text:
    A00A0977, A00A2501.
    TORRES et al. v. PUTNAM COUNTY (two cases).
    (541 SE2d 133)
   Ellington, Judge.

Putnam County filed suit against Dwight York, Victor Greig, Thomas Chism and other unnamed defendants, seeking compensatory and punitive damages as well as injunctive relief arising out of the defendants’ use of certain real property located in unincorporated Putnam County and allegedly owned by York. The trial court entered an interlocutory injunction which, inter alia, authorized the building inspector to inspect the property. The trial court held Chism, Henry Torres and Claude Turner in contempt of that order for preventing the inspection. In Case No. A00A0977, Torres and Turner appeal the contempt order as provided by OCGA § 5-6-34 (a) (2).

The county then filed a supplemented and amended complaint, adding Torres and Turner as named defendants along with other individuals and an entity called Tama-Re Enterprise. The county alleges that, for zoning purposes, the parcel was divided into two smaller parcels, one zoned for low density residential use and the other zoned for agricultural use. The county alleges the defendants, individually and in various combinations, constructed several buildings on the property and in those buildings operated a variety of commercial enterprises, ranging from entertainment and food service to limousine and taxicab service to stores selling clothes, jewelry, books and crafts. The county alleges that the buildings, as constructed and operated, and a dump on the property violated the applicable zoning ordinance and building and safety code. The county sought an injunction prohibiting the nonconforming use of the property, including any future construction. The county also sought “compensatory and punitive damages” against all defendants, jointly and severally.

Torres and Turner moved to dismiss the amended complaint on the basis that a county may not sue for tort damages. The trial court denied the motion to dismiss. Following our grant of their application for interlocutory appeal, Torres and Turner appeal in Case No. A00A2501, contending that the county’s complaint failed to state a claim and particularly that the county may not sue its citizens for tort damages or for punitive damages.

We consolidate Case Nos. A00A0977 and A00A2501 because the appeals arise from the same proceeding. For the reasons which follow, we affirm the contempt citation and reverse the denial of the motion to dismiss.

Case No. A00A0977

On March 10, 1999, the trial court granted a temporary restraining order enjoining the individual defendants and Tama-Re Enterprise from erecting any structure on the property or using the property other than for residential or agricultural purposes. After an evidentiary show cause hearing, the trial court entered an interlocutory order on April 13,1999, continuing the injunction and modifying the terms to allow any construction project on the property for which the owner had a building permit. The order directed the county to issue any requested permit if the permit was complete and the requested construction conformed to the zoning ordinance. Further, the order authorized the building inspector to inspect the property and improvements during daylight hours for compliance with the zoning ordinance and provided: “[a]t his sole discretion, the building inspector may elect to be accompanied by the sheriff.”

When the building inspector, accompanied by the sheriff and a deputy sheriff, attempted an inspection on April 20,1999, Torres and Turner, acting as security guards on the property, denied the inspector access to the property. The county filed a motion for contempt against Torres, Turner and others. After a hearing, the court granted the motion as to Torres, Turner and Chism, ordered the men held in jail until the inspection was completed, and ordered them to pay $1,000 in attorney fees. According to the county, the inspection was completed, and the men were promptly released from jail; the appellants do not dispute this.

The defenses to both civil and criminal contempt are that the order was not sufficiently definite and certain, was not violated, or that the violation was not wilful (e.g., inability to pay or comply). If there is any evidence in the record to support a trial judge’s determination that a party either has or has not wilfully disobeyed the trial court’s order, the decision of the trial court will be affirmed on appeal. The question of whether a contempt has occurred is for the trial court, and its determination will be overturned only if there has been a gross abuse of discretion.

(Citations and punctuation omitted.) G.I.R. Systems v. Lance, 228 Ga. App. 329, 331 (4) (491 SE2d 530) (1997). On appeal, Torres and Turner contend the order was not sufficiently definite and certain in that “[i]t is not clear and was not clear at the time that the word ‘sheriff’ included ‘deputy sheriff.’ ” This argument has no merit. It is commonly understood that a sheriff may appoint deputies to act as his agents and to assist in the performance of his duties. See OCGA §§ 15-16-10; 15-16-23; Veit v. State, 182 Ga. App. 753, 756 (2) (357 SE2d 113) (1987).

Furthermore, a review of the record, and particularly a videotape of the attempted inspection on April 20,1999, persuades us that the contemnors’ denial of access to the property did not result from this supposed lack of specificity in the order. We find no abuse of discretion in the trial court’s finding that Torres and Turner knowingly violated the court’s April 13,1999 order by preventing the inspection. Anderson v. Dowd, 268 Ga. 146, 148 (3) (485 SE2d 764) (1997).

Besides challenging the trial court’s factual findings, Torres and Turner also contend the April 13, 1999 order was “transparently invalid” and therefore could not form the basis for a contempt action. Specifically, they contend the order directly contravened Camara v. Municipal Court, 387 U. S. 523 (87 SC 1727, 18 LE2d 930) (1967). In Camara, the United States Supreme Court held that a San Francisco housing ordinance which allowed building inspectors to enter any building to perform any of their duties violated the Fourth Amendment prohibition of warrantless searches. The Court found “[t]he practical effect of this system is tó leave the occupant subject to the discretion of the official in the field.” Id. at 532. Camara clearly has no application to this case where the authorization to inspect a specific property derived from an interlocutory injunction entered after a hearing, not from a generally applicable ordinance. Here, the landowner was not left “subject to the discretion” of the building inspector but, in having an opportunity to present evidence and to be heard, had even more protection than if the warrant procedure had been followed. Cf. Yingsum Au v. State, 258 Ga. 419 (369 SE2d 905) (1988) (holding unconstitutional a city ordinance which permitted discretionary warrantless searches of businesses after closing hours).

Case No. A00A2501

Torres and Turner contend the trial court erred in denying their motion to dismiss the county’s complaint on the basis that there is no authority for a county to sue its citizens in tort.

The county contends OCGA § 36-1-3 provides authority for it to sue in tort as follows: “[e]very county is a body corporate, with power to sue or be sued in any court.” At the hearing on the motion to dismiss, the county conceded that it could not sue for personal injury such as defamation but argued that, like any other property owner, it has the authority to sue for tortious injury to its personal or real property. For example, the county contends it could sue a negligent driver for damage to a county vehicle or sue an arsonist for intentional damage to county-owned real property. But in this case, the county has not alleged damage to any county-owned vehicle, building or other specific piece of property. As summarized by the county, the complaint as amended alleged

that many persons have banded together to commit unlawful acts. These acts include occupation of buildings without obtaining inspections or certificates of occupancy, zoning violations, building code, safety, and fire violations, operation of businesses in a residential zone, and the like.

It seeks compensatory damages for all the money the defendants’ actions allegedly caused it to spend in “[s] ending the Building Inspector .. . [and] the Sheriff out” to the property.

Georgia law defines a tort as follows: “A tort is the unlawful violation of a private legal right other than a mere breach of contract, express or implied. A tort may also be the violation of a public duty if, as a result of the violation, some special damage accrues to the individual.” OCGA § 51-1-1. In this case, the county alleges that the appellants have injured the county’s property only by causing the county to spend money enforcing its laws and protecting its citizens. We find no authority for the position that such an expenditure of public funds in performing a public duty required by law implicates any private right. See State Hwy. &c. Comm. v. Cobb, 215 N.C. 556 (2 SE2d 565) (1939) (state had no cause of action against an escaped convict for the expenses of recapturing him). The complaint as amended failed to state a cause of action in tort.

We specifically reject the county’s argument that “our Supreme Court has clearly held that a county can recover money damages when it sues to enforce its zoning ordinance,” citing Smith v. Gwinnett County, 268 Ga. 179, 181 (3) (486 SE2d 151) (1997) (“Smith F), aff’d, 270 Ga. 424 (510 SE2d 525) (1999), aff’d, 271 Ga. 160 (516 SE2d 530) (1999). The Smith decisions do not stand for that proposition. In Smith I, the landowners entered a consent order in which they agreed to repair a dam and restore a lake disturbed by their construction and then wilfully violated the consent order. 268 Ga. at 180. The Supreme Court affirmed the order of the trial court which “directed the County to restore the lake to its original condition, repair the dam and buffers, and assess any and all reasonable costs against the defendants.” (Punctuation omitted.) Id. In this case, the trial court has not ordered the county to take action the enjoined parties refused to take, with expenses assessed against those parties. Therefore, the Smith decisions provide no authority for the county’s pursuit of tort damages.

Decided October 25, 2000.

Ralph S. Goldberg, for appellants.

Adams & Ford, Dorothy J. Adams, Francis N. Ford, for appellee.

Finally, because the county has no legal basis to recover compensatory tort damages, it follows that it may not recover punitive damages. Southern Gen. Ins. Co. v. Holt, 262 Ga. 267, 270 (2) (416 SE2d 274) (1992). To the extent the county’s amended complaint seeks recovery in tort, the trial court erred in denying the motion of Torres and Turner to dismiss the complaint.

We do not express an opinion as to whether the county is entitled to a permanent injunction or whether the complaint stated a cause of action under the Georgia Racketeer Influenced & Corrupt Organizations Act, OCGA § 16-14-1 et seq., as these issues were not properly before this court on appeal.

Judgment affirmed in Case No. A00A0977.

Judgment reversed in Case No. A00A2501.

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

       It is not clear from the record whether York continues to own the property.

       Chism did not appeal the contempt order. Torres and Turner directed their first appeal to the Supreme Court of Georgia. Finding that the appeal raised neither an equity issue nor a constitutional question, the Supreme Court of Georgia transferred the case to the Court of Appeals.

        Cox Enterprises v. Carroll City/County Hosp. Auth., 247 Ga. 39, 46 (273 SE2d 841) (1981) (“a governmental entity is absolutely barred from prosecuting a cause of action for libel”).

       See also City of Flagstaff v. Atchison &c. R. Co., 719 F2d 322, 323 (9th Cir. 1983) (city had no cause of action for the expenses of police and fire services against the railroad which caused a chemical spill); County of San Luis Obispo v. Abalone Alliance, 178 Cal. App.3d 848, 858-862 (1986) (county had no cause of action against protesters for costs incurred in its exercise of police power during a power plant blockade); City of Pittsburgh v. Equitable Gas Co., 98 Pa. Commw. 523 (512 A2d 83, 84) (1986) (city had no cause of action for the costs of police and other relief measures against the utility company whose natural gas lines exploded).


source: Caselaw Access Project

author: Miller, Judge.

license: Public Domain

text:
    A00A1607.
    BRYAN v. MBC PARTNERS, L.P.
    (541 SE2d 124)
   Miller, Judge.

Plaintiff MBC Partners, L.P. petitioned the superior court to enjoin Skyler D. Bryan from maintaining on his residential property a sign alleged to violate the terms of restrictive covenants contained in a recorded Declaration of Covenants, Conditions and Restrictions, until such time as Bryan obtained the written permission of the Architectural Control Committee (ACC) of the homeowners’ association. A temporary restraining order (TRO) entered with notice immediately enjoined Bryan from placing any signs on his property and further ordered the removal of any existing signs.

Bryan admitted that the Declaration of Covenants dated December 5,1995, was recorded, but denied that his property was subject to them or that he had violated them by failing to get prior written permission, contending there “was no Architectural Control Committee until after the filing of this lawsuit.”

The Declaration provided: “No Structure shall be commenced, erected, placed, moved onto or permitted to remain on any Lot. . .” unless its plans and specifications were first submitted to and approved by the ACC. The definition of “Structure” includes a “sign.” More specifically:

No signs whatsoever (including but not limited to commercial and similar signs) shall, without the ACC’s prior written approval of plans and specifications therefor, be installed ... or maintained on any Lot, or on any portion of a Structure visible from the exterior,

except for directional signs, “For Sale” signs, and other marketing activities deemed desirable by MBC. The Declaration’s enforcement rights expressly include the right of abatement.

Dissatisfied with the failure of his builder to complete certain repairs, Bryan hung a sign from the front of his house facing the subdivision sales office. The sign was approximately seven feet by three feet and stated in white handwritten letters on a black background: “Before You Buy A Home In Here PLEASE See US.” Bryan conceded he had not requested or received any permission from the ACC to put up any such sign. The sign stayed up for a week, before Bryan removed it in compliance with the TRO. During that week, Bryan noticed “seven or eight signs on houses and lots that said ‘under contract.’ ” The first objection to Bryan’s sign was a letter he received from the ACC hand-delivered on the day this action was commenced, after the hearing on the TRO. Bryan himself has never complained to the ACC or anyone from the homeowners’ association about the commercial signs he noticed in the neighborhood.

After the evidentiary hearing, the superior court granted an interlocutory injunction, concluding that the sign violated the covenants applicable to Bryan’s property and that Bryan did not seek approval of the extant ACC’s representative, Martin. The superior court further noted “ample evidence of [the ACC’s] failure to enforce the covenants as to numerous other signs of various categories,” but concluded that seasonal decorations and inherently temporary signs (yard sale or lost dog) do not fall within the proscription against signs and that while service provider signs and other matters of a clearly commercial nature violated the applicable restriction, nevertheless the ACC’s failure to enforce the restriction against these signs did not waive its right to enforce the restriction against Bryan’s sign. The superior court further ruled that enforcement of the sign restriction is “not a violation of free speech rights.”

Bryan’s direct appeal to the Supreme Court of Georgia was transferred to the Court of Appeals. In three related enumerations of error, Bryan contends the trial court abused its discretion in enforcing the restrictive covenant against signs (1) because MBC waived the right to enforcement; (2) because MBC failed to show irreparable harm; and (3) because the contractual provision violates the public policy of Georgia regarding freedom of speech. We affirm.

1. In our view, the failure of the ACC to object to certain commercial signs erected by other residents, builders, or tradesmen, which signs are arguably in violation of the same restrictive covenant invoked against Bryan, does not demand a finding of waiver or estoppel. There is evidence the ACC objected to Bryan’s sign and asked him in writing to remove it. Conversely, there is no evidence that any lot owner objected to the commercial signs Bryan points to as establishing a waiver or estoppel. Since there was no prior written approval and the sign was disapproved by the ACC within a week of its erection, the superior court did not abuse its discretion in rejecting Bryan’s claim of waiver or estoppel.

2. Injunctive relief is authorized to prohibit threatened violations of restrictive covenants.

A trial court may issue an interlocutory injunction to maintain the status quo until the final hearing if, by balancing the relative equities of the parties, it would appear that the equities favor the party seeking the injunction. Thus, a demonstration of irreparable injury is not an absolute prerequisite to interlocutory injunctive relief.

Bryan is bound by the Declaration in which he promised to abide by its aesthetic restrictions. Since the Declaration expressly provided for the remedy of abatement to enforce the covenants, there was no need to demonstrate irreparable harm, after balancing the equities of the parties.

3. The third enumeration contends that judicial enforcement of this restrictive covenant violates the public policy of Georgia with respect to restraints on free speech. We disagree.

It is well settled that the grantor of real property may restrict the use of it by restrictive covenants contained in or incorporated into the deed. By accepting a deed, the grantee is bound by the covenants contained therein. The limitation on the validity of restrictive covenants is that they must be clearly established and they cannot be contrary to public policy.

Decided October 25, 2000

For purposes of this appeal, we assume that Bryan’s act of hanging a sign from his residence indicating he was an owner dissatisfied with his builder and inviting prospective owners to engage in discussions was a form of communication entitled to constitutional protection under the First Amendment of the U. S. Constitution and Art. I, Sec. I, Par. V of the 1983 Georgia Constitution. And generally an injunction will not be granted to restrain the torts of slander or libel, however illegal and outrageous the communications. Nevertheless, a person may waive or renounce what the law has established in his favor when he does not thereby injure others or affect the public interest. This ancient rule applies to all the private relations in which persons may place themselves toward each other and includes the waiver of constitutional rights.

Thus, it is the paramount public policy of this State that courts will not lightly interfere with the freedom of parties to contract on any subject matter, on any terms, unless prohibited by statute or public policy, and injury to the public interest clearly appears. In our view, Bryan validly contracted to abide by the restrictive covenants mutually applicable to all lot owners, including a valid proscription on all signs whatsoever except as approved by the ACC. Bryan “was at liberty to waive a constitutional as well as a legal right in a matter of this sort.” The superior court did not abuse its discretion in entering the interlocutory injunction to restrain Bryan’s continuing violation of the restrictive covenants by hanging this unapproved noncommercial sign from his residence.

Judgment affirmed.

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

Thompson & Wick, Robert T. Thompson, Jr., Melinda A. Garlington, Gordon J. Rose, Stephen G. Weizenecker, for appellant.

Bray & Johnson, H. Michael Bray, for appellee.

        Turner Advertising Co. v. Garcia, 251 Ga. 46, 48-49 (2) (302 SE2d 547) (1983) (waiver). Accord Antill v. Sigman, 240 Ga. 511, 512-513 (3) (241 SE2d 254) (1978) (estoppel).

       See, e.g., Golston v. Garigan, 245 Ga. 450, 451-452 (3) (265 SE2d 590) (1980).

       (Citations and punctuation omitted.) Parker v. Clary Lakes Recreation Assn., 272 Ga. 44, 45 (526 SE2d 838) (2000).

        Smith v. Pindar Real Estate Co., 187 Ga. 229, 234 (1) (200 SE 131) (1938). See generally OCGA § 44-5-60.

       OCGA § 44-5-39.

        Winslette v. Keeler, 220 Ga. 100, 101 (1) (137 SE2d 288) (1964). See also OCGA § 44-5-60 (d) (3).

        Pittman v. Cohn Communities, 240 Ga. 106, 108-109 (239 SE2d 526) (1977).

        Singer Mfg. Co. v. Domestic Sewing Machine Co., 49 Ga. 70, 73-74 (1873). Accord Pittman v. Cohn Communities, supra, 240 Ga. at 109.

       OCGA § 1-3-7.

        McCoy v. H. N. R. Investment Group, 210 Ga. App. 645, 646 (2) (437 SE2d 355) (1993).

        Senters v. Wright & Lopez, Inc., 220 Ga. 611, 614 (140 SE2d 904) (1965).

        Kurc v. Herren, 196 Ga. App. 331, 332 (1) (396 SE2d 62) (1990). We decline Bryan’s invitation to hold that judicial enforcement of this race-neutral covenant is “State” action or deprivation invoking the Equal Protection Clause of the Fourteenth Amendment. Compare Shelley v. Kraemer, 334 U. S. 1 (68 SC 836, 92 LE 1161) (1948).

        Humphries v. McWhorter & Brightwell, 25 Ga. 37, 39 (1858).

       We express no opinion whether the ACC’s refusal to permit a sign containing truthful information after a proper application would be unreasonable, arbitrary, and capricious under Winslette v. Keeler, supra, 220 Ga. at 103 (2).


text:
    A00A1924.
    ROPER v. THE STATE.
    (541 SE2d 130)
   Miller, Judge.

With the assistance of counsel, Jacob Roper pled nolo contendere to a single-count indictment charging him with aggravated assault by cutting the neck of Ron Graham with a knife and was granted first offender treatment. This judgment expressly provides that “no judgment of guilt be imposed at this time but that further proceedings are deferred and [that Roper] is . . . sentenced to confinement for a period of 12 Years to Serve. . . .” New counsel filed a timely notice of appeal from the ostensible “judgment of conviction,” enumerating the failure of the trial court to make a determination on the record that the plea was voluntary and accurate as required by Uniform Superior Court Rules 33.7 and 33.9 respectively. We affirm.

Two hearings were conducted regarding Roper’s plea. On March 24, 1999, Roper’s counsel stipulated that the evidence would be sufficient beyond a reasonable doubt to establish that Roper cut Graham with a knife as alleged in the indictment. After investigating the case and discussing possible defenses with Roper, defense counsel was able to negotiate the State’s nonobjection to Roper’s nolo contendere plea and the State’s nonobjection to first offender treatment for such a violent crime, but with no negotiated sentence except that the State’s sentencing recommendation would not exceed 12 years.

Roper was sworn, and the trial court personally examined him, determining that: Roper was the party charged in the indictment; Roper had never been confined in a mental hospital; he “can’t read too good,” but can write some; and with the assistance of counsel, Roper had truthfully completed and signed the plea sheet while not under the influence of alcohol, drugs, or any medication. Roper affirmed he understood first offender status, including that if he violated some law during the sentence period, first offender status could be revoked and a longer sentence imposed. Specifically, the trial judge twice informed Roper that aggravated assault carries a penalty of one to twenty years, and Roper confirmed he understood this. The court informed Roper that as far as the court was concerned, unless some new information came to light, he would be treated as a first offender. The trial court then personally explained to Roper the rights he would waive by entering this plea, and Roper confirmed he understood those rights. The court further restated the terms, both negotiated and open-ended, of the plea arrangement and confirmed that the nonnegotiated sentence period would not exceed 12 years, at which point Roper entered his plea of nolo contendere.

At a subsequent hearing for the imposition of sentence, the victim, Graham, testified that Roper cut him in the neck with a knife after accusing Graham of informing their mutual employer that Roper was smoking marijuana on the job. Roper chased Graham “hollering I’ll kill you, I’ll cut your head off.” Graham’s jugular vein required stitches. Graham had done nothing to provoke the fight and denied any racial animus. Graham’s face is scarred and remains somewhat numb. Roper took the stand and testified that he thought he was provoked but understood that he nevertheless was not justified in cutting Graham.

1. The provisions of USCR 33 are mandatory in this State. USCR 33.7 admonishes the trial judge not to accept a plea of guilty or nolo contendere “without first determining, on the record, that the plea is voluntary.” In so doing, if the prosecutor has agreed to seek charge or sentencing leniency which must be approved by the judge, “the judge must advise the defendant personally that the recommendations of the prosecuting attorney are not binding on the judge.” And USCR 33.9 directs that, despite acceptance of a guilty plea, no judgment should be entered thereon “without such inquiry on the record as may satisfy the judge that there is a factual basis for the plea.”

But ritualistic compliance with all the requirements of such rules is not necessary where the record demonstrates that the core considerations, i.e., the substantive elements of Boykin v. Alabama concerning the defendant’s guilty or nolo contendere plea, are met. Consequently, a proven violation of USCR 33 must be tested for harm to prevent a manifest injustice.

Decided October 25, 2000.

Jack B. Williamson, Jr., for appellant.

R. Joseph Martin III, District Attorney, Tony A. May, Barclay Black, Assistant District Attorneys, for appellee.

(a) Roper first argues the trial court never advised him that the recommendations of the prosecutor are not binding on the court. In our view, however, this advice is established by the fact that the judge informed Roper that, while his sentence was not agreed to and had not been decided, it nevertheless would not exceed the greatest period requested by the State.

(b) The fact that Roper “can’t read too good” does not establish that his negotiated nolo contendere plea and first offender treatment entered into with the assistance of counsel were involuntary since Roper orally affirmed that he understood the nature of the charge, the possible 20-year sentence, and the conditions of probation as a first offender.

(c) Although the trial judge never stated for the record its conclusion that Roper’s nolo contendere plea was voluntarily and intelligently made with an understanding of the charges and possible sentence, that determination is implicit in the court’s acceptance of his plea after personal examination of Roper and counsel in open court and is further manifest on the records of the two plea hearings. The trial court did not err in accepting Roper’s nolo contendere plea.

2. The factual basis for Roper’s plea was established by the stipulation to the sufficiency of the evidence to support the allegations of the indictment entered in open court, and by the testimony of the victim and by Roper as well, at the sentencing hearing. The trial court met the conditions of USCR 33.9.

Judgment affirmed.

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

       Although Roper subsequently moved pro se to withdraw his plea, there is no ruling of record on this motion and no enumeration of error predicated thereon in the brief submitted by counsel. See Staples v. State, 209 Ga. App. 802, 806-807 (10) (434 SE2d 757) (1993) (non-lawyer has no constitutional right to simultaneous representation by counsel and self-representation). Accord Maddox v. State, 218 Ga. App. 320, 321 (1) (461 SE2d 286) (1995) (pro se filings of inmate represented by counsel given no legal effect whatsoever).

        State v. Evans, 265 Ga. 332, 334 (1) (454 SE2d 468) (1995).

       USCR 33.7.

        Goodman v. Davis, 249 Ga. 11, 14-15, fn. 2 (287 SE2d 26) (1982).

       395 U. S. 238 (89 SC 1709, 23 LE2d 274) (1969).

        State v. Germany, 245 Ga. 326, 328 (265 SE2d 13) (1980). Accord McLendon v. State, 256 Ga. 480, 481 (2) (350 SE2d 235) (1986) (judgments of conviction for murder and aggravated battery entered on guilty pleas affirmed, although trial court did not specifically address each issue itemized in USCR 33.7, 33.8, and 33.9, where the voluntariness of those guilty pleas was clearly supported by the record).

        State v. Evans, supra, 265 Ga. at 335 (3), fn. 2 and accompanying text.

       See Brown v. State, 216 Ga. App. 312, 313 (1) (454 SE2d 596) (1995) (counsel presumed to fulfill professional role during entry of guilty plea).

        Huff v. Barnett, 230 Ga. 446 (197 SE2d 345) (1973).

       Cf. Paino v. State, 209 Ga. App. 87 (432 SE2d 599) (1993).

        Brown v. State, supra, 216 Ga. App. at 315 (2). Accord State v. Evans, supra, 265 Ga. at 334-335 (2).


author: Johnson, Chief Judge.

text:
    A00A1996.
    APPLING v. THE STATE.
    (541 SE2d 129)
   Johnson, Chief Judge.

Kevin Appling was convicted of simple battery and making harassing telephone calls. He appeals, arguing that the court erred in admitting evidence of a prior difficulty between him and the victim because the probative value of the evidence was outweighed by its unfair prejudice. The argument is without merit, and we therefore affirm the convictions.

At trial, the state introduced evidence that on December 27, 1999, Appling had been drinking alcohol when he got into an argument with his girlfriend, Wanda Tangyuk, at her apartment. During the argument, he chased Tangyuk around the apartment and ultimately grabbed her and threw her into a bathroom door. Tangyuk suffered abrasions and bruises to her wrist and hand. Appling left the apartment. Tangyuk called the police, and an officer came to her apartment. While the officer was there, Appling telephoned Tangyuk repeatedly, even after the officer instructed him to stop calling.

The state also introduced evidence that four months earlier, on August 21, 1999, Appling was drinking alcohol and got into an argument with Tangyuk in her car. He grabbed Tangyuk by the hair and by the neck, pulled her out of the car, ripped her shirt, punched her on the forehead, knocked her to the ground, choked her and threatened to kill her. Tangyuk had injuries to her forehead, neck, arms, elbows and knees from the assault.

In support of his argument that the court erred in allowing this evidence of the prior incident, Appling mistakenly relies on cases involving similar transactions, rather than cases involving prior difficulties between the defendant and the victim.

Unlike similar transactions, prior difficulties between the parties are not independent acts or occurrences, but are connected acts or occurrences arising from the relationship between the same people involved in the prosecution and are related and connected by such nexus. Evidence of a defendant’s prior act toward the same victim, whether an assault, a quarrel, or a threat, is admissible as evidence of the relationship between the victim and the defendant and may show the defendant’s motive, intent, and bent of mind in committing the act against the victim which results in the charges for which the defendant is being prosecuted.

Decided October 25, 2000.

Tyrone M. Hodnett II, for appellant.

Gerald N. Blaney, Jr., Solicitor, Rosanna M. Szabo, Julie B. Prokopovich, Assistant Solicitors, for appellee.

Here, the trial court admitted evidence of Appling’s August 1999 assault on Tangyuk as a prior difficulty between the parties, not as a similar transaction. The probative value of such evidence was not, as Appling suggests, outweighed by any unfair prejudice. Rather, such evidence was properly admitted in order to show the parties’ relationship and to show Appling’s motive, intent and bent of mind. Appling has shown no basis for reversing the trial court’s evidentiary ruling or his convictions.

Judgment affirmed.

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

       See Williams v. State, 261 Ga. 640 (409 SE2d 649) (1991); Smith v. State, 232 Ga. App. 290 (501 SE2d 523) (1998).

       (Citations and punctuation omitted.) Hill v. State, 243 Ga. App. 124, 125-126 (2) (532 SE2d 491) (2000).

       See Wall v. State, 269 Ga. 506, 507-509 (2) (500 SE2d 904) (1998); Temple v. State, 238 Ga. App. 146, 147-148 (2) (517 SE2d 850) (1999).


author: Blackburn, Presiding Judge.

text:
    A00A1638.
    SWEEDER v. THE STATE.
    (541 SE2d 414)
   Blackburn, Presiding Judge.

Following a jury trial, John Sweeder appeals his conviction for three counts of burglary, contending: (1) the evidence was insufficient to support the verdict; (2) the trial court improperly admitted evidence of similar transactions; (3) the trial court failed to dismiss a biased juror; (4) the trial court improperly denied a motion for mistrial based on the State’s failure to comply with reciprocal discovery requirements; and (5) the trial court improperly denied a motion for mistrial based on the testimony of a State witness which related to Sweeder’s character. For the reasons set forth below, we affirm.

1. Sweeder argues that the evidence was insufficient to support the verdict against him.

On appeal from a criminal conviction, the evidence must be viewed in the light most favorable to the verdict, and the appellant no longer enjoys the presumption of innocence; moreover, an appellate court does not weigh the evidence or determine witness credibility but only determines whether the evidence is sufficient under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). Howard v. State, 261 Ga. 251, 252 (403 SE2d 204) (1991); King v. State, 213 Ga. App. 268, 269 (444 SE2d 381) (1994). Conflicts in the testimony of the witnesses, including the State’s witnesses, are a matter of credibility for the jury to resolve. As long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State’s case, the jury’s verdict will be upheld. Searcy v. State, 236 Ga. 789, 790 (225 SE2d 311) (1976). Grier v. State, 218 Ga. App. 637, 638 (1) (463 SE2d 130) (1995).

(Punctuation omitted.) Hagood v. State.

Viewing the evidence in this light, the record shows that, on December 14, 1995, the home of James and Martha Shields was burglarized. The robber broke into the home through a back window, ransacked the interior, and stole numerous items, including jewelry and Christmas gifts. During the burglary, the robber broke a glass container full of coins and cut himself, leaving drops of blood on the floor and a bloody rag in the sink. A diamond ring taken in the burglary was later found on Sweeder and identified by James Shields. In addition, footprints discovered outside the Shieldses’ home matched tennis shoes worn by Sweeder.

On January 4, 1995, the home of Ernest Wood III was also burglarized. Again, the robber broke into a window in the rear of the house, and he stole money and some personal items. One of the items taken from the home was a Georgia Bulldogs bag which contained seashells from a prior vacation taken by Wood and his family. Following the burglary, a man in a beige truck was seen placing this bag, which still contained the seashells, in a public dumpster. The witness to this incident reported that the tag number of the truck was SF 4805, which matched the tag number of the truck which Sweeder was driving that day. A Playboy magazine taken from the Wood residence was also found in Sweeder’s truck. In addition, Kenneth Hilburn, an acquaintance of Sweeder’s, testified that, while both of them were in jail, Sweeder admitted to him that he had robbed the Woods’ home.

The home of Jimmy and Diane Saunders was also burglarized on January 4, 1995. Shortly after discovering the theft, Mrs. Saunders saw two young white males coming out of the woods near her home. One was carrying items in a pink pillowcase in one hand and a strongbox taken from her home in the other. Mr. Saunders later observed a brownish-beige Toyota truck parked near his residence. Footprints matching the tennis shoes worn by Sweeder were found in the Saunderses’ yard.

Also on January 4, 1995, Sweeder and his compatriot, Adam Sindell, visited Cory Hancock at his place of business. Sweeder was driving his stepfather’s truck. Hancock, who had previously burglarized homes with Sweeder, noticed a pair of rubber kitchen gloves in the truck. Hancock testified that they were the same type of gloves Sweeder had used to commit prior burglaries.

Sindell testified that, on January 4,1995, Sweeder visited him at his home. When Sweeder got there, he showed Sindell a cut on his hand, explained that he had cut himself while burglarizing a house earlier in the day, and asked whether the bloodstains left behind could be traced back to him. Sindell confirmed that he and Sweeder then went to visit Hancock, and, on the way there, Sweeder stopped at a dumpster and asked Sindell to throw the Georgia Bulldogs bag in the back of his truck into the dumpster. Finally, Sindell testified that he assisted Sweeder in robbing the Saunderses’ home later that day.

Sweeder was arrested for the burglaries on January 6, 1995. At the time of his arrest, he was wearing several pieces of jewelry stolen from the Saunderses’ home.

Taken as a whole, the evidence was sufficient to support Sweeder’s conviction.

2. Sweeder contends that the trial court erred in admitting similar transaction evidence of five prior burglaries to which he pled guilty. We disagree.

Before evidence of an independent offense or act may be admitted into evidence, the State is required to: (1) demonstrate that it seeks to introduce the similar transaction for an appropriate purpose, such as illustrating the defendant’s identity, intent, course of conduct, or bent of mind; (2) show sufficient evidence to establish that the accused committed the independent offense or act; and (3) demonstrate a sufficient connection or similarity between the independent offense or act and the crime charged so that proof of the former tends to prove the latter. Williams v. State.

The law[, however,] does not require that a similar transaction crime be identical to the crime charged. There can be a substantial variation of circumstances where there exists a logical connection between crimes which are essentially dissimilar. The issue of admissibility of extrinsic transactions has never been one of mere similarity. It is, rather, relevance to the issues in the trial of the case. The State may only have the burden of showing a logical connection between crimes which are essentially dissimilar.

(Punctuation omitted.) Maxey v. State.

In this case, the similar transaction evidence meets the first prong of the Williams test because it was introduced to show identity, course of conduct, and bent of mind. Second, the similar transactions were based on guilty pleas, and the certified copies of the convictions were admitted into evidence. Therefore, there was sufficient proof that Sweeder committed the acts in question, and, on appeal, Sweeder admits to committing these prior acts. Third, through the testimony of multiple witnesses, the State showed a sufficient connection between the similar transaction evidence and the crimes for which Sweeder was being tried. All of the burglaries were of residential homes in secluded areas. All were done during the daytime, included forced entry into the rear of the home, and involved the theft of similar articles.

3. Sweeder contends that the trial court erred by denying his motion to dismiss an impaneled juror who witnessed him in handcuffs and shackles outside the courthouse.

The record shows that Jorge Mangual, a juror, saw Sweeder being led to a police car waiting to transport him away from the courthouse. Sweeder was wearing handcuffs and shackles at the time. Following the incident, Mangual was questioned regarding the impact of what he had witnessed. He stated that the incident would have no bearing at all on his deliberations and that he would judge Sweeder’s guilt based solely on the evidence presented to him. The trial court thereafter instructed Mangual not to discuss the incident with any of the other jurors.

OCGA § 15-12-172 provides:

If at any time, whether before or after final submission of the case to the jury, a juror dies, becomes ill, upon other good cause shown to the court is found to be unable to perform his duty, or is discharged for other legal cause, the first alternate juror shall take the place of the first juror becoming incapacitated.

Legal cause arises when the court determines, in its sound discretion, that the juror holds an opinion so fixed and definite that he or she cannot lay it aside and decide the case based on the evidence presented and the court’s charge. Kirkland v. State.

In this case, Mangual testified that his observation of Sweeder in handcuffs and shackles would not affect him. Therefore, the trial court did not abuse its discretion in refusing to dismiss him as a juror. Hardy v. State.

4. Sweeder contends that the trial court erred by denying his motion for a mistrial based on the State’s failure to comply with the discovery requirements of OCGA § 17-16-7. Specifically, Sweeder argues that the State failed to give him notice that its witness, who saw Sindell discarding the Georgia Bulldogs bag in a dumpster, had provided the police with an oral statement identifying the tag number of Sweeder’s truck. Although the State had provided Sweeder with a summary of this witness’ testimony, the information concerning the tag number was omitted.

Pretermitting the efficacy of Sweeder’s argument on this point, even if error exists, it is not reversible error. In light of the overwhelming evidence against Sweeder, it is highly probable that any error, assuming it existed, did not contribute to the jury’s verdict in this case. Marshall v. State. Moreover, other witnesses, including Sindell and Sweeder’s stepfather, testified that Sweeder was driving the truck on the day in question.

5. Finally, Sweeder contends that the trial court erred by denying his motion for a mistrial after a State witness placed his character into evidence. Specifically, Sweeder contends that Hilburn, while being cross-examined by him, improperly testified that Sweeder was in jail with him when he confessed the burglary of the Woods’ home.

Following this testimony, the trial court denied Sweeder’s motion for mistrial and instructed the jury to disregard the comment that Sweeder was in jail at the time this confession occurred.

[E]ven if the testimony were improper, the trial court did not err in denying the motion for mistrial and giving curative instructions. Whether to grant a mistrial based on improper character evidence is within the discretion of the trial judge. In reviewing the trial court’s decision, an appellate court may consider the nature of the statement, the other evidence in the case, and the court’s and counsel’s action in dealing with the impropriety. ... In light of the overwhelming nature and sheer volume of the evidence against [Sweeder], it is extremely doubtful that a single reference to [Sweeder’s incarceration] would have materially influenced the jury’s decision whether to acquit or convict. Accordingly, we cannot say that the trial judge’s decision to deny a mistrial and instead issue curative instructions was an abuse of discretion.

Decided October 26, 2000.

Jeffrey L. Grube, for appellant.

Kelly R. Burke, District Attorney, Amy E. Lambert, Assistant District Attorney, for appellee.

(Punctuation omitted.) Gibson v. State.

Moreover, evidence of Sweeder’s incarceration was admitted both before and after Hilburn’s testimony. In his opening argument, Sweeder’s counsel indicated that Hilburn was in jail when he spoke to Sweeder. In addition, following Hilburn’s testimony, Sindell testified that Sweeder had also confessed to him when they were both incarcerated, and Sweeder made no objection to this evidence. Accordingly, this enumeration is meritless.

Judgment affirmed.

Eldridge and Barnes, JJ, concur.

        Hagood v. State, 228 Ga. App. 693, 694 (2) (492 SE2d 606) (1997).

       The truck was owned by Sweeder’s stepfather, Chet Barkoff, who testified that he let Sweeder borrow the vehicle on January 4, 1995. On that same day, Barkoff consented to a search of the truck.

        Williams v. State, 261 Ga. 640 (409 SE2d 649) (1991).

        Maxey v. State, 239 Ga. App. 638, 640-641 (3) (521 SE2d 673) (1999).

        Kirkland v. State, 271 Ga. 217, 219 (2) (518 SE2d 687) (1999).

        Hardy v. State, 240 Ga. App. 115, 118 (4) (d) (522 SE2d 704) (1999).

       OCGA § 17-16-7 provides, in relevant part, that “the prosecution . . . shall produce for the opposing party any statement of any witness that is in the possession, custody, or control of the [S]tate or prosecution . . . that relates to the subject matter concerning the testimony of the witness.”

        Marshall v. State, 230 Ga. App. 116, 119 (2) (495 SE2d 585) (1998).

        Gibson v. State, 233 Ga. App. 838, 841 (3) (505 SE2d 63) (1998).


text:
    A00A0981.
    CARTER v. PROGRESSIVE INSURANCE COMPANY et al.
    (541 SE2d 418)
   Blackburn, Presiding Judge.

Christopher Carter appeals from the trial court’s entry of default judgment against him and in favor of Progressive Insurance Company. Carter contends that the trial court erred in failing to open default because service of process was insufficient. Because Carter failed to show that service of process was insufficient, we affirm.

1. On appeal,

[t]he sole function of an appellate court reviewing a trial court’s denial of a motion to open default is to determine whether all the conditions set forth in OCGA § 9-11-55 have been met and, if so, whether the trial court abused its discretion based on the facts peculiar to each case.

(Punctuation omitted.) Stewart v. Turner.

The pertinent facts are undisputed. Progressive filed a subrogation claim against Carter in the State Court of Clayton County. After several unsuccessful attempts to serve Carter personally, notorious service was made. The sheriff’s return of service states that, on July 16, 1999, the complaint was delivered to Ruth Carter, Carter’s mother, at Carter’s residence.

After more than 45 days elapsed without Carter filing an answer, Progressive requested that the case be stipulated to the non-jury default calendar. On October 15, 1999, Carter filed a motion for leave to file defenses, answer and counterclaim in which he asserted insufficient service of process. The trial court, denying the motion, determined that Carter failed to make the requisite showing under OCGA § 9-11-55 (b) to open default prior to final judgment and that Carter failed to show that he had not been properly served. The case was set for a bench trial to address the issue of damages. Shortly before trial, Carter filed a second motion to open default, which the trial court denied. Judgment was entered against him in the amount of $13,000.

Carter contends the trial court erred by failing to open default because service of process was insufficient.

Under OCGA § 9-11-55 (b), a prejudgment default may be opened on one of three grounds if four conditions are met. The three grounds are: (1) providential cause, (2) excusable neglect, and (3) proper case; the four conditions are: (1) showing made under oath, (2) offer to plead instanter, (3) announcement of ready to proceed with trial, and (4) setting up a meritorious defense. . . . Generally, the opening of a default rests within the sound discretion of the trial court.

(Punctuation and emphasis omitted.) Stewart, supra. In this case, to meet the four conditions, Carter raised insufficiency of service of process as a defense. Since Carter challenged the sufficiency of service, he bore the burden of proving improper service. Franchell v. Clark; Oden v. Legacy Ford-Mercury.

The record includes the signed entry of service which stated that service was made by leaving copies of the complaint at Carter’s residence with his mother. “The process server’s return of service can only be set aside upon evidence which is not only clear and convincing, but the strongest of which the nature of the case will admit.” (Punctuation omitted.) Oden, supra at 668. When Carter filed his initial motion to open default, he offered no evidence supporting his defense that service of process was insufficient. Later, the only evidence Carter submitted to prove failure of service was his verified pleading. Therein he simply stated that the complaint was delivered to his mother’s home, and he did not live with his mother at the time the complaint was served. Carter offered no corroborating evidence, such as an affidavit of his mother or proof of his residency elsewhere. “Although a return of service may be impeached by sworn statements made on personal knowledge, this Court has also held that in a case of the defendant’s word against the deputy sheriff’s [,] the presumption favors the sheriff’s return of service.” (Citation and punctuation omitted.) Id. In the absence of corroborating evidence to support the defendant’s testimony, the presumption favors the sheriff’s return of service. Moore v. Sanford, Adams, McCullough &c.

Decided October 27, 2000.

Saia & Richardson, Joseph J. Saia, for appellant.

Stuart J. Oberman, for appellees.

Whether a defendant presents evidence “sufficient to overcome facts reflected in a return of service is a question to be resolved by the trial court as the factfinder.” Franchell, supra at 131. This Court will not disturb the factual finding of the trial court that service was effected as long as there is some evidence to support it. Id.; Oden, supra; Patterson v. Coleman; Baughan v. Alaoui. The trial court did not abuse its discretion by denying the motion to open default under OCGA § 9-11-55 (b). Stewart, supra.

2. In his enumeration of error, Carter also contended that venue was improper. Carter, however, failed to support this enumeration with argument, so the error is deemed abandoned. Court of Appeals Rule 27 (c) (2).

Judgment affirmed.

Eldridge and Barnes, JJ, concur.

        Stewart v. Turner, 229 Ga. App. 119, 121 (2) (493 SE2d 251) (1997).

        Franchell v. Clark, 241 Ga. App. 128, 130-131 (3) (524 SE2d 512) (1999).

        Oden v. Legacy Ford-Mercury, 222 Ga. App. 666, 667-668 (1) (476 SE2d 43) (1996).

        Moore v. Sanford, Adams, McCullough &c., 175 Ga. App. 552 (1) (333 SE2d 681) (1985).

        Patterson v. Coleman, 252 Ga. 152 (311 SE2d 838) (1984).

        Baughan v. Alaoui, 240 Ga. App. 661, 662-663 (1) (524 SE2d 536) (1999).


author: Barnes, Judge. Blackburn, Presiding Judge,

text:
    A00A1480.
    JERRELL v. CLASSIC INSURANCE COMPANY et al.
    (541 SE2d 53)
   Barnes, Judge.

Michael Jerrell appeals the trial court’s grant of partial summary judgment to Classic Insurance Company and Progressive Insurance Company, subsidiaries of the Progressive Companies, in his suit against them for tortious conversion of property. Because some evidence exists in the record from which a jury could infer that the defendants acted maliciously, we reverse the trial court’s order.

On appeal from a grant of summary judgment, this Court conducts a de novo review of the record, construing the evidence and all inferences therefrom in favor of the nonmoving party. Maddox v. Southern Engineering Co., 231 Ga. App. 802, 803 (500 SE2d 591) (1998); Lane v. Spragg, 224 Ga. App. 606 (481 SE2d 592) (1997).

Viewed in this light, the record shows that on November 3,1994, Classic’s insured drove into the back end of Jerrell’s car, a 1988 Pontiac. Jerrell hit his face on the steering wheel several times and was taken to the hospital. The police towed his car to an impound lot, where Progressive inspected it and declared it a total loss. Jerrell then had the car towed to Williams Body Shop for an independent evaluation. At some point Jerrell retained an attorney to represent him on his personal injury claim, but he was negotiating the property damage claim himself.

On November 22, 1994, Classic adjuster Mark Reid notified the insurance company’s total loss unit to pick up Jerrell’s car and offered Jerrell $2,225 for the car. Jerrell wanted more money for the car, and negotiations apparently reached an impasse.

In April 1995, Jerrell went to Williams Body Shop to retrieve some personal possessions from the car and discovered that the car had been towed to Classic’s subcontractor, Sadisco, sometime previously. The body shop owner testified that, while he did not remember this particular incident, usually a salvage company calls and tells him it has the owner’s permission to remove the car, then it does so. He does not contact the owner to verify permission. Jerrell testified that he never gave permission to have the car removed and that he was still “pursuing possibilities” of repairing the car. Adjuster Reid testified that he did not know if he got permission from Jerrell to move the car; while his normal practice was to note in his computer files when he received such permission, no such note appeared in the file and he had no recollection one way or the other.

Melanie Hunter, an insurance adjuster with Classic who also handled Jerrell’s claim, testified that company guidelines provided that, once a car is determined to be a total loss, the adjuster should ask the owner for permission to move it.

Our statement to them is, your vehicle is accruing storage where it’s located and that is if it’s at a storage-accruing location. We would like to move it to a storage free location, it’s still owned by you, it will simply sit there until the paperwork is processed and we come to an agreement. Now if it’s at their home and it’s not accruing storage, then we tell them that once we agree upon an amount and they have signed the proper documents we will be moving the vehicle.

However, Jerrell testified that Williams Body Shop was not charging him storage fees, and the body shop owner testified that he did not care how long the car stayed at his shop.

In a letter dated April 19, 1995, Jerrell’s lawyer wrote a letter to Hunter, first discussing the underlying collision and requesting information about coverage. The attorney then addressed the property claim as follows:

On a separate issue: As I assume you are aware, Progressive Insurance Company has previously taken possession of Mr. Jerrell’s wrecked car and hauled it off to who knows where — without first paying his claim and without obtaining his permission. The car had valuable personal property in it (including, for example, tools utilized by Mr. Jerrell in his computer repair business, an in-car mounting platform for a cellular phone, and various other items), which property, along with the car itself, was also wrongfully taken. These actions clearly constitute tortious conversion of Mr. Jerrell’s property. Progressive will be named as a party defendant with respect to the conversion claim. I strongly suggest that someone with Progressive contact me regarding immediately reimbursing Mr. Jerrell for the full value of the car and the various other items of personal property taken by Progressive. I might add that any claim which we assert for conversion of Mr. Jerrell’s property will include a claim for punitive damages and for expenses of litigation. Your insured’s policy limits (whatever they might be) are irrelevant to such a claim, because it will be asserted against Progressive, not [the insured], and will be based on Progressive’s own independent tortious acts. I look forward to hearing from you promptly with respect to both the policy information and with regard [to] prompt reimbursement for Mr. Jerrell’s car and the other converted property items.

Hunter responded on April 24, 1995, by sending a copy of the insured’s policy and advising Jerrell’s attorney to contact Reid, to whom she had forwarded the letter, regarding the property settlement. Hunter testified that she was not concerned about the conversion allegations in the letter, nor did she consult with the insurance company’s in-house counsel about it. In fact, Hunter testified that she found the entire file humorous because Jerrell’s lawyer corresponded only with in-house counsel, not with her, even though the in-house lawyer acted at her direction, and she thought Jerrell had been “grossly overpaid in every aspect of the claim.”

On May 22, 1995, Jerrell’s attorney sent another letter to Hunter, noting that her supervisor indicated she would now be handling both the property and bodily injury claims.

Hunter testified that she next reviewed the file 90 days later, according to her regular schedule, and on August 23, 1995, sent the following letter to Jerrell’s attorney:

This letter is to reiterate our current offer of $2,225.00 to settle your client’s property damage claim for his 1988 Pontiac 6000. In addition to this amount, we agreed to cover $396.68 in rental charges even though the State of Georgia Laws allow us to deny rental coverage or loss of use in the case of a total loss vehicle. Sadisco Storage has recently advised me that they are currently charging $1 per day since February 22, 1995, due to the length of time this vehicle has been in storage. This letter is to advise you that if this offer is not accepted as of August 28, 1995, this $1 per day will come out of your client’s settlement amount. Please discuss this matter with your client and contact me at your earliest convenience.

On August 29,1995, Hunter sent another letter to Jerrell’s attorney, advising that Jerrell’s car would be moved to his home address on September 8, 1995, unless the parties made other arrangements. On August 30, 1995, the attorney representing Classic’s insured corresponded with Jerrell’s attorney, confirming a conversation five days earlier in which the insured’s attorney told Jerrell’s attorney where the car was located and invited Jerrell to collect from the car whatever personalty he needed.

After more letters were exchanged among the parties, Hunter sent a letter to Jerrell’s attorney on September 15, 1995, reiterating that if she did not hear from him within four days, the company would move the car to Jerrell’s home. She further advised Jerrell’s attorney to deal with her, not the insured’s attorney, who “while handling the legal aspects of this claim, does not have any authority as far as payment or decision-making goes.” Finally, Hunter stated in her letter that the company had tried several times to return Jerrell’s car to him but he would not cooperate, but in deposition she admitted that the only time the company mentioned returning the car to Jerrell was in the August 23, 1995 letter.

The next communication from Hunter to Jerrell’s attorney was a letter dated September 22, 1995, acknowledging receipt of a letter advising her to move Jerrell’s car back to Williams Body Shop. The letter continues:

Progressive has paid all tow and storage fees which have incurred [sic] since the date of this accident to Sadisco Salvage Company. The salvage value, along with the additional storage that Mr. Jerrell is responsible for, will be deducted from the final settlement amount. This letter is to advise you that I continue to refute your allegation that Progressive “stole” Mr. Jerrell’s vehicle. As far as the inventory of Mr. Jerrell’s vehicle goes, we will not be attending this meeting, as we have completed our own inventory of the items in Mr. Jerrell’s vehicle.

Hunter testified that she physically examined the car on September 20, 1995, at Sadisco’s lot. Photographs of the car showed that the bumper had been removed and placed in the trunk, and a water pump was in the backseat. She found no personal possessions in the car, except a computer chip on the front seat. Jerrell testified that, when the car was returned to Williams Body Shop, the exhaust system, the rear bumper, rear light assemblies, and the trunk lock had been removed from the car and placed in the trunk or on the backseat. Missing from the car were personal items that had been in the car when he last saw it at Williams Body Shop, before Classic towed it away.

Hunter testified that, while she understood that Jerrell was claiming that personalty had been taken from his car, she “was not taking that seriously.” When asked why not, she responded that she “did not believe there was anything in that vehicle at the time it was towed or moved or whatever.” She based that belief on her assessment of the car when she inspected it at Sadisco’s lot in September 1995, stating that:

I was basing a lot of how I felt about the worn places in the seats and the tears in the carpet and et cetera and the bald tires and the poor paint job on the vehicle and all that. So yes, I was basing all of that on the fact that it was not taken care of. . . . Well, to me personally I think that if a person has great care of feeling for personal items as he alleged that he did that would incorporate into everything he owned including the car. So if I look at a car that’s not taken care of then I do make assumptions that probably the house was not taken care of and the personal items, et cetera, et cetera. And maybe I shouldn’t make those assumptions, but I do and I did. So, no, I didn’t take it seriously.

Classic eventually paid Jerrell the policy limits of $15,000 for his entire claim, $3,750 of which was allocated to the property damage.

“To authorize the imposition of punitive damages, there must be evidence of wilful misconduct, malice, fraud, wantonness, or oppression, or that entire want of care which would raise the presumption of a conscious indifference to consequences.” (Punctuation omitted.) Ford Motor Credit Co. v. Spicer, 144 Ga. App. 383, 387 (3) (241 SE2d 273) (1977); OCGA § 51-12-5.1 (b). In Ford Motor Credit Co. v. Spicer, supra, we affirmed a jury verdict awarding punitive damages, concluding that the jury was authorized to consider those damages when a creditor continued to hold a debtor’s automobile even after learning that it erred in crediting payment to the wrong account. Similarly, we reversed summary judgment to a bank on a punitive damages claim in a case in which the bank continued to hold collateral and unrelated personal property even after it dropped its claim for storage costs and attorney fees. Keasler v. Cedar Bluff Bank, 162 Ga. App. 57 (290 SE2d 150) (1982).

We conclude that evidence in this case that Progressive took Jerrell’s vehicle without his permission, demanded storage fees after wrongfully taking Jerrell’s vehicle from a location that was not charging storage, and of the callous disregard of Jerrell’s rights as shown by Hunter’s letters and deposition testimony is sufficient to present a jury question regarding punitive damages. Keasler v. Cedar Bluff Bank, supra; Ford Motor Credit Co. v. Spicer, supra.

Judgment reversed.

Johnson, C. J., Pope, P. J., Eldridge and Phipps, JJ, concur. Blackburn, P. J., and Smith, P. J., dissent.

Blackburn, Presiding Judge,

dissenting.

I must respectfully dissent because I agree with the trial court that Jerrell has failed to produce clear and convincing evidence that the insurance companies’ actions were so egregious as to warrant an award of punitive damages.

As a prerequisite to punitive damages, OCGA § 51-12-5.1 (b) requires that Jerrell present clear and convincing evidence that the insurance companies’ actions “showed willful misconduct, malice, fraud, wantonness, oppression, or that entire want of care which would raise the presumption of conscious indifference to consequences.” By reversing the partial grant of summary judgment to the insurance companies, the majority must impute evidence of wilful misconduct despite the fact that Jerrell failed to ask that his totaled car be returned. There was no dispute that Jerrell’s car was totaled; the only dispute surrounded the worth of the car at the time of the collision. We cannot ignore the normal course of negotiations of this kind. We cannot impute a bad motive or conscious indifference on the insurance companies’ actions when it is unusual for a claimant to want a totaled car. Tony Adamson, of Williams Body Shop, deposed that this was the first time in 14 years of business that an owner was upset because a totaled car had been towed away. It is generally to everyone’s benefit to minimize storage expenses. Additionally, there is no evidence in the record of Jerrell asking for the car back. In fact, the evidence in the record indicates that it was the insurance companies who offered to deliver the car to Jerrell’s home, only to have Jerrell demand that the car not be delivered there. Almost two weeks later, Jerrell’s attorney finally informed the insurance companies where to take the car.

The present case is similar to the facts in Lamb v. State Farm &c. Ins. Co. Therein, Lamb sued State Farm for allegedly converting his totaled car after it was towed from the wrecker service yard where it was being stored. Although the insurance claims representative testified that Lamb had consented to the removal of his car, he refuted that he had done so. Initially, State Farm asserted that it would not return Lamb’s car until Lamb paid $193 to reimburse certain expenses. State Farm eventually returned the car to Lamb’s home. Id. at 365. The trial court directed a verdict on Lamb’s claims for punitive damages, and Lamb appealed. On appeal, this Court determined that “because Lamb failed to offer any evidence to prove egregious misconduct on the part of State Farm, a directed verdict was appropriate.” Id. at 366 (2).

Similarly, in the present case, the majority relies on the facts that the insurance companies took Jerrell’s vehicle without his permission, retained the vehicle and demanded storage fees. However, as we previously held in Lamb, such facts do not support the imposition of punitive damages. Additionally, in Lamb v. Salvage Disposal Co. (physical precedent only), a second law suit based upon the same facts found in Lamb v. State Farm, supra, this Court determined that where the insurance company returned the totaled car remains prior to filing an answer, there could be no damages for conversion when the damage to the car prior to the alleged conversion was in excess of the fair market value of the car. In essence, the car was a total loss before the alleged conversion, and it was still a total loss after the conversion. Lamb v. Salvage Disposal Co., supra at 196.

The cases cited by the majority are clearly distinguishable from the facts of this case. In Ford Motor Credit Co. v. Spicer, the plaintiff sought damages for conversion of his operational vehicle after the bank wrongfully repossessed it due to an error in crediting the plaintiff’s account. This Court affirmed the denial of the bank’s motion for judgment notwithstanding the verdict, finding, in part, that a jury was authorized to award punitive damages based upon evidence that the bank was aware that the plaintiff had paid all sums due immediately after the repossession but did nothing to remedy the situation. Id. at 387-388. Such a case is entirely different from an insurance company that is negotiating a claim on a totaled vehicle, which would have to be retitled by the state, prior to use. Additionally, in Keasler v. Cedar Bluff Bank, cited by the majority, a bank’s errors in handling its collection of a note, its failure to collect on the disability insurance provided and its maintenance of a suit against the debtor even after knowledge of its errors provided sufficient evidence for the reversal of the trial court’s order granting summary judgment to the bank on the issue of punitive damages. Again however, such facts are not remotely similar to the facts of the present case.

The facts of the present case do not support the imposition of punitive damages. See Lamb v. State Farm, supra; Lamb v. Salvage Disposal Co., supra. “Punitive damages cannot be imposed without a finding of some form of culpable conduct. Negligence, even gross negligence, is inadequate to support a punitive damage award.” Colonial Pipeline Co. v. Brown. Additionally, something more than the commission of an intentional tort is always required.

There must be circumstances of aggravation or outrage, such as spite or malice, or a fraudulent or evil motive on the part of the defendant, or such a conscious and deliberate disregard of the interests of others that the conduct may be called wilful or wanton.

(Punctuation omitted.) Cullen v. Novak. Further, “conscious indifference to consequences relates to an intentional disregard of the rights of another, knowingly or wilfully disregarding such rights.” (Punctuation omitted.) Petrolane Gas Svc. v. Eusery.

In the present case, there is no evidence to support Jerrell’s contention that the insurance companies consciously and deliberately disregarded his interest to the extent that their conduct was wilful or wanton. As the trial court correctly determined that Jerrell had failed to present sufficient evidence warranting punitive damages, I would affirm its decision.

Decided October 16, 2000

Reconsideration denied October 31, 2000.

Philip S. Cole, for appellant.

Downey & Cleveland, Rodney S. Shockley, for appellees.

I am authorized to state that Presiding Judge Smith joins in this dissent.

        Lamb v. State Farm &c. Ins. Co., 240 Ga. App. 363, 366 (2) (522 SE2d 573) (1999).

        Lamb v. Salvage Disposal Co., 244 Ga. App. 193 (535 SE2d 258) (2000).

        Ford Motor Credit Co. v. Spicer, 144 Ga. App. 383 (241 SE2d 273) (1977).

        Keasler v. Cedar Bluff Bank, 162 Ga. App. 57 (290 SE2d 150) (1982).

        Colonial Pipeline Co. v. Brown, 258 Ga. 115, 118 (3) (b) (365 SE2d 827) (1988).

        Cullen v. Novak, 201 Ga. App. 459, 460 (2) (411 SE2d 331) (1991).

        Petrolane Gas Svc. v. Eusery, 193 Ga. App. 860, 861 (1) (389 SE2d 355) (1989).


author: Andrews, Presiding Judge.

text:
    A00A1481.
    REDFERN v. THE STATE.
    (540 SE2d 701)
   Andrews, Presiding Judge.

William Earl Redfern was found guilty by a jury of burglary based on the charge that he entered a building without authority with the intent to commit a felony therein. On appeal he claims the evidence was insufficient to support the guilty verdict. Because we find the State failed to prove that the structure he entered was a building within the meaning of the burglary statute, we agree and reverse the judgment of conviction.

The indictment charged that on March 13, 1998, Redfern committed the offense of burglary by “entering] a building, to-wit: W.C.T.V. Tower” with the intent to commit therein the felony of criminal damage to property in the second degree. The State presented evidence that on the night of March 13, 1998, at about 10:30 an engineer employed by WCTV, who lived near the WCTV television broadcast tower, noticed that there was a problem with the lights atop the 2,000-foot-high tower. The engineer drove to the tower located inside a fenced-in tower compound area, which itself was located inside a fenced-in 180-acre site surrounding the tower. The tower compound area was comprised of a building which serviced the tower and the tower structure itself which was located adjacent to the service building.

The engineer testified that he discovered someone had broken a door to gain entry into the service building and stolen a key from the building that unlocked a control box on the tower which secured the controls operating the tower elevator. He further testified that he found the elevator control box had been unlocked, the missing key was in the lock lying on top of the box, and the elevator was being used by someone to go up the tower. Parachuting equipment he found near the building led the engineer to suspect that someone was attempting to parachute from the top of the tower. In fact, the engineer testified that they had caught people on previous occasions parachuting from the tower. Police arrived within a few minutes, and the engineer and a police officer brought the elevator back down and took it to the top of the tower to investigate. No one was found at the top of the tower, but they observed what appeared to be flashlights being carried by people on the ground moving away from the area of the tower. Officers investigating the lights discovered a car parked near the tower property covered by a parachute. A check of the car’s tag revealed that it was a rental car rented by Redfem. A bag was found near the car containing a parachute and an owner identification card bearing Redfern’s name.

The State presented additional evidence that over $500 of damage was done to the tower on the night of March 13. Part of the damage was to lights high on the tower, and the State presented evidence that a tower light alarm device showed that the light damage occurred at or near the time the break-in was discovered at the service building on the night of March 13.

Although Redfern initially told police he was not at the tower, he testified at trial and admitted he was there on the night of March 13 with two other people. He admitted they trespassed on the tower property, took the elevator to the top of the tower and parachuted from the top, then left their car, and hid when the police arrived. Redfem denied, however, that he or anyone with him broke into the service building, stole a key, or damaged the tower. According to Red-fem, he was associated with a group of persons who had parachuted on numerous occasions off the WCTV tower and high buildings, antennae towers, bridge spans, and natural precipices as part of an activity called BASE (building, antennae, span, and earth) jumping. He testified that on a previous visit to the tower for BASE jumping, he had obtained a number off the bottom of the Master Lock on the elevator control box and used the number to obtain a duplicate key to the lock from a locksmith. Redfem said he used his duplicate key to gain access to the elevator control box on the night of March 13.

The State alleged in the indictment that Redfern committed the offense of burglary when, without authority, he entered “a building, to-wit: W.C.T.V. Tower” with the intent to commit therein the felony offense of criminal damage to property in the second degree. The offense of burglary is defined as follows:

A person commits the offense of burglary when, without authority and with the intent to commit a felony or theft therein, he enters or remains within the dwelling house of another or any building, vehicle, railroad car, watercraft, or other such structure designed for use as the dwelling of another or enters or remains within any other building, railroad car, aircraft, or any room or any part thereof.

OCGA § 16-7-1 (a). Accordingly, in order to prove the offense of burglary as charged in the indictment, the State was required to prove that the WCTV tower unlawfully entered by Redfern was a building within the meaning of the burglary statute and that Redfern intended to or committed the felony offense of criminal damage to property in the second degree in that building.

As to the element of unlawful entry, there was direct evidence that Redfern entered the WCTV tower, and the State produced additional circumstantial evidence that Redfern entered the service building adjacent to the tower to steal the key to the elevator control panel. The only evidence which the State produced proving the element of commission of the felony offense of criminal damage to property in the second degree was circumstantial evidence that, after entering the WCTV tower, Redfern caused over $500 of damage to the tower.

Although the State does not clearly set forth its theory, it appears that to prove the charge that Redfern unlawfully entered the alleged building with the intent to commit the charged felony therein, the State intended to show either: (1) that the WCTV tower, standing alone, was a building for purposes of the burglary statute, or (2) that, even if the tower standing alone would not be considered a building, it was a building under the burglary statute because it was part of the adjacent service building.

We find no evidence to support a claim that the 2,000-foot-high broadcast tower should be considered a building because it was part of the adjacent service building. Although photographs show there was a walkway between the service building and the tower, they were clearly two separate structures. The base of the tower was a short distance from the service building, and the tower was independently supported by guy wires running from the tower to the ground. Moreover, testimony from the WCTV engineer indicated that he had to exit the service building to walk to the elevator control panel located on the tower. Compare Floyd v. State, 207 Ga. App. 275, 280 (427 SE2d 605) (1993) (where we concluded that a garden center contiguous to a store was part of the store’s main building).

Accordingly, the issue which controls this case is whether the broadcast tower was a building within the meaning of the burglary statute. “Georgia’s [burglary] statute is very broad and does not limit its application to buildings of any particular type or in any particular condition.” Smith v. State, 226 Ga. App. 9, 11 (485 SE2d 572) (1997) (unfinished house was a building under the burglary statute). The statute has been interpreted as applying to buildings of “whatever kind.” Id.; Franks v. State, 240 Ga. App. 685, 687 (524 SE2d 545) (1999) (enclosed metal trailer used to store goods was a building under the burglary statute). For example, in Floyd, 207 Ga. App. at 280, we noted that the Supreme Court in Williams v. State, 105 Ga. 814, 815 (32 SE 129) (1898) held that a chicken coop enclosed only by wire and covered by shingles was within the meaning of a criminal statute prohibiting theft not only from “any dwelling-house, store, shop, [or] warehouse” but also from “any other building.” Williams defined the term building as “an edifice for any use; that which is built, as a dwelling-house, barn, etc.” (Citation omitted.) Id. at 815. Similarly, in construing the burglary statute in Smith, 226 Ga. App. 9, we referred to another broad definition of a building as

a structure in the nature of a house built where it is to stand; as commonly understood, a house for business, residence, or public use, or for shelter of animals or storage of goods, and very generally, but not always, the idea of a habitation for the permanent use of man, or an erection connected with his permanent use.

(Citation and punctuation omitted.) Id. at 10-11.

Nevertheless, the broad meaning given to the term building under the burglary statute does not encompass every type of structure. One element common to the various structures found to be buildings under the statute is that they provided an enclosure of some type for people, animals, or goods. We find this element to be lacking in the WCTV broadcast tower at issue. The purpose of the 2,000-foot-high tower was not to enclose anything but to provide a tall structure from which the television broadcast signal could emanate. The tower was a slender structure constructed of steel beams and held upright by guy wires running from the tower to the ground. It was open to the elements from all sides from top to bottom. To the extent a means was provided by stairs or elevator to ascend the tower, the only apparent purpose for this was tower maintenance. We conclude this is not the type of structure the legislature intended to protect as a building under the burglary statute. Accordingly, the illegal entry upon and alleged damage to the tower caused by Red-fern were covered not by the burglary statute but by the criminal statutes related to criminal trespass and damage to property set forth in OCGA Title 16, Chapter 7, Article 2.

Decided October 31, 2000.

Culpepper & Horne, Robert Culpepper III, Melvin R. Horne, for appellant.

J. David Miller, District Attorney, Robert R. Auman, Assistant District Attorney, for appellee.

Judgment reversed.

Ruffin and Ellington, JJ, concur.

       We note that Redfern was charged in a separate count of the indictment under OCGA § 16-7-23 with the felony offense of criminal damage to property in the second degree and was found not guilty.