author: Smith, Presiding Judge.

text:
    A01A2170.
    ROCK v. HEAD et al.
    (562 SE2d 768)
   Smith, Presiding Judge.

Several plaintiffs sought judicial guidance concerning the effect of a vote by the DeKalb County Board of Commissioners with respect to defendant John Rock’s application to change the zoning designation of his property from residential to office use. This appeal arises out of the trial court’s order granting a declaratory judgment in favor of those plaintiffs. The facts of this case are carefully set forth in Head v. DeKalb County, 246 Ga. App. 756 (542 SE2d 176) (2000), and need not be repeated here. In that case, we concluded that the trial court erroneously dismissed the lawsuit on the ground that it was an untimely appeal of a zoning decision. Id. at 759 (1). We also found that the alternative basis for the dismissal, the trial court’s conclusion that the plaintiffs had no standing to bring the action, was based on an incorrect legal assumption. Id. at 760. We did not decide the standing issue, however, because we concluded that the issue was not fully litigated in the trial court. Id. at 760-761 (2). The trial court subsequently entered another order concluding that the plaintiffs had standing to bring the lawsuit. The court also decided the issue of the effect of the board’s decision, finding that the vote, although four in favor and three against rezoning, did not constitute approval of the application. Rock appeals from these rulings. We agree with the trial court that the plaintiffs had standing to bring the declaratory judgment action. In addition, under the language of the applicable Georgia law concerning approval of zoning applications in DeKalb County, we conclude that the trial court correctly found that the board’s vote did not constitute an approval of Rock’s application for rezoning. We therefore affirm.

1. We first address Rock’s contention that the plaintiffs did not have standing to bring the declaratory judgment action. In Head, supra, we stated that the issue of whether plaintiffs had standing to obtain a declaratory judgment as to the zoning status of Rock’s property depended on plaintiffs’ status under the Declaratory Judgment Act. Id. at 760. Specifically, we found that whether they were entitled to have a court declare that status depended on whether they were “in need of judicial guidance to enable them to avoid incurring additional liability or jeopardizing their rights.” (Punctuation and footnote omitted.) Id. at 760-761. This issue depended partly on two questions: (1) whether plaintiffs have the ability to prevent Rock from developing the property in violation of its zoning designation; and (2) whether this ability would be jeopardized by the trial court’s failure to declare the zoning designation. Id. at 761.

We find the trial court’s reasoning apt on this issue, and we adopt it here:

[T]he individual plaintiffs do possess standing to seek a declaratory judgment as to the zoning status of the Rock property. It is well settled that property owners may seek to prevent their neighbors from developing or using their property in violation of its existing zoning without showing special damages. See Palmer v. Tomlinson, 217 Ga. 399, 400 [(122 SE2d 578)] (1961). . . . Thus, if it is declared that Dr. Rock’s property was not lawfully rezoned to OI and is therefore still in the RM-75 zoning districts, the plaintiffs, as neighboring property owners, would be entitled to seek injunctive relief to prevent him from using the property in violation of the zoning restrictions.

2. Rock argues that the majority vote in favor of his rezoning application constituted approval of his request. As correctly stated by the trial court, the current zoning status of Rock’s property depends on the outcome of the board’s vote, after application of Section 9 (a) (10) of the DeKalb County Organizational Act. That section states that “no planning or zoning ordinance shall become law unless approved by the member of the Commission representing the district in which the subject property is located, or by one of the members of the Commission elected from the county at large.” Ga. L. 1981, pp. 4304, 4311 (the 1981 Act). When this provision was enacted, the DeKalb County Commission consisted of five district members and two members elected from the county at large. Id. at 4305, § 2 (a). In 1992, however, the 1981 Act was amended to eliminate the election of the at-large commissioners and to replace them with two geographically distinct “commissioner districts” or “superdistricts.” Ga. L. 1992, pp. 6567, 6572-6575 (the 1992 Act). The 1992 Act did not amend the language of section 9 (a) (10) of the 1981 Act concerning at-large commissioners, although the 1992 Act does recite that “[a]ll laws and parts of laws in conflict with this Act are repealed.” Ga. L. 1992, pp. 6566, 6582, § 6.

As mentioned above, during the public hearing on Rock’s application, four board members voted in favor of rezoning, and three voted against. Head, supra at 757. Rock’s property is located in District 2 and Superdistrict 6. The commissioners from these districts voted against the rezoning, although the Superdistrict 7 commissioner voted in favor. Id. Applying section 9 (a) (10) of the 1981 Act to these facts, the trial court stated that

the rezoning did not receive the affirmative vote of any commissioner in whose district the property is located. It is further undisputed that DeKalb County no longer has any commissioners who are “elected from the county at large,” having replaced the at-large commissioners with two super-district commissioners. Therefore, the requirements of § 9 (a) (10) were not satisfied by the affirmative vote of. . . the superdistrict commissioner for District Seven, not an “at-large” commissioner.

Rock correctly points out that, when construing a statute, a court must “look diligently for the intention of the General Assembly, keeping in view at all times the old law, the evil, and the remedy.” OCGA § 1-3-1 (a). And as stated in City of Jesup v. Bennett, 226 Ga. 606, 608 (2) (176 SE2d 81) (1970), we must give a statute the construction that “will effectuate the legislative intent and purpose.” Rock also accurately states that we must construe a statute “to make all its parts harmonize and to give a sensible and intelligent effect to each part.” Houston v. Lowes of Savannah, 235 Ga. 201, 203 (219 SE2d 115) (1975). Rock argues that the trial court’s construction of the 1981 Act as it applies to the board’s vote violates these principles, maintaining that the “interpretation finds no basis in any intention of the General Assembly” and “makes no effort to harmonize and reconcile the basic statute with the subsequent amendment.” He further argues that the trial court’s ruling creates a new requirement not found in either the 1981 Act or the 1992 Act — “the alternative of consent of the Super District Commissioner in whose district the property is located.” Finally, Rock maintains that the ruling “fundamentally alters” the anti-majoritarian exception to majority rule found in section 9 (a) (10) to permit a two-person dissent to overrule a four- or five-person majority.

To cure the supposed ills created by the trial court’s ruling, Rock urges us to conclude that the 1992 Act “simply substitutes Super District Commissioners for At Large Commissioners.” Under this construction, the approval of either superdistrict commissioner would satisfy the 1981 Act. According to Rock, such an interpretation is consistent with the General Assembly’s intent, avoids a repeal by implication, and avoids rendering any part of the 1981 Act meaningless.

We do not agree. “The construction of statutes must square with common sense and sound reasoning.” (Citation and punctuation omitted.) Tuten v. City of Brunswick, 262 Ga. 399, 404 (7) (a) (i) (418 SE2d 367) (1992). The trial court’s interpretation is logically sound. The 1992 Act eliminated at-large commissioners and divided the county into two geographically distinct superdistricts, and one commissioner must be chosen from each. Although the 1992 Act does not expressly amend section 9 (a) (10) of the 1981 Act concerning the vote of at-large commissioners, the 1992 Act does state that all “parts of laws” in conflict with the 1992 Act are repealed. Ga. L. 1992, p. 6582. Thus, construing the “at-large” language to have been repealed by the 1992 Act, no zoning changes can be approved without the vote of a commissioner in whose district the property is located. Neither the district commissioner nor the superdistrict commissioner from the district in which Rock’s property is located voted in favor of the rezoning, and the application therefore was not approved. We agree with appellees that the trial court’s interpretation of section 9 (a) (10) “upholds the validity of the statute and requires no inferences or leaps of faith.”

In addition, we conclude that the underlying basis for the remainder of Rock’s arguments, his contention that the trial court’s interpretation violates the legislative intent underlying the 1981 Act, is incorrect. He argues that the legislative intent as revealed by the scheme of the 1981 Act is that the seven-member board govern itself by majority rule with the exception of the limited anti-majoritarian vote in the context of zoning amendments, as set out in section 9 (a) (10). He argues that under the prior law, a four-three vote could be defeated only in the narrow situation that occurred when the three-person minority was composed of the district commissioner and both at-large commissioners and that a simple substitution, “in form and substance,” of superdistrict commissioners for at-large commissioners would continue to effectuate this intent. According to Rock, under this interpretation, majority rule would continue to govern, and the anti-majoritarian exception would remain limited to the requirement of three dissenting votes, consisting of the district commissioner and both superdistrict commissioners.

Rock correctly argues that zoning statutes must be strictly construed in favor of the property owner. See Bo Fancy Productions v. Rabun County Bd. of Commrs., 267 Ga. 341, 342 (1) (a) (478 SE2d 373) (1996). But zoning ordinances also “must be given a reasonable construction. [Cit.]” Id. at 343 (1) (b). Unlike Harrison v. Arogeti, 228 Ga. 55, 57-58 (228 SE2d 55) (1971), cited by Rock, in which the applicable legislation clearly required a majority vote concerning certain zoning changes, the legislature in this case obviously intended to create circumstances in which a majority of votes in favor of a zoning change could be defeated. But we cannot conclude that this exception to “majority rule” is so narrowly limited, as proposed by Rock. An assumption that the legislature intended either superdistrict commissioner to be treated as the equivalent of an at-large commissioner is contradicted by the distinction created by the 1992 amendment, which deliberately eliminated at-large districts. Furthermore, under Rock’s interpretation, a zoning change could be effected by a majority vote of commissioners, none of whom were chosen from the district in which the property lies. This result surely was not intended by the legislature. In fact, the previous law required at least one favorable vote from a commissioner who could have been said to represent the property owner, either a district commissioner from the property owner’s district or from the county at large. The trial court’s interpretation of section 9 (a) (10) is consistent with this result, as it requires a favorable vote either by a commissioner from the property owner’s district or a commissioner from the owner’s superdistrict. Because we find the trial court’s construction of the board’s vote in light of the 1992 Act and the 1981 Act to be more reasonable and consistent with the legislature’s intent than that proposed by Rock, we find no basis for reversal.

We note Rock’s argument that the trial court’s construction of the relevant statute “offends due process, is illegal, unconstitutional, null, and void.” But even assuming that Rock’s due process arguments were raised in the trial court, these arguments were not directly addressed by the court below. And we cannot “rule on a constitutional question unless it clearly appears in the record that the trial court distinctly ruled on the point.” (Citations, punctuation and footnote omitted.) Haynes v. Wells, 273 Ga. 106, 108 (3) (538 SE2d 430) (2000).

3. Rock argues that the trial court’s order in this case is inconsistent with and nullifies an earlier order entered in a different lawsuit.

The present lawsuit was filed December 9, 1998. On December 22, the board passed a resolution stating that it did not know how to interpret its earlier vote concerning Rock’s application for rezoning, and the board ordered that no permits issue until a judicial decision was made on the issue of whether the vote constituted approval of the application. Head, supra at 758. Rock then filed a separate action on January 1,1999, for mandamus to seek issuance of permits. Plaintiffs were not parties to that suit. In its answer to this separate action by Rock and the present suit, DeKalb County admitted that the rezoning was successful. The plaintiffs’ present lawsuit was dismissed, and the trial court granted Rock’s petition for mandamus and ordered the county to issue necessary permits for Rock’s use of the property as an office. Meanwhile, the plaintiffs appealed from the dismissal of their action, and this court reversed. The trial court subsequently entered the declaratory judgment that is the subject of this appeal.

Decided March 21, 2002

Dillard & Galloway, G. Douglas Dillard, Andrea C. Jones, for appellant.

Susan M. Garrett, Robert E. Price, Joan F. Roach, for appellees.

Rock argues that the order granting the declaratory judgment is inconsistent with the trial court’s earlier order granting a writ of mandamus for issuance of necessary permits. But the plaintiffs in this action were not parties to the mandamus action and therefore had no forum in which to make arguments concerning the effect of the board’s vote. For this reason, to the extent that Rock contends that the trial court’s order has a preclusive effect on collateral estop-pel grounds, he cannot prevail. The appellees were not parties to the litigation concerning the mandamus, and Rock has not shown that the contested issues “were actually litigated and decided and were necessary to the prior decision.” (Citations and punctuation omitted.) Cleland v. Gwinnett County, 226 Ga. App. 636, 638 (487 SE2d 434) (1997). Rock argues that application of the principles discussed in Cleland could result in the issuance of additional, perhaps inconsistent, orders in other courts concerning the relationship between and application of the 1981 and 1992 Acts, and more broadly, with respect to other zoning concerns. But Rock’s contentions, are speculative at best. Moreover, Rock presumably had full knowledge that issues concerning the effect of the board’s vote were pending on appeal when he filed the mandamus action. Consequently, to a great extent, his own actions precipitated issuance of the two orders that he now contends are inconsistent. We find no merit in Rock’s arguments concerning this issue.

Judgment affirmed.

Barnes and Phipps, JJ, concur.

       In Head, supra, citing Palmer, supra, we noted that whether a property owner can challenge the rezoning of a neighbor’s property is a different issue than the question of whether the property owner can prevent his neighbor from developing his property in violation of existing zoning. Id. at 761, n. 15. The trial court’s order takes this distinction into account, as it states that the issues plaintiffs seek to have decided involve their ability to prevent Rock from using his property in violation of existing zoning restrictions.


source: Caselaw Access Project

author: Pope, Presiding Judge.

license: Public Domain

text:
    A01A2305.
    CROMER v. MULKEY ENTERPRISES, INC. et al.
    (562 SE2d 783)
   Pope, Presiding Judge.

Sandra Cromer was injured in a minor car accident in which the person causing the accident admitted responsibility. A jury heard evidence on damages and causation and returned a verdict of $85,000 in favor of Cromer. Despite the victory, she contends on appeal that the verdict was against the weight of, or contrary to, the evidence and that the trial court erred by limiting the testimony of her expert witness.

In April 1996, in stop-and-go traffic, Cromer was struck from behind in a chain-reaction accident. Jeffrey Cull, driving a truck for his employer Mulkey Enterprises, Inc., failed to brake in time to avoid hitting one vehicle, which then struck Cromer’s car, which, in turn, lightly tapped the vehicle in front of her. The damage to Cro-mer’s car was estimated at between $600 and $750. Cromer initially sought treatment from a doctor, a massage therapist, and a chiropractor. Eleven months after the accident, Cromer sought treatment from Dr. Plas James, who diagnosed Cromer as having herniated disks in her neck and lower back. James treated Cromer with injections, physical therapy, and multiple surgeries for neck and lower back pain. Two years after the accident, Cromer sought treatment from Dr. Rajiv Pandya for right shoulder pain. He diagnosed Cromer with a torn rotator cuff. Cromer had two additional surgeries and physical therapy for that injury. In all, Cromer incurred $222,968 in medical expenses. Both Dr. James and Dr. Pandya concluded that Cromer is permanently disabled and that the cause of her injuries was the accident in question. Cromer also produced evidence of lost past and future income exceeding $1 million. The jury awarded Cro-mer $85,000.

1. In two separate enumerations, Cromer contends the verdict was contrary to the evidence and justice, and against the weight of the evidence. We disagree.

Although Cromer presented evidence to support the conclusion that her medical treatment and lost income were the result of the accident caused by Cull, Mulkey Enterprises and Cull (hereinafter “Mulkey”) presented evidence to contradict that conclusion. Mulkey introduced evidence that Cromer failed to fully disclose her medical history, including some of her pain and its sources, to Dr. James and Dr. Pandya, which partially undermined their opinions that the Cull accident was the cause of her injuries. Cromer also had two other automobile accidents during the years following the accident at issue, one of which included injuries, and at least one lifting injury that could have affected her back. It was also shown that Cromer had other medical problems, including some related to her shoulder and collarbone. Finally, the physician who first treated her testified that her later surgeries were not related to the Cull accident.

“Where a jury returns a verdict and it has the approval of the trial judge, the same must be affirmed on appeal if there is any evidence to support it as the jurors are the sole and exclusive judges of the weight and credit given the evidence.” (Citations and punctuation omitted.) MARTA v. Green Intl., 235 Ga. App. 419, 420 (1) (509 SE2d 674) (1998). Here, there is evidence supporting the jury finding that less than all of Cromer’s alleged damages were caused by the Cull accident.

2. Cromer also contends the trial court improperly excluded material evidence. Cromer intended to call Dr. Alan James Watts, Ph.D., a physicist, to give his expert opinion in the field of bio-mechanics, including to opine that the Cull accident caused her injuries. On the first day of trial, Mulkey moved in limine to exclude this testimony. Mulkey argued that Watts’ testimony was not outside the knowledge of the jury; that it was cumulative of other testimony; and that Watts was not sufficiently informed about the facts. The court denied the motion, but explained that it might prohibit Dr. Watts from testifying about certain matters.

When Cromer called Dr. Watts to the stand during the trial, Mulkey renewed its motion. Mulkey objected to Dr. Watts giving opinions in the field of medicine as opposed to accident reconstruction. Mulkey also argued that Watts was not qualified to opine that the Cull accident caused the specific injuries that Cromer had suffered. Further, Mulkey urged that the testimony was cumulative of the testimony of Dr. James and Dr. Pandya, both of whom testified that the Cull accident was the cause of Cromer’s injuries.

At the court’s request, Cromer said that Watts was going to explain:

how the accident occurred. He’s going to, based on the testimony that we’ve elicited from the witnesses, the actual parties, people involved in the accident, . . . and from the damage reports, etc., he will assess the relative speeds of the vehicles at the impact. He will then take that information and, using his physicist background and his extensive study in the field of biomechanics over the last seven years, including studies of impacts and low-speed rear-end impacts in particular, he will then be able to render an opinion as to . . . whether an individual could sustain the type of injuries involved in this accident.

Cromer later said that Watts would explain how the accident affected the physical components of her body, such as her vertebrae and the rotator cuff. “He is going to testify that he knows enough about the makeup of the disk, of the vertebrae, of the bone, all of the structures of the physical anatomy of the human body to render an opinion about the effect. . .” of the accident on her body.

The court was concerned that the opinion went too far. The court said,

Now, the gentleman may testify as to how the incident occurred, what manner it occurred, the velocity that he believed the vehicles were traveling. And he could even testify in my opinion what — how he believed the body would have reacted inside the cabin. But I’m not going to let him say that he reached the next level of conclusion and that is that it was a cause of the condition found to exist in the plaintiff’s body by Dr. James.

Upon this ruling, Cromer proffered the witness. Dr. Watts testified that he received a degree with honors in physics in 1965 and a Ph.D. in physics in 1969, both from the University of Exeter in England. Dr. Watts explained that biomechanics is the application of mechanics to anatomy and that it is a university study. For 22 years he has studied the behavior of materials under different levels of stress and impact and assault. He identified resources that he had consulted in forming his analysis of impacts and how they affect the human body, including data published by the Society of Automotive Engineers, which address such things as cadaver tests and volunteer tests, and various books that address the movement and injury mechanisms of the human neck. He has given seminars on low-speed automobile accidents and has written a book addressing low-speed impacts and biomechanics. The witness explained that he could

tell you which cervical disk is most likely to be injured, based on the radiography tests that have been published. . . . They’ve taken volunteers at relatively low speeds such as two-and-a-half miles an hour, they have allowed a person sitting in a sled to come to an abrupt halt traveling backwards that simulates a rear-ender. They have then used x-rays put in a [video] to actually study the structure of how the neck bends. Based on that, they have observed that the largest bending movement occurs at the C-5, C-6 region, which is the most vulnerable part of the neck.

Finally, Dr. Watts noted that he has been qualified as an expert in the field of biomechanics to render an opinion about the likelihood of injury following an automobile accident in five other states and several federal courts.

During the questioning, the court further elaborated on its concern,

Okay. The point that I’m making, and you can well see it, is that I can conceive of you being able to tell me how the body is going to react after a collision in the cabin of the car. But I cannot see you being able to tell me what cervical disks or that the cervical disk or lumbar disks on the human being that was in the car were caused by the incident in question. And that’s the point that’s being made here. And if [Dr. Watts] is not planning on doing that, that’s fine. . . .

The trial court then concluded by stating,

I understand that he has — he can relate that there are studies that look at some kind of methods to, and are able to state with or without reasonable certainty that if the body moves any certain direction after the vehicle being hit in a certain way, that most likely, or that more often than not, it may cause an injury at a certain cervical disk level. It is still my opinion, and I still have some more authority that helps me with it, and I’ll cite it to you. It’s in Naimat v. Shelbyville Bottling Co., Inc.[, 240 Ga. App. 693 (524 SE2d 749) (1999). This case] bolsters my feeling about whether or not he can tell me that the cervical disk problem, the shoulder problem, and the other problems suffered by your plaintiff [were] caused in any way by the collision in question. Therefore, I’m going to stay with my ruling. The answer is no.

At that point, Cromer withdrew the witness. ‘Your Honor, since this witness was being offered primarily for the purpose of that very opinion, we’re not going to offer his testimony.”

After trial, the court denied Cromer’s motion for new trial on this same point. In the order, the court stated that it limited Dr. Watts’ testimony because (1) it was cumulative of other testimony; (2) Watts had not seen all the relevant data regarding the accident; and (3) the testimony could be unhelpful, confusing, or misleading. The court also noted that Cromer withdrew the witness.

“The opinions of experts on any question of science, skill, trade, or like questions shall always be admissible; and such opinions may be given on the facts as proved by other witnesses.” OCGA § 24-9-67. The admission or exclusion of evidence is within the sound discretion of the trial court and will not be disturbed on appeal absent an abuse of discretion. American Petroleum Products v. Mom & Pop Stores, 231 Ga. App. 1, 7 (3) (497 SE2d 616) (1998).

Here, although the parties quibble about the nature of the trial court’s decision and the reason for it, the court essentially concluded that the witness was not qualified to testify to the ultimate fact in issue — whether the Cull accident caused the specific injuries for which Cromer sought compensation, and that the testimony was cumulative of other testimony.

That Watts planned to testify to the ultimate issue is not per se objectionable. “Expert opinion testimony on issues to be decided by the jury, even the ultimate issue, is admissible where the conclusion of the expert is one which jurors would not ordinarily be able to draw for themselves; i.e., the conclusion is beyond the ken of the average layman. . . .” (Citation and punctuation omitted.) Carlock v. Kmart Corp., 227 Ga. App. 356, 361 (3) (b) (489 SE2d 99) (1997). However, “[a] party may not bolster his case as to the ultimate issue with expert testimony when the jury could reach the same conclusion independently of the opinion of others.” (Citations and punctuation omitted.) Id.

But here the jury had to decide whether the Cull accident caused Cromer’s injuries given that there were other possible causes of her injury and given that medical doctors disagreed about the cause. Because jurors do not have the expertise to answer that question for themselves, we conclude that a properly qualified expert could testify to causation in this case. And that expert need not be a medical doctor. Georgia law does not mandate that only medical doctors may testify regarding medical issues; others with certain training and experience may testify on issues within the parameters of their expertise. Goodman v. Lipman, 197 Ga. App. 631, 633 (3) (399 SE2d 255) (1990); OCGA § 24-9-67.

The Supreme Court has given guidance regarding the type of expertise required for determining whether one of two accidents caused a certain injury. Johnson v. Knebel, 267 Ga. 853 (485 SE2d 451) (1997). As stated therein,

in order to possess the expertise required to render an expert opinion as to the proximate cause of physical injuries purported to result from one of two separate automobile collisions, a witness must have had at least some training or experience in deducing the effects of automobile collisions upon human passengers. This in turn requires some degree of expert knowledge in the realms of human physiology and anatomic structure, including biomechanics and osteol-ogy. . . . [I]t also requires some knowledge concerning the structure of the automobile’s passenger compartment, and any passenger safety devices used therein, such as passenger restraints, airbags, and reinforced side, front and rear panels. Furthermore, the expert witness must be able to relate the objective means used in applying this expert knowledge to determine that the specified injury to the passenger was caused by particular damage to the automobile.

Id. at 858 (3). However, even if one is qualified as an expert, the scope of what is admissible as expert opinion testimony is not unlimited. An expert may not give opinions “outside the domain of the science, art, or trade in which they are experts.” (Citations and punctuation omitted.) Id. “With respect to [each] particular scientific procedure or technique, the trial court makes a determination whether the procedure or technique in question has reached a scientific stage of verifiable certainty, based upon evidence, expert testimony, treatises, or the rationale of cases in other jurisdictions.” (Citations and punctuation omitted.) Jordan v. Ga. Power Co., 219 Ga. App. 690, 693 (1) (466 SE2d 601) (1995).

Thus, the questions faced by the trial court were (1) whether the ability to determine if a certain accident caused a certain injury has reached a scientific stage of verifiable certainty and (2) whether Dr. Watts had expertise in that science.

We find that the trial court did not abuse its discretion because Cromer did not present sufficient evidence to show either point. We find limited evidence in the record that the field of biomechanics includes a technique of determining if specific injuries result from specific accidents, let alone that that technique has reached a scientific stage of verifiable certainty. Simply mentioning that there have been “cadaver tests” or that volunteers have been filmed in low-speed accidents does not answer the question. No information was provided that scientific studies have been performed to show how much force and movement it takes to herniate a disk or to tear a rotator cuff. No treatises or cases from other jurisdictions were introduced to support Cromer’s position.

Further, Dr. Watts did not show that his expertise included being able to determine if a certain accident caused a certain injury. Even he testified that what he was prepared to say fell somewhat short. He testified that he could opine “which cervical disk is most likely to be injured” and “which is the most vulnerable part of the neck.” And there is no support whatsoever for the proposition that he can deduce whether someone would sustain a tom rotator cuff injury in an accident. The trial court was prepared to allow Dr. Watts to testify “as to how the incident occurred, what manner it occurred, the velocity that he believed the vehicles were traveling . . . , [a]nd . . . how he believed the body would have reacted inside the cabin.” Given the lack of support for an expert opinion exceeding this scope, we cannot say the court abused its discretion.

Decided March 21, 2002.

Mozley, Finlayson & Loggins, Robert M. Finlayson II, R. Ann Grier, Jennifer E. Theobold, for appellant.

Finley & Buckley, Timothy J. Buckley III, for appellees.

Finally, we are somewhat limited in assessing any error because Cromer chose to withdraw the witness. Given that the court would have allowed certain testimony and that it is unclear exactly what Watts was going to say, we cannot review the issue any more closely to determine if admissible testimony was prohibited.

Judgment affirmed.

Blackburn, C. J., and Mikell, J., concur.


author: Phipps, Judge.

text:
    A01A2439.
    THE PHOENIX TOWER, INC. v. SHAFFER et al.
    (562 SE2d 788)
   Phipps, Judge.

Leroy Gatch rented property from Marie Shaffer under an unrecorded lease. Paragraph 19 of the lease gave Gatch a right of first refusal before Shaffer could sell the property. After Shaffer died, her estate sold the property to The Phoenix Tower, Inc. (Phoenix). Gatch later brought this suit against the executor of Shaffer’s estate, the estate itself, and Phoenix. Gatch complains that he was never given an opportunity to exercise his right of first refusal. He seeks a rescission of the sale to Phoenix and specific performance of his contract with Shaffer. The case was submitted to a jury on special interrogatories. Final judgment on the jury verdict was entered in favor of Gatch.

Phoenix appeals, contending that the trial court erred in denying its motion for directed verdict. Phoenix argues that it was entitled to judgment as a matter of law because (1) paragraph 19 is legally unenforceable; (2) Gatch is not entitled to specific performance, as he did not make a tender of the purchase price of the property; and (3) it, Phoenix, takes free of Gatch’s leasehold right, because it is a bona fide purchaser for value and without notice of the right. We find no merit in these arguments and affirm.

1. In reliance on Booker v. Hall, Phoenix first argues that Gatch’s right of first refusal as contained in paragraph 19 of the lease is unenforceable as a matter of law because it lacks a triggering term.

Paragraph 19 gives to the lessee “a written right of first refusal” consisting of “an offer to purchase the premises owned by the lessor for the same price and upon the same terms as that being made by the prospective purchaser to the lessor.” It requires that there be attached to “such written statement” the name and address of the prospective purchaser, the purchase price, and all other terms of the transfer or sale. “Within 30 days after the receipt of such written statement, the lessee may elect to purchase the premises owned by the lessor.” If the offer to sell is not accepted by the lessee, the lessor may sell the property to the prospective purchaser named in the written statement “in strict compliance with the terms therein stated.”

A right of first refusal has been “ ‘defined by the term preemptive right. ... A preemptive right merely sets a requirement that when the owner decides to sell the person holding the preemptive right must be offered the opportunity to buy.’ [Cit.]” The clear intent expressed in paragraph 19 is to prohibit the lessor from selling the property during the term of the lease unless the lessor provides the lessee with written notice and a period of 30 days in which to decide whether to purchase the property on the same terms as those contained in any purchase offer made to the lessor.

In Booker, the seller of a lot gave the purchaser an option to purchase two other lots if a contract for sale containing an offer on the other lots was offered to the seller within two years of the closing on the original lot. The purchaser in Booker sued because the seller sold the two other lots approximately four years after the purchase without giving him a right of first refusal. We held the option unenforceable because: (1) it was purportedly triggered by the seller’s receipt of a purchase offer, even if the seller had not decided to sell; and (2) it was limited to two years duration.

The lease in this case suffers from no defect such as that found in Booker. Paragraph 19 merely requires the lessor to offer to sell the property to the lessee before accepting an offer from anyone else, if the lessor decides to sell. Clearly, paragraph 19 is triggered by the lessor’s receipt and acceptance of an offer to purchase the property during the term of the lease, which appears without dispute to have happened here. Paragraph 19 is not unenforceable as a matter of law, for lack of a triggering term or otherwise.

Decided March 21, 2002.

Burr & Forman, John O. Sullivan, James B. Rhoads, for appellant.

Thomas & Kane, Terry-Dawn Thomas, Lawrence D. Kupferman, for appellees.

2. Phoenix next argues that Gatch was not entitled to specific performance because he failed to tender the purchase price for the property.

It is true that to be entitled to specific performance on a real estate contract, the purchaser must make an unconditional tender of the purchase money due. This tender is excused or waived where the seller, by conduct or declaration, proclaims that if a tender should be made, acceptance would be refused. The law does not require a futile tender or other useless act.

Gatch presented evidence that he attempted to exercise his right of first refusal but was never provided an opportunity to tender the purchase price because the property had already been sold to Phoenix. Tender was thus excused.

3. Finally, Phoenix argues that it occupies the position of a bona fide purchaser for value and, therefore, takes the property without being bound by the right of first refusal found in Gatch’s unrecorded lease, because Gatch introduced no evidence showing that Phoenix acquired knowledge of this right prior to its purchase of the property. This argument is without merit.

Gatch presented evidence that, prior to purchasing the property, Phoenix was apprised of the existence of the lease and of his conduct of business operations on the leased premises. The jury was authorized to find that knowledge of these facts placed a duty on Phoenix to inquire into Gatch’s rights in the premises and thus provided it with constructive notice of Gatch’s right of first refusal.

Judgment affirmed.

Smith, P. J., and Barnes, J., concur.

       248 Ga. App. 639 (548 SE2d 391) (2001).

       (Emphasis in original.) Hasty v. Health Svc. Centers, 258 Ga. 625, 626 (373 SE2d 356) (1988).

       248 Ga. App. at 641 (1) (a).

       Id. at 642 (1) (b).

       See Hewatt v. Leppert, 259 Ga. 112 (376 SE2d 883) (1989); Hasty v. Health Svc. Centers, 258 Ga. at 626.

       (Footnotes omitted.) Nowlin v. Davis, 245 Ga. App. 821, 822 (2) (538 SE2d 900) (2000).

       See generally Anderson v. Streck, 190 Ga. App. 224 (378 SE2d 526) (1989).

       See Bacote v. Wyckoff, 251 Ga. 862, 866 (2) (310 SE2d 520) (1984); Blanton v. Moseley, 133 Ga. App. 144 (2) (210 SE2d 368) (1974).


text:
    A01A2452, A01A2454.
    IDEAL LEASING SERVICES, INC. v. WHITFIELD COUNTY; and vice versa.
    (562 SE2d 790)
   Pope, Presiding Judge.

This is a condemnation case. Ideal Leasing Services, Inc. owned a 5.3-acre property in Whitfield County which it leased as a trailer truck repair facility. The County decided to extend a road through a portion of Ideal’s property, and on January 16, 1997, the planning engineer overseeing the acquisition of property for the road visited Ideal’s offices. The engineer met with two- of Ideal’s officers and told them about the County’s plan to expand the road and proposed terms for the acquisition of the property.

On July 28, 1997, Ideal filed an action against the County with the United States District Court for the Northern District of Georgia. In the action, Ideal claimed damages from the announced condemnation of the property and also requested injunctive relief against the condemnation. By its resolution of September 9, 1997, the Board of Commissioners of Whitfield County took official action to acquire a portion of Ideal’s property through its power of eminent domain. The County filed “A Petition to Condemn before Special Master” with the superior court on October 13, 1997. Due to the pendency of the federal action, the superior court stayed the condemnation proceedings at the County’s request.

The district court granted summary judgment to the County on all issues in the federal action, and its judgment was affirmed by the Eleventh Circuit Court of Appeals on January 29, 1999, which ruled that the County’s “announcement of a future condemnation” did not create a constitutional cause of action for damages. The stay of the special master proceedings was lifted on July 9, 1999. The matter went to jury trial on the issue of valuation on May 24 and 25, 2000, but the trial court subsequently granted the County’s motion for a new trial. The case was retried, and on April 18, 2001, the jury returned a verdict of $160,000 as just and adequate compensation for the taking of Ideal’s property. Judgment was entered on the jury’s verdict on April 23, 2001.

In Case No. A01A2452, Ideal appeals the April 23, 2001 judgment, and in Case No. A01A2454, the County also appeals the April 23, 2001 judgment, as well as the trial court’s order denying its subsequent motion for a new trial. For reasons discussed below, we affirm in both cases.

Case No. A01A2452

Ideal claims that the condemnation action brought by the County was an unpled compulsory counterclaim in the previous federal proceeding and thus barred as res judicata. We disagree.

Both federal and state law require that “[a] pleading . . . state as a counterclaim any claim which at the . time of serving the pleading the pleader has against any opposing party, if it arises out of the transaction or occurrence that is the subject matter of the opposing party’s claim and does not require for its adjudication the presence of third parties of whom the court cannot acquire jurisdiction.” OCGA § 9-11-13 (a); Fed. R. Civ. R 13 (a). Furthermore, both federal and state courts employ the “logical relationship” test in determining whether a counterclaim is compulsory.

Willis v. Nat. Mtg. Co., 235 Ga. App. 544, 546 (1) (509 SE2d 403) (1998) (physical precedent only).

Setting aside the question of whether the federal district court had subject matter jurisdiction over the state law condemnation matter, the County was not required to file its action to condemn the property as a counterclaim in the federal action because the counterclaim did not bear a logical relationship to the issues raised in the federal action. “The logical relationship test ‘requires a determination of “whether the essential facts of the various claims are so logically connected that considerations of judicial economy and fairness dictate that all the issues be resolved in one lawsuit.” ’ ” (Citations omitted.) Bigley v. Mosser, 235 Ga. App. 583, 585-586 (509 SE2d 406) (1998) (physical precedent only).

The issue in the federal action was the announced condemnation of the property and a request for an injunction against the condemnation. The primary issue in a special master condemnation proceeding is the just and adequate compensation to be paid to the owner of property to be condemned for a public purpose. See OCGA § 22-2-109. The “transaction or occurrence” that was the focus of the federal action was the County’s action in “announcing” a condemnation. In contrast, the state suit concerned the taking aspect of the action. State condemnation proceedings focus on (1) the market value of the property at the time of taking, and (2) the consequential damages of the taking to the remainder of the owner’s property. See Simon v. Dept. of Transp., 245 Ga. 478 (265 SE2d 777) (1980).

We have previously held that a claim for consequential damages to the remainder of property taken in a condemnation proceeding, but based on negligent construction as opposed to the damages naturally arising from the taking of the property, could not be considered in the condemnation proceeding, but must be asserted in a separate suit for damages. McArthur v. State Hwy. Dept., 85 Ga. App. 500 (69 SE2d 781) (1952); see also BIK Assoc. v. Troup County, 236 Ga. App. 734, 736 (3) (a) (513 SE2d 283) (1999). It follows that a claim focusing upon whether the actions of the County violated Ideal’s constitutional rights, such as in the federal suit Ideal filed, is a separate matter from an in rem proceeding in which the central question is the compensation for the taking of property. It follows further that, as there is no logical relationship between the two actions such that they should be resolved in one lawsuit, the condemnation proceeding would not be a compulsory counterclaim to the federal suit. The condemnation was not res judicata, and the trial court did not err in so ruling.

In view of our ruling in Case No. A01A2454, Ideal’s additional enumerations of error are moot.

Case No. A01A2454

The County claims the trial court erred in denying its motion for a new trial because the jury’s judgment of $160,000 was excessive and contrary to the evidence. We disagree. The County took 1.7 acres of 5.3 acres of land belonging to Ideal. The measure of just and adequate compensation for the taking is “first, the market value of the property actually taken; second, the consequential damage that will naturally and proximately arise to the remainder of the owner’s property, from the taking of the part which is taken and the devoting of it to the purposes for which it is condemned.” (Emphasis omitted.) Simon v. Dept. of Transp., 245 Ga. at 478. We find there is evidence which would support the jury’s total award based on the two elements of damages.

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).

Testimony showed that, because of storage needs, a truck repair facility requires at least five acres of contiguous land to be economically viable, and that by taking a portion of Ideal’s property, the remaining property would no longer be suitable for use as a truck repair facility. Ideal presented the testimony of certified general appraiser Jim Leonard, who testified that he used the income approach in valuing the consequential damages to the remainder of Ideal’s property by comparing the rental value of a truck repair facility and the rental value of similar nontruck repair facilities. He found the consequential damages were $77,500. Leonard valued the 1.7 acres taken by the County at $42,500 in total, or $25,000 per acre. The County contends that total damages of $120,000, as indicated by Leonard’s testimony, are the highest damage award allowed by the evidence, and that there is no evidence to support the jury’s award of $160,000. We agree with the County that, while a jury is not absolutely bound to the testimony of experts in determining market value, neither can the jury “be left to roam without any evidence in the ascertainment and assessment of damages.”- Municipal Elec. Auth. &c. v. Anglin, 180 Ga. App. 600, 601 (349 SE2d 546) (1986). However, $120,000 is not the largest damage amount discernible from the evidence.

Ideal presented the testimony of Jennifer Blount, a vice-president of Ideal. Counsel established that she was familiar with real estate values in the Dalton area, and then the following exchange occurred, without objection: “Q: Do you have an opinion of the value of the taking? A: Yes, sir. I don’t know why it wouldn’t be worth $45,000 an acre.” The County argues that the jury was not authorized to combine Blount’s value for the property taken by the County, which equaled $76,500 for the 1.7-acre tract, with Leonard’s valuation of the consequential damages to the remainder of Ideal’s property. The County argues that Blount’s testimony did not constitute an opinion of value, and that Blount’s testimony cannot be combined with Leonard’s testimony because his method of valuation is not compatible with Blount’s. We disagree.

Counsel asked Blount if she had an opinion as to the value of the property taken. She said that she did. Blount then makes a statement which, in the context given, could be reasonably interpreted by the jury to mean that she valued the land taken at $45,000 an acre. The County refers us to Central Ga. Power Co. v. Cornwell, 143 Ga. 9, 10 (84 SE 67) (1915), in which our Supreme Court ruled that the trial court did not err in rejecting the testimony of a witness as to consequential damages which was a statement “in general terms that he thinks a named amount would probably be a fair estimate of the consequential damages to the land not taken.” Here, however, Blount’s testimony was not excluded, and the question is not, as in Cornwell, whether the trial court erred in a decision related to the admission of evidence on consequential damages, but whether the admitted statement could be properly considered by the jury in determining the market value of the land actually taken.

The County also contends that the jury was not allowed to combine Blount’s valuation of the property taken with Leonard’s valuation of consequential damages to the remainder of the property to arrive at a general verdict for adequate compensation. The County claims that the two values are incompatible and combining them amounts to mixing “apples and oranges.” We conclude that the valuations are independent. Reviewing the methodology for Leonard’s valuation of consequential damages, it appears that the damage estimate stands alone and was calculated independently of his valuation of the land actually taken. In other words, Leonard’s valuation of consequential damages was not so intertwined with his opinion as to the value of the property actually taken that the two amounts could only be considered together.

Decided March 21, 2002.

John T. Longino, for appellant.

McCamy, Phillips, Tuggle & Fordham, James H. Phillips, Charles L. Daniel III, Daniel T. Strain, Jr., for appellee.

Other authority relied upon by the County can be distinguished on the facts. In State Hwy. Dept. v. Smith, 120 Ga. App. 529, 532 (171 SE2d 575) (1969), we held that the verdict could not be sustained by the evidence because the result required combining two incompatible measures of valuation of the same property, one which included the value of a home and the other which valued the property for commercial use and expressly assigned no value to the residence. Id. at 532 (4). In Taylor v. Jones County, 205 Ga. App. 628 (422 SE2d 890) (1992), we held that an owner was not entitled to prove, as just and adequate compensation for the taking of property, the residential fair market value of the property and also present evidence of business losses and expenses associated with the property as a separate element of compensation. Id. at 630-631 (3). Here, the evidence presented does not require the jury to reach the verdict by combining incompatible testimony within the same class of damages. The value of the land actually taken is a separate question from the consequential damages of that taking to the remainder of the property, and it is not necessarily inconsistent to value the land taken using comparable sales, as Blount does, and the consequential damages to the remainder of the property using an income method of valuation, as Leonard does. Considering both the testimony of Blount and Leonard, the verdict of the jury is within the range of the evidence, and accordingly the trial court did not err in denying the County’s motion for a new trial.

Ideal asks us to assess a penalty against the County for filing a frivolous appeal. Inasmuch as the appeal was not frivolous, we decline to do so.

Judgments affirmed.

Blackburn, C. J., and Mikell, J., concur.


author: Blackburn, Chief Judge.

text:
    A01A2469.
    A01A2470.
    A01A2471.
    A01A2472.
    PAYNE v. HARBIN. ROME BROKERS, INC. v. HARBIN. POWERS v. HARBIN. KELLEY v. HARBIN.
    (562 SE2d 772)
   Blackburn, Chief Judge.

In these four related interlocutory appeals regarding fraudulent inducement to sell certain mountain property, Dwight Payne, Rome Brokers, Inc., Nicholas D. Powers, and James M. Kelley (defendants) appeal the trial court’s denial of their motion for summary judgment, contending that the plaintiff, Elizabeth Warner Harbin, presented insufficient evidence to show that they conspired to convince her to sell the property at a depressed value. Because the evidence indicates that, despite Harbin’s claims, she received the benefit of the specific bargain chosen by her, we find that the trial court should have granted summary judgment to defendants and reverse.

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

Matjoulis v. Integon Gen. Ins. Corp.

This case arose out of the sale of real property located on Bogan Mountain, which was originally owned by Dr. William Harbin. On October 5, 1990, Dr. Harbin, whose health was failing, transferred the Bogan Mountain property to his wife, Elizabeth, who is the appellee here. David Bain, a neighbor of the Harbin family, grew up on a farm at the foot of Bogan Mountain and, as an adult, expressed an interest in buying the Bogan Mountain property. In 1994, Bain made an offer to the Harbins to purchase Bogan Mountain for $550,000. This offer to purchase the property was rejected. Dr. Harbin did, however, lease hunting rights on Bogan Mountain to Bain.

In 1995, Mrs. Harbin and her four daughters decided to sell the Bogan Mountain property. At their request, Kelley, an employee of Rome Brokers, appraised the property, and he came up with a retail value of $496,000. The following year, Mrs. Harbin contacted Kelley and asked him to sell the property by means of a “pocket listing,” a private listing without advertising or any official posting. Kelley, in turn, told his partner, Harry Anderson, about the Harbins’ decision to sell, and Anderson then contacted Powers, one of his clients.

Although Powers was interested in purchasing the property, he wanted to contact Charles O’Hearn, a Mend from south Georgia, about financing the purchase. O’Hearn told Powers that, although he did not personally have the money to purchase the land, Powers could use O’Hearn’s name in negotiating the sale and financing of the deal. O’Hearn informed Powers, however, that he would not sign any documents relating to the sale because he did not wish to be legally obligated in any way. Powers agreed to this scenario and moved forward with the transaction.

In March 1996, Powers, using O’Hearn’s name, made an offer to purchase the Bogan Mountain property for $429,520. Upon receiving the offer, Louisa Harbin Hunter, one of the Harbin daughters, contacted Bain to inform him they intended to sell the Bogan Mountain property to a man from south Georgia and that as a result his hunting lease might be affected. At that point, Bain, who harbored a sentimental attachment to the land, offered $650,000 to purchase the property.

After hearing Bain’s offer, Louisa Harbin Hunter contacted Kelley to ask him about Bain’s credit rating. According to Louisa Harbin Hunter, Kelley offered to contact a local banker to determine whether Bain could fund his offer to purchase the property. Kelley then contacted Michael Baker at Regions Bank, who told Kelley that, although Bain’s credit was good, based upon the appraised value of the property, Bain would be able to borrow only around $300,000 to purchase the property. The rest would have to be paid in cash.

Louisa Harbin Hunter admitted that no effort was made to look into any assets Bain might have which would help him raise the rest of the necessary funds to meet his offer, and she did not ask Kelley to do any more research in the matter. Louisa Harbin Hunter further testified that, based upon Kelley’s initial research, which consisted of Kelley’s conversation with Baker, she, her mother, and her sisters felt it would be better to sell to someone who was a “sure thing.” This position was also evinced by the testimony of Elizabeth Harbin Hunter, another daughter of the Harbins, that the Harbins decided to pursue O’Hearn’s offer instead of Bain’s because they were concerned that Bain might not be able to raise the purchase money.

With regard to the actual sale of the property, O’Hearn’s name was on all of the offers and counteroffers, but he never actually signed any of the papers and was not present at closing. In actuality, and pursuant to the agreement between Powers and O’Hearn, Powers was purchasing the property. Shortly after Powers and Harbin executed their sales contract, Bain contacted Powers about purchasing the property from him. Bain offered Powers $700,000 for the property, which Bain readily admits was in excess of the property’s fair market value. Powers accepted the offer and then contacted his attorney, Dwight Payne, to prepare a sales contract. On April 16, 1996, Powers and Bain signed a purchase agreement for $700,000.

The closing on the Harbin-O’Hearn sale took place in May 1996. The documents were taken to Harbin at home, and she signed the documents in front of her attorney, Virginia Harmon, and Kelley. At that time, Payne agreed to secure the signature of O’Hearn, but told them O’Hearn would not be present at closing. Sometime thereafter, Anderson admits that, while at Payne’s office, he signed the name “Charles O’Hearn” to several closing documents, including a warranty deed from O’Hearn to Bain, a quitclaim deed from O’Hearn to Bain, and a closing statement. After these transactions, the Powers-Bain deal was also closed. Subsequently, O’Hearn signed a quitclaim deed to Bain in order to clear up any possible title questions caused by Anderson signing the documents.

Harbin now argues that the defendants must pay her the difference between the purchase price paid by Powers and the purchase price paid by Bain, contending that defendants defrauded her by convincing her not to sell to Bain, using a straw man to purchase the property at a depressed price, and then selling the property to Bain themselves. For the same reason, Harbin argues that the defendants were negligent, breached their contract with her, and breached their fiduciary duties. The undisputed evidence, however, does not support Harbin’s claims, as Harbin ultimately received the benefit of the bargain chosen by her.

To establish fraud, Harbin must prove five elements: “(1) a false representation or omission of a material fact; (2) scienter; (3) intention to induce the party claiming fraud to act or refrain from acting; (4) justifiable reliance; and (5) damages.” ReMax North Atlanta v. Clark.

It is undisputed that Powers used a straw man, O’Hearn, to negotiate the deal with the Harbins. However, it is also undisputed that the Harbins did not care about the actual identity of the purchaser of the property. All they knew was that the purchaser was a man from south Georgia, and they made no further inquiries. Harbin got the benefit of the bargain she struck. She suffered no harm or damages as she received everything she contracted to receive in the sales contract.

Although the Harbins now vociferously point to the use of a straw man as grounds to undo their poor business deal, their allegations of fraud and deceit lack merit. Harbin had no idea who was purchasing her property. And, the identity of the purchaser was not a relevant factor to her, just that the purchaser had the ability to pay in cash. Based on this latter qualification, Harbin and her daughters made the conscious decision to reject Bain’s offer and accept the offer from Powers. Ultimately, therefore, Powers was the one taking the risk as to whether Bain would be able to come up with the cash to meet his offer. It was undisputed that Bain’s offer was well over the appraised value and financing would be a risk. However, that was a risk the Harbins chose not to take. They cannot now change their minds.

There is no evidence that the information given by Kelley to the Harbins was false or misleading. To the contrary, it appears to be the truth. The bank, considering the appraised value of the property, would have been willing to lend only $300,000 on the land. Bain was going to have to come up with more than twice that to meet his offer to Hunter. Kelley and the Harbins felt this risk was greater than they wanted to take. However, there is no evidence that Kelley committed fraud, deceit, or negligence in his advice to the Harbins.

Further, although Rome Brokers facilitated both closings and knew that Powers was the actual buyer, again that information was irrelevant to the Harbins as they never even knew or cared about who the person purchasing the property was until after the closing had taken place. Rome Brokers, like Powers its client, was also taking the risk that Bain would be able to come up with the cash to complete his transaction with Powers. This in no way constitutes fraud, deceit, or negligence on the part of Rome Brokers.

This appears to be a case of cold feet and subsequent regret. After the Harbins realized that Bain was able to fund his offer and recognized their mistake, they believed they were wronged. However, they had every opportunity to discuss Bain’s offer with him and to seek verification from Bain as to his ability to obtain the necessary funds to meet his offer. Instead, the Harbins chose to ask Kelley to research Bain’s credit rating. Kelley did so and determined Bain would not be able to borrow anywhere near the necessary amount he needed to purchase the property at the offered price. That information was never found to be false. Further, it is undisputed that O’Hearn’s offer was reasonable based upon the fair market value of the property. O’Hearn was a sure thing, and the Harbins achieved their bargained-for result.

The claim against Payne consists of a legal malpractice claim; however, there is no evidence of an attorney-client relationship between Payne and the Harbins. The Harbins were represented by Harmon, and they did not request any legal services from Payne. See, e.g., Legacy Homes v. Cole. Further, once again, there is no evidence that the Harbins were harmed. They got the bargain they struck.

Decided March 21, 2002.

Hawkins & Parnell, H. Lane Young II, Carl H. Anderson, Jr., for appellant (case no. A01A2469).

Tisinger, Tisinger, Vance & Greer, J. Thomas Vance, Kenneth B. Crawford, for appellant (case no. A01A2470).

David G. Archer, Edward K. Lovell, for appellant (case no. A01A2471).

Minor, Bell & Neal, William F. Jourdain, Robert G. McCurry, for appellant (case no. A01A2472).

Davis, Matthews & Quigley, Baxter L. Davis, Kurt A. Kegel, Davidson & Strain, William E. Davidson, Jr., for appellee.

The factual issues the trial court found to be in dispute appear to have no bearing on the efficacy of Harbin’s claims of fraud and deceit. Whether O’Hearn ever intended for Anderson to sign his name to the documents has no relevance as to whether the Harbins got the benefit of their bargain. Further, there was no breach of the sales contract with the Harbins as they got everything they were entitled to under the terms of the contract. And, for the same reason, Harbin’s claims against the defendants for negligence and breach of a fiduciary duty must also fail, as Harbin, who had the relevant facts at her disposal, received exactly what she asked to receive.

The trial court erred in denying summary judgment.

Judgments reversed.

Pope, P. J., and Mikell, J., concur.

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

       Dr. Harbin is now deceased.

        ReMax North Atlanta v. Clark, 244 Ga. App. 890, 893 (537 SE2d 138) (2000).

        Legacy Homes v. Cole, 205 Ga. App. 34 (421 SE2d 127) (1992).


author: Barnes, Judge.

text:
    A02A0386.
    A02A0387.
    INTERFINANCIAL PROPERTIES, INC. v. MARY T. CRISTAL TRUST et al. STUDIO X, INC. v. MARY T. CRISTAL TRUST et al.
    (562 SE2d 757)
   Barnes, Judge.

Interfinancial Properties, Inc. and Studio X, Inc. (collectively “plaintiffs”) appeal from the trial court’s order granting summary judgment to the Mary T. Cristal Trust, Robert Krasnoff and Richard Browdy (collectively “defendants”) in this breach of contract case arising from a right of first refusal to purchase clause in a commercial lease. In their appeals, plaintiffs assert identical arguments as to why the trial court erred by granting summary judgment. Specifically, plaintiffs assert that the trial court erred by (1) interpreting the right of first refusal to impose the condition that Studio X must enter into a separate and binding contract in order to properly exercise its right of first refusal; (2) ruling Studio X did not timely and properly exercise its right; (3) implicitly ruling that the defendants had no duty to provide signed and suitable documents to Studio X; and (4) finding no waiver of the conditions in the right by the Trust. After considering each of these arguments, we affirm.

The record shows that the Trust and Studio X entered into a commercial lease that gave the following right of first refusal to Studio X:

During the term of Tenant’s tenancy in the demised premises, should the Mary T. Cristal Trust receive an acceptable offer to purchase the property of which the demised premises are a part, Mary T. Cristal Trust grants Tenant the right of first refusal to match the offer and purchase the property. In order to exercise its right of first refusal, Tenant must enter into a binding earnest money contract identical to that which was presented to Mary T. Cristal Trust within 14 days of being presented with a copy of the acceptable contract.

During the term of the tenancy, the Trust received an offer from a third party to purchase the property. Because the third party requested that the Trust obtain a release from Studio X of its right of first refusal, one of its trustees, defendant Krasnoff, personally delivered a copy of the offer and a written release to the principal of Studio X, Howard Alpern. According to Krasnoff, he told Alpern that the third party’s offer “might be acceptable to the Trust.” Alpern testified that Krasnoff told him “the contract was acceptable to the Trust.” Alpern refused to sign the release of Studio X’s right of first refusal.

Exactly 14 days after receiving a copy of the third party’s offer, Studio X’s attorney sent the Trust a real property purchase agreement signed by Alpern. The accompanying cover letter stated:

Please be advised that [this] law firm is counsel to Studio X, Inc. regarding the [right of first refusal granted to Studio X]. This letter shall serve as a response to the unexecuted Contract for the Purchase and Sale of Real Property by and between Mary T. Cristal Trust, as Seller, and Five Kings, Inc., as Purchaser, on October 28, 1998 (the “Contract”)./ My client hereby exercises it[s] Right of Refusal granted pursuant to Paragraph 15 of Exhibit B-Special Stipulations of the Commercial Lease Contract (Revised June 1980), entered into by and between my client, as Tenant, and Mary T. Cris-tal Trust, as Landlord, dated January 26,1993, as extended. Enclosed please find two (2) Real Property Purchase Agreements by and between Studio X, Inc., as Purchaser and Mary T. Cristal Trust, as Seller, containing identical business terms to the Five Kings, Inc. offer that have been executed by my client, together with financial documentation supporting my client’s ability to perform its obligations under the Agreement. Note that the financial documentation enclosed is provided by two shareholders of Studio X, Inc. Kindly execute each copy on behalf of the Seller and return a fully executed original to me at the above address. Upon receipt of a fully executed Agreement, I will forward my client’s check in the amount of Ten Thousand Dollars ($10,000) to Perimeter Title Services, Inc. in accordance with the terms of the Agreement. . . .

A comparison of the two contracts reveals eight differences in terms, the following two of which are clearly material: (1) The Studio X offer was subject to the assumption of a loan, while the third party offered cash with no financing contingency, and (2) The Studio X offer gave it an unlimited right of assignment without the Trust’s consent, while the third party’s offer contained a limited right of assignment with no release of liability absent the Trust’s consent. According to Studio X’s attorney, he subsequently talked with Krasnoff to alleviate his concerns regarding time frame and money. The conversation allegedly concluded with Krasnoff declaring, “we have a deal.”

Nine days after receiving Studio X’s offer, the Trust sent a letter to both the third party and Studio X terminating their “preliminary discussions and negotiations” because the majority of the Trust beneficiaries could not agree to sell the property. As of the date the Trust moved for summary judgment, it had not sold the property.

After learning that its tenancy would be terminated when its lease expired, Studio X sued the defendants. Asserting that it had properly exercised its right of first refusal, Studio X sought a declaratory judgment in its favor on that issue, an injunction preserving the status quo (Studio X’s possession of the property), damages from the Trust for breach of contract, and damages from the individual trustees (Krasnoff and Browdy) for misrepresenting their authority to bind the Trust. While the lawsuit was pending, Interfinancial Properties became a joint venturer with Studio X to develop the property, and the trial court granted its motion to intervene as a plaintiff.

After the expiration of the discovery period, defendants moved for summary judgment, asserting that (1) the right of first refusal violated the statute of frauds; (2) Studio X failed to satisfy an express condition precedent in the contract; and (3) the Trust did not breach the right of first refusal because it did not sell the property. The trial court granted the motion based on Studio X’s failure to satisfy a condition precedent in the right of first refusal.

1. The standards applicable to motions for summary judgment are announced in Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991). When ruling on a motion for summary judgment, “the opposing party should be given the benefit of all reasonable doubt, and the court should construe the evidence and all inferences and conclusions arising therefrom most favorably toward the party opposing the motion.” (Citation and punctuation omitted.) Moore v. Goldome Credit Corp., 187 Ga. App. 594, 596 (370 SE2d 843) (1988). ‘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.” (Citation and punctuation omitted.) Desai v. Silver Dollar City, 229 Ga. App. 160, 163 (1) (493 SE2d 540) (1997). Contract disputes are particularly well suited for adjudication by summary judgment because construction of contracts is ordinarily a matter of law for the court. Burns v. Reves, 217 Ga. App. 316, 318 (1) (457 SE2d 178) (1995).

2. Plaintiffs assert the trial court erred by interpreting the right of first refusal to include a condition precedent, namely, that it enter into an identical binding earnest money contract. We disagree. The right of first refusal expressly stated that: “In order to exercise its right of first refusal, Tenant must enter into a binding earnest money contract identical to that which was presented to Mary T. Cristal Trust within 14 days of being presented with a copy of the acceptable contract.” (Emphasis supplied.) We have previously held that “ ‘words such as “on condition that,” “if,” and “provided,” are words of condition, and in the absence of indication to the contrary, the employment of such words in a contract creates conditions precedent.’ ” Fulton County v. Collum Properties, 193 Ga. App. 774, 775 (1) (b) (388 SE2d 916) (1989). In this case, the language “in order to exercise its right of first refusal” are also words of condition creating a condition precedent.

3. Plaintiffs also contend that they properly exercised their right of first refusal through their attorney’s “letter of exercise.” According to plaintiffs, their attorney’s statement that “[m]y client hereby exercises its Right of Refusal granted pursuant to [the lease]” was an acceptance of the Trust’s offer to sell and obligated the Trust to sell the property. This argument ignores the condition precedent in the right of first refusal. “ ‘A condition precedent must be performed before the contract becomes absolute and obligatory upon the other party.’ ” Fulton County, supra, 193 Ga. App. at 775. In this case, the record shows that Studio X failed to provide the Trust with a binding earnest money contract identical to that submitted by the third party. As a result, the trial court did not err by holding Studio X failed to satisfy the condition precedent in the right of first refusal.

Decided March 21, 2002

Albert A. Chapar, Jr., for appellant (case no. A02A0386).

Lee M. Bagel, for appellant (case no. A02A0387).

Weener, Mason & Nathan, William P. Mason, Holt, Ney, Zatcoff & Wasserman, Joseph S. Jacobson, Jay F. Castle, for appellees.

4. Plaintiffs further assert the trial court erred by implicitly ruling, “the Trust had no duty to provide signed and suitable documents to [Studio X].” We find no merit in this argument because the right of first refusal imposed the condition precedent on the Tenant — Studio X. The terms of the lease only obligated the Trust to provide Studio X with a copy of an acceptable contract, which the Trust did. The Trust fulfilled its obligations by providing a copy of the third party’s offer to Studio X.

5. In their remaining argument, plaintiffs assert that the Trust waived any noncompliance with the condition precedent by its trustees’ conduct after receiving Studio X’s offer. We find no merit in this argument because the lease contained the following provision: “No failure of Landlord to exercise any power given Landlord hereunder or to insist upon strict compliance by Tenant of his obligations hereunder and no custom or practice of the parties at variance with the terms hereof shall constitute a waiver of Landlord’s right to demand exact compliance with the terms hereof.” See Sovereign Camp Woodmen &c. v. Hart, 187 Ga. 304, 309-310 (1) (200 SE 296) (1938).

Judgments affirmed.

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


text:
    A01A1803.
    YANCEY v. POE.
    (562 SE2d 798)
   Barnes, Judge.

Kyle Yancey sued Mickey Poe after Poe built a fence and erected a gate across a road providing the sole access to Yancey’s property. Yancey contends that the trial court erred by granting summary judgment to Poe because the road on which the gate was placed is a dedicated public right-of-way. Because „ we find a genuine issue of material fact exists as to whether the gate is located within the public right-of-way, we reverse.

The record shows that in 1995, Poe executed a “Right of Way Deed” to Paulding County conveying fee simple title to 60 feet of land on either side of the centerline of County Road 376, also known as Gum Springs Road, between Electric Dam Road and the “dead end.” On March 3, 1999, the county right-of-way coordinator wrote Poe a letter reciting that it had come to the county’s attention that a gate had been erected across the county’s right-of-way on Gum Springs Road in violation of county law. In August 1999, the county right-of-way coordinator again wrote Poe, this time stating that, “[b]ased upon much deed research and fieldwork,” the surveyor hired by the county established that the county’s right-of-way continues up to Yancey’s property line. In March 2000, the Paulding County Director of Transportation testified on deposition that, in the Department’s opinion, the Gum Springs right-of-way continues onto Yancey’s property.

In December 2000, the trial court granted Poe’s motion for summary judgment, holding that “no documents in evidence [show] a clear intent by the Defendant to abandon the property to the County government.” Yancey claims the trial court erred in granting summary judgment to Poe and in denying his motion for partial summary judgment.

1. Poe argues that the appeal should be dismissed because it was untimely, and we will treat his argument as a motion to dismiss under Court of Appeals Rule 41 (c). Poe correctly points out that the notice was filed more than 30 days after the trial court entered the first summary judgment order, although, he concedes, less than 30 days after the entry of its amended order. The original order, after detailing reasons for granting summary judgment to Poe, concluded by granting Yancey’s motion for summary judgment. The amended order differs only in stating that it is Poe’s summary judgment motion that is granted.

The amended order did more than correct mere clerical errors or record some previously unrecorded action; it changed the parties’ substantive rights. Therefore, we find that it extended the statutory period for filing a notice of appeal. In the Interest of H. L. W., 244 Ga. App. 498 (535 SE2d 834) (2000). Accordingly, the appeal was timely because it was filed within 30 days of the amended order’s entry.

2. “When reviewing the grant or denial of summary judgment, this Court conducts a de novo review of the law and the evidence, construing the evidence and all reasonable deductions therefrom in favor of the nonmovant.” Strozzo v. Coffee Bluff Marina Property, 250 Ga. App. 212, 213 (1) (550 SE2d 122) (2001). Because we find that the phrase “dead end” contained in Paulding County’s right-of-way deed is ambiguous, we do not reach the issue of whether the road was public before Poe deeded anything to the county.

“Two criteria must be established in order to show that property has been dedicated: (1) the owner’s intention to dedicate the land for public use, and (2) the public’s acceptance of the dedicated property.” (Footnote omitted.) Chandler v. Robinson, 269 Ga. 881, 882 (1) (506 SE2d 121) (1998). Accord MDC Blackshear, LLC v. Littell, 273 Ga. 169, 170 (1) (537 SE2d 356) (2000). The plaintiff has the burden of establishing the boundaries of a public dedication. Cobb County v. Crew, 267 Ga. 525, 528 (1) (481 SE2d 806) (1997).

In Chandler, as in this case, the plaintiffs’ suit arose from the defendants’ denial of permission to use the portion of a road located on their property that provided access between a county road and the plaintiffs’ property. The Court held, in part, that the plaintiffs failed to establish that the road had become a public road by dedication and that no material factual dispute precluded summary judgment in the defendants’ favor. Chandler, 269 Ga. at 881. Here, unlike the situation in Chandler, a genuine issue of material fact exists regarding the extent of Poe’s right-of-way grant to the county.

While Poe testified that it was his understanding that Gum Springs Road dead-ended at the southern end of the disputed tract, the county’s director of transportation testified that the county understood “dead end” to mean the barrier Yancey had established at his property line. Moreover, a person’s testimony about his intent is not conclusive, but “is to be considered with all the facts and circumstances of the case in determining the real intention of the witness.” (Citations omitted.) Hasty v. Wilson, 223 Ga. 739, 750 (7) (158 SE2d 915) (1967). See also Bowen v. Consolidated Mtg. &c. Corp., 115 Ga. App. 874, 876-877 (156 SE2d 168) (1967) (“A party may testify as to his intention. It is evidence to be considered, but the facts — all the facts — are to be considered, to arrive at the truth respecting his real motive.”) (citations and punctuation omitted).

Finally, referring to the phrase “dead end” in Poe’s right-of-way deed, Yancey stated in an affidavit that the road ended at his property line, where he had erected a barrier, and that when Poe executed the right-of-way deed, no obstruction blocked the road from its beginning to Yancey’s property line. Accordingly, we hold that a genuine issue of material fact exists with respect to the meaning of the phrase “dead end” in Poe’s right-of-way deed.

Yancey has also introduced evidence that the public has accepted the dedicated property, as required by Chandler, 269 Ga. at 882, in the form of the letters from the county right-of-way coordinator to Poe. The coordinator stated in the first letter that an obstruction was blocking a county road on which the county was obliged to maintain access, and in the second letter that the right-of-way allowed Yancey access to his land. Therefore, Poe was not entitled to summary judgment on the ground that Yancey failed to establish that the county accepted the dedication. Further, because this question of fact exists, the trial court did not err in denying partial summary judgment to Yancey.

Decided March 22, 2002.

Terence G. Kelly, for appellant.

Greenberg Traurig, Robert E. Spears, Jr., Michael J. King, for appellee.

Accordingly, we reverse the grant of summary judgment to defendant Poe.

Judgment reversed.

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

       Yancey appealed to the Supreme Court of Georgia, which transferred the appeal here based on its conclusion that this case does not involve title to land or equity jurisdiction.


text:
    A01A1642.
    FORD v. THE STATE.
    (563 SE2d 170)
   Blackburn, Chief Judge.

Eric Dewayne Ford appeals his conviction by a jury of felony possession of marijuana with intent to distribute and obstruction of a law enforcement officer. In his sole enumeration of error, Ford maintains that the trial court erred in forcing him to proceed to trial pro se with only the assistance of an attorney who was appointed to sit with him and who knew nothing of the case. For the reasons set forth below, we reverse and remand.

On February 4,1999, Ford and his three co-defendants appeared at an arraignment calendar with other criminal defendants. The district attorney called Ford’s case. Ford was not represented by counsel at that time. The district attorney asked Ford if he understood what the charges were against him, and Ford indicated that he did. Ford was then asked by the district attorney how he wished to plead to the charges, and Ford said, “Not guilty.”

After Ford entered his not guilty plea, the trial court then inquired if the district attorney had explained to the defendants gathered for the arraignment calendar the function and purpose of the public defender’s office. The district attorney indicated that he and the public defender had told those in attendance that the public defender was available to any defendant who did not feel he could afford to hire an attorney.

The trial court then advised all defendants that the public defender would determine whether or not they were entitled to appointed counsel. The trial court indicated that lawyers should be hired immediately and that delays would not be granted if they were not. He then advised all defendants who needed to do so to talk to the public defender at that time.

On arraignment day, February 4, 1999, Ford applied to the public defender for a court-appointed counsel, who denied the request.

On the day of trial, April 19, 1999, Ford appeared before the court without counsel. The trial court made no inquiry into Ford’s indigent status nor his failure to hire counsel. The trial court simply declared that Ford had elected to proceed pro se and that such choice was hazardous as he would be at a disadvantage without counsel.

Ford asked the trial court for a legal counsel to assist him. The trial court appointed an attorney to sit with Ford and assist him. The lawyer advised the court that “I can’t tell you how thrilled I am, Judge.” Following a jury trial, Ford was convicted.

In arguing that the trial court erred in forcing him to proceed to trial pro se, Ford claims that the trial court did not properly determine the question of his.indigent status. We agree. There is simply nothing in the record indicating that the trial court made any inquiry into Ford’s financial status.

The State concedes in its brief that the record is silent as to any finding by the trial court on the issue of Ford’s financial status but contends that it is undisputed that he did not meet the financial qualifications of the public defender’s office. The determination of Ford’s indigent status was made solely by the public defender, without participation by the court. The record is silent as to how this determination was made by the public defender. “From the record before us, therefore, it appears that the trial court improperly ‘delegated . . . (the) nondelegable duty to inquire about the facts of indigence.’ [Cits.]” Raines v. State. See also Martin v. State (“trial court basically delegated to the public defender a nondelegable duty to inquire about the facts of indigence”). While it is not error to have the public defender interview applicants for appointment of counsel, it is the trial court’s responsibility to make a determination of indigence based upon evidence and to establish a record of such finding.

Even assuming that Ford was nonindigent, there is no evidence in the record that Ford voluntarily and knowingly waived his right to counsel. The State suggests that even though the record may not bear witness to a voluntary and knowing waiver on Ford’s part, his failure to actively secure counsel demonstrated that he had waived his right to counsel.

A person charged with a felony in a state court has an unconditional and absolute constitutional right to a lawyer which attaches at the pleading stage of the criminal process and may be waived only by voluntary and knowing action. Callaway v. State. “Waiver will not be lightly presumed, and a trial judge must indulge every reasonable presumption against waiver.” (Punctuation omitted.) Id.

For a nonindigent defendant,

the constitutional right to counsel only entitles him to be defended by counsel of his own selection whenever he is able and willing to employ an attorney and uses reasonable diligence to obtain his services. Since a non-indigent defendant’s right to counsel is predicated upon his own diligence, a failure on his part to retain counsel may constitute a waiver of the right to counsel. Thus, when presented with a non-indigent defendant who has appeared for trial without retained counsel, the trial judge has a duty to delay the proceedings long enough to ascertain whether the defendant has acted with reasonable diligence in obtaining an attorney’s services and whether the absence of an attorney is attributable to reasons beyond the defendant’s control.

(Punctuation omitted; emphasis in original.) Houston v. State.

It is clear that the trial court here failed to comply with Houston. Houston makes clear that, even if the trial court had made a determination that Ford was nonindigent, waiver of the right to counsel could be found only if the trial judge “delay [ed] the proceedings long enough to ascertain whether [Ford] acted with reasonable diligence in obtaining an attorney’s services and whether the absence of an attorney [was] attributable to reasons beyond [his] control.” (Punctuation omitted.) Houston, supra at 704. Here, there is no evidence that the trial court addressed either the indigence or diligence issues. The record does not show that the trial court made any inquiries about Ford’s attempts to secure representation, any difficulties he may have encountered in trying to do so, or whether his failure to secure representation was attributable to reasons beyond his control. We note that this case is clearly distinguishable from those cases in which the defendant has declared his desire to represent himself, as Ford never did so. He was told by the public defender that he could not have appointed counsel. The fact that Ford did not retain counsel as instructed by the trial court, standing alone, is not sufficient to establish a waiver of right to counsel by the defendant. The record does not reflect any inquiry into Ford’s reason for not having hired counsel. The record does not reflect that the trial court inquired into these facts or that there was any basis to determine that Ford had not been diligent in his efforts to obtain private counsel after being informed that a public defender would not be appointed. The trial court merely remarked that Ford apparently had made the choice to go forward without a lawyer. “Under these circumstances, the trial court abused its discretion when it forced defendant to proceed to trial without the assistance of counsel.” (Punctuation omitted.) Id. This case is similar to Houston, in which the trial court also appointed an attorney to sit with the defendant during trial. As this Court held in Houston,

“The benefit of counsel guaranteed by the Georgia Constitution is not satisfied merely because the defendant is represented by counsel on his trial, but his counsel is entitled to a reasonable time after his employment to prepare a defense in order that he may adequately and effectively represent his client. (Cit.)” Lowrance v. State. Here, the attorney was not given a reasonable time to prepare a defense on behalf of Houston. Accordingly, the trial court erred in failing to insure that Houston knowingly and voluntarily waived his right to counsel.

Id. at 705.

The trial court’s abuse of discretion was not cured either by the court’s order that an attorney “sit” with Ford during the trial or by the attorney’s active participation in the trial. Houston, supra. “The trial court’s ruling and the attorney’s conduct amounted to a denial of assistance of counsel.” Id.

The trial court erred in failing to insure that Ford knowingly and voluntarily waived his right to counsel. Houston, supra. Accordingly, his conviction must be reversed. On remand, if Ford remains nonindigent but does not obtain counsel, “the question of whether he should be appointed counsel is a matter within the discretion of the trial court” after a proper inquiry has been made on the record. Mitchell v. State. See also Flanagan v. State.

Decided March 25, 2002.

Walker & Waldrop, Michael S. Waldrop, Trida B. Smith, for appellant.

Richard R. Read, District Attorney, Kirk M. Thomas, Assistant District Attorney, for appellee.

Judgment reversed and remanded.

Pope, P. J., and Mikell, J, concur.

        Raines v. State, 242 Ga. App. 727, 730 (2) (531 SE2d 158) (2000).

        Martin v. State, 240 Ga. App. 246, 248 (523 SE2d 84) (1999).

        Callaway v. State, 197 Ga. App. 606, 607 (398 SE2d 856) (1990).

        Houston v. State, 205 Ga. App. 703, 704 (423 SE2d 431) (1992).

        Lowrance v. State, 183 Ga. App. 421, 422 (1) (359 SE2d 196) (1987).

        Mitchell v. State, 225 Ga. App. 520, 522 (2) (484 SE2d 271) (1997).

        Flanagan v. State, 218 Ga. App. 598, 600 (462 SE2d 469) (1995).