. v. Alvin Worley & Sons, Inc., 221 Ga. App. 820-821 (2) (472 SE2d 568) (1996). To the extent that CRMC might be looked upon as an “agent,” it could not be said to have acted exclusively on behalf of either the contractor or the surety, but was more akin to an escrow agent in a real estate transaction. See Fickling & Walker Co. v. Giddens Constr. Co., 258 Ga. 891, 895-896 (1) (a) (376 SE2d 655) (1989).

Multi-State also claims that Midwest Indemnity and National American required it to employ CRMC as the disbursement agent. The record shows that, while the use of a disbursement agent was a condition to the issuance of the surety bond, neither Midwest Indemnity nor National American explicitly demanded CRMC be used as the disbursing agent. Furthermore, the disbursement agreement identifies CRMC as chosen by Multi-State. The president of CRMC does affirm, however, that the parties to the issuance of the surety bond understood that CRMC would be used as the disbursing agent in this transaction because the insurance agent that brought the transaction to Midwest Indemnity and National American was Financial Services Intermediaries, Inc., which shared common ownership with CRMC. Even if Midwest Indemnity and National American implicitly required Multi-State to use CRMC as the disbursing agent, this is insufficient to establish a principal/agent relationship when it appears, based on the terms of the disbursement agreement and the testimony of the president of CRMC, that (1) CRMC was an independent corporation that did not act under the control or direction of Midwest Indemnity or National American in performing its duties under the disbursement agreement, and (2) CRMC acted without the direction or knowledge of Midwest Indemnity or National American in diverting the funds in the surety reserve. There are no grounds, on this record, for holding either Midwest Indemnity or National American responsible for the failure of CRMC to perform its duties under the disbursement agreement, and the trial court properly granted summary judgment.

Decided November 15, 2001.

Seacrest, Karesh, Tate & Bicknese, Karsten Bicknese, Amy E. Loggins, for appellant.

Thompson & Slagle, Jefferson B. Slagle, Marchetti & Lomas, Richard A. Marchetti, Goldner, Sommers, Scrudder & Bass, Stephen L. Goldner, for appellees.

Judgment affirmed.

Eldridge and Miller, JJ, concur.


text:
    A01A1276.
    A01A1277.
    BENNETT v. THE STATE. VOTTA v. THE STATE.
    (557 SE2d 29)
   Andrews, Presiding Judge.

William Bennett and Joseph Louis Votta appeal from the denial of their motions for new trial following their joint trial and convictions for hunting deer over a baited field and hunting without wearing orange. Because the issues in each appeal are the sufficiency of the evidence and whether, under OCGA § 27-3-9 (c), Department of Natural Resources rangers were required to notify Bennett and Votta that the fields were baited and give them an opportunity to post the fields prior to prosecuting them, the appeals are consolidated.

1. Both Bennett and Votta challenge the sufficiency of the evidence. Viewed with all inferences in favor of the jury’s verdict, Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979), the evidence was that Bennett and Votta, both Florida residents and longtime friends, purchased over 100 acres in Randolph County. On this property, they each placed a trailer in which to stay. Additionally, they built eleven deer stands on the property and installed five wildlife feeders which spread corn around the area. Mineral blocks were also placed around the property.

On September 20, 1997, Corporal Commander of the Department of Natural Resources Law Enforcement Section received a phone call from the owner of property adjoining Bennett and Votta’s property advising that he believed the area had been baited. Upon checking the property, rangers found the stands, feed distributors, and mineral blocks. On October 22, three days before the opening of deer hunting season, several rangers returned and observed the same conditions.

On October 25, opening day of deer season, rangers arrived at the property around 8:00 a.m. Both Bennett and Votta were observed in separate deer stands, wearing camouflage clothing and holding loaded high-powered rifles with scopes. Neither man was wearing the fluorescent orange required of hunters. Bennett and Votta contended they were hunting coyotes. Although the rangers had spotted numerous deer tracks on the property, they had not found any coyote tracks.

The evidence was legally sufficient, and denial of their motions for new trial was not error. Jackson v. Virginia, supra; Redding v. State, 217 Ga. App. 529 (458 SE2d 168) (1995).

2. The remaining enumerations address the trial court’s exclusion of evidence regarding, and denial of motions for directed verdict premised upon, their contention that the State’s compliance with OCGA § 27-3-9 (c) was a condition precedent to their prosecution for hunting over a baited field.

OCGA § 27-3-9 provides that:

(a) It shall be unlawful for any person to place, expose, deposit, distribute, or scatter any corn, wheat, or other grains, salts, apples, or other feeds or bait so as to constitute a lure or attraction or enticement for any game bird or game animal on or over any area where hunters are or will be hunting.
(b) Except as otherwise provided by law or regulation, it shall be unlawful for any person to hunt any game bird or game animal upon, over, around, or near any place where any such feed or bait has been placed, exposed, deposited, distributed, or scattered so as to constitute a lure, attraction, or enticement to such birds or animals. It shall also be unlawful to hunt any game animal or game bird upon, over, around, or near any such place for a period of ten days following the complete removal of all such feed or bait.
(c) When a conservation ranger is aware or becomes aware that a clearly identifiable area of land or field is baited for doves in such a manner that hunting thereon would be a violation of subsection (b) of this Code section, it shall be the duty of the conservation ranger to require the owner or other person having lawful possession or control of the baited area of land or field to remove such bait. The conservation ranger shall require such owner or other person to erect on the area of land or field signs having printed thereon the words: “No Hunting, Baited Field.” Such signs shall remain for ten days after bait is removed. The printing on such signs shall be clearly visible to a person with normal eyesight from a distance of at least 50 yards. A sufficient number of such signs shall be erected to provide reasonable notice to hunters that the field or area is baited. If the conservation ranger cannot locate the owner or other person having lawful possession or control of the baited area of land or field, it shall be the duty of such conservation ranger to erect such signs. The owner or other person having lawful possession or control of a baited area or field who fails to comply with an order of a conservation ranger requiring the removal of bait or the erection of signs, or both, as required by this subsection shall be guilty of a misdemeanor. When a conservation ranger is aware that a clearly identifiable area of land or field is baited in such a manner that hunting thereon would be a violation of subsection (b) of this Code section prior to any such violation, no charge may be brought against any person under subsection (b) of this Code section unless the provisions of this subsection have been followed. Nothing in this subsection shall be construed to preclude the owner or other person having lawful possession or control of a baited area or field from being charged with and convicted of a violation of subsection (a) of this Code section. Nothing in this subsection shall be construed to preclude a person’s being charged with and convicted of a violation of subsection (b) of this Code section when such violation is on a baited area of land or field which was not previously identified by a conservation ranger as provided in this subsection prior to such violation.

(Emphasis supplied.)

Appellants argue that the underlined sentence in subsection (c) requires that, before any prosecution for hunting any game animal or game bird over a baited field can occur, the rangers must either require the owner to post, or post themselves, the field as provided in subsection (c). This argument, however, overlooks and makes superfluous the italicized portion of subsection (c).

In interpreting statutes, we look “diligently for the intention of the General Assembly, keeping in view at all times the old law, the evil, and the remedy[,]” and the construction that will uphold a statute in whole and every part is preferred. OCGA § 1-3-1 (a); Exum v. City of Valdosta, 246 Ga. 169, 170 (1) (269 SE2d 441) (1980).

Decided November 15, 2001.

James E. Friese, for appellants.

Charles M. Ferguson, District Attorney, for appellee.

Subsection (c) was added to the statute by amendment in 1989. The caption stated that the purpose of the Act was “[t]o amend Code Section 27-3-9 of the Official Code of Georgia Annotated, relating to the unlawful enticement of doves, so as to provide that conservation rangers shall be required to require owners . . . having lawful possession or control of baited areas ... to remove such bait or erect certain signs, or both. . . .” (Emphasis supplied.) Ga. L. 1989, p. 469.

“ Tn construing legislation, nothing is more pertinent, towards ascertaining the true intention of the legislative mind in the passage of the enactment, than the legislature’s own interpretation of the scope and purpose of the act, as contained in the caption.’ (Punctuation omitted.) Copher v. Mackey, 220 Ga. App. 43, 45 (4) (467 SE2d 362) (1996).” Latham v. State, 225 Ga. App. 147, 149 (483 SE2d 322) (1997).

Obviously, had the legislature intended for this provision to apply to any game animal or bird, it would have so specified.

There was no error.

Judgment affirmed.

Miller, J., concurs. Eldridge, J., concurs in the judgment only.


text:
    A01A1414.
    NELSON v. THE STATE.
    (556 SE2d 527)
   Andrews, Presiding Judge.

David L. Nelson appeals from the trial court’s denial of his motion to suppress and in limine and motion for new trial after entry of judgment of conviction following the jury’s verdict of guilty of driving with an unlawful level of alcohol (OCGA § 40-6-391 (a) (5)) and possession of marijuana (OCGA § 16-13-2 (b)).

Nelson contends that the trial court erred in denying his motion to suppress and in limine regarding the results of his Intoximeter tests and the marijuana found on him after his arrest, arguing that the stop was not authorized under Terry v. Ohio, 392 U. S. 1 (88 SC 1868, 20 LE2d 889) (1968).

On appeal from a motion to suppress, the evidence is viewed in a light most favorable to upholding the trial court’s judgment. The credibility of witnesses and the weight accorded their testimony “rest with the trier of fact, who is under no obligation to believe a witness, even in the absence of contradictory testimony.” (Citation and punctuation omitted.) Anderson v. State, 267 Ga. 116, 118 (2) (475 SE2d 629) (1996).

Taylor v. State, 239 Ga. App. 858 (522 SE2d 266) (1999).

Viewed in this light, the record reveals the following. On January 19, 2000, Cobb County Officer Warren was on patrol in a marked vehicle when he encountered the vehicle driven by Nelson. As Officer Warren followed Nelson’s vehicle, he noticed the passenger and Nelson engaging in a verbal argument almost “to the point where some punches might be thrown.” He based this conclusion on his observation of quick hand movements and head movements of the two. The passenger’s hand was only a few inches from Nelson’s face, and Officer Warren thought blows were about to be struck. The vehicle was also drifting in its lane. Because he was concerned for the safety of the occupants and the general public, Officer Warren initiated a stop of the vehicle. Although, based on his 12 years experience, Officer Warren was also concerned that the drifting might indicate driving under the influence, he acknowledged that this was not the premise for his stop. He approached the vehicle and noticed a strong odor of alcohol as he approached Nelson on the driver’s side. He asked Nelson for his driver’s license and proof of insurance. Nelson fumbled some, but produced his driver’s license. Although he had taken out his insurance card, he put it in his lap until the officer again requested it and asked Nelson to get out of the vehicle. As Nelson got out, he was unsteady on his feet and his speech was mumbled.

Officer Warren then conducted field sobriety tests, including the alphabet, walk and turn, one-leg stand, and horizontal gaze nystagmus tests. Nelson forgot various letters and was unable to complete the alphabet; was initially unable to keep his balance on the walk and turn; and could not keep his balance on the one-leg stand. He had “extreme nystagmus,” and tested positive on the alco-sensor. Nelson was placed under arrest.

A ten-year-old boy was found in the backseat, the son of the front seat passenger. Upon inventorying the vehicle, a smoking pipe containing suspected marijuana and a bag of suspected marijuana were found on the driver’s side. Also, upon searching Nelson incident to his arrest, Officer Warren found a suspected marijuana “joint” in Nelson’s shirt pocket.

Nelson registered 0.100 and 0.103 on the Intoximeter 5000, and the suspected substances tested as marijuana.

1. We consider first the issue of denial of Nelson’s motion to suppress and in limine, seeking to exclude all items obtained in the inventory search and search of Nelson, as well as the Intoximeter 5000 results and the test results on the marijuana.

Nelson’s argument is that, since Officer Warren did not have a reasonable suspicion that Nelson was committing or about to commit a traffic violation, there could be no basis for a Terry stop. A traffic violation or reasonable suspicion concerning one, however, is not the touchstone of a Terry inquiry.

Although an officer may conduct a brief investigative stop of a vehicle (see Delaware v. Prouse, 440 U. S. 648 (99 SC 1391, 59 LE2d 660) (1979)), such a stop must be justified by “specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.” Terry v. Ohio, [supra at 21]. See also United States v. Brignoni-Ponce, 422 U. S. 873 (95 SC 2574, 45 LE2d 607) (1975). The U. S. Supreme Court recognized the difficulty in defining “the elusive concept of what cause is sufficient to .authorize police to stop a person,” and concluded that the essence of the elusive concept was to take the totality of the circumstances into account and determine whether the detaining officer has “a particularized and objective basis for suspecting the particular person stopped of criminal activity” United States v. Cortez, 449 U. S. 411, 417-418 (101 SC 690, 66 LE2d 621) (1981). “This demand for specificity in the information upon which police action is predicated is the central teaching of (the Supreme Court’s) Fourth Amendment jurisprudence.” Terry v. Ohio, supra at 21, n. 18.

(Emphasis supplied.) Vansant v. State, 264 Ga. 319, 320 (2) (443 SE2d 474) (1994). See also, e.g., Durden v. State, 199 Ga. App. 397, 398 (405 SE2d 50) (1991).

Therefore, denial of the motions on this basis was not error.

Further, the trial court concluded, and we concur, that the stop was appropriate because of the officer’s concern for the car’s occupants and the general public based upon his suspicion that a fight was about to break out in a moving automobile. “The State has inherent police power which ‘ “extends to the protection of the lives, health and property of the citizen. . . .” ’ [Veit v. State, 182 Ga. App. 753, 756 (2) (357 SE2d 113) (1987).]” State v. Forehand, 246 Ga. App. 590, 592 (1) (542 SE2d 110) (2000). The stop was proper to investigate whether the occupants were a threat to one another or the public at large. State v. Hammang, 249 Ga. App. 811 (549 SE2d 440) (2001); State v. Armstrong, 223 Ga. App. 350, 351 (477 SE2d 635) (1996).

Decided November 15, 2001.

Wallace C. Clayton, for appellant.

Barry E. Morgan, Solicitor-General, Jessica K. Moss, Sidney O. Smith III, Assistant Solicitors-General, for appellee.

2. The second and third enumerations of error, that there was insufficient evidence of the crimes charged and the trial court erred in denying Nelson’s motion for new trial, both address the legal sufficiency of the evidence and are addressed together. White v. State, 233 Ga. App. 24, 25 (503 SE2d 26) (1998).

As reflected in the factual statement, supra, the evidence was legally sufficient. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Judgment affirmed.

Eldridge and Miller, JJ., concur.

       Nelson was convicted of DUI (OCGA § 40-6-391 (a) (1)) and DUI endangering a child (OCGA § 40-6-391 (1)), but these counts were merged for sentencing with the driving with unlawful level count.