author: Ruffin, Judge.

text:
    A98A2060.
    CLARK v. BLUE CIRCLE, INC.
    (514 SE2d 473)
   Ruffin, Judge.

Brian Clark sued Blue Circle, Inc., d/b/a Blue Circle Williams (BCW), for injuries he sustained in a motorcycle crash. Clark died on March 27,1998, and Katherine Clark, as administratrix of his estate, has been substituted as plaintiff. The trial court granted BCW’s motion for summary judgment, and plaintiff appeals. Because genuine issues of material fact remain as to BCW’s liability, we reverse.

1. As an initial matter, we note that plaintiff has failed to comply with Court of Appeals Rules 22 (a) and 27 (c) (1). Rule 22 (a) requires an appellant to file a separate enumeration of errors, which plaintiff has not done. Although plaintiff enumerates four errors in her brief, her argument section contains only two listed arguments which do not follow the order of her enumerations. See Court of Appeals Rule 27 (c) (1).

Rule 27 (c) (1) is more than a mere formality. It is a requirement which this Court imposes to ensure that all enumerations of error are addressed and to facilitate review of each enumeration. By failing to comply with the rule, [plaintiff! has hindered the Court’s review of [her] assertions and has risked the possibility that certain enumerations will not be addressed. Accordingly, to the extent that we are able to discern which of the enumerations are supported in the brief by citation of authority or argument, we will address those enumerations. Pursuant to Court of Appeals Rule 27 (c) (2), however, all other enumerations will be treated as abandoned.

John Crane, Inc. v. Wommack, 227 Ga. App. 538 (1) (489 SE2d 527) (1997).

2. “On appeals from grants of summary judgment, it is this court’s function to examine the record and determine whether the allegations of the pleadings have been pierced so that no genuine issue of material fact remains. Our review is de novo.” (Citations and punctuation omitted.) Bandy v. Mills, 216 Ga. App. 407 (454 SE2d 610) (1995).

Viewed in the light most favorable to plaintiff, the nonmoving party, the record shows as follows. On September 18, 1995, Clark was riding his motorcycle eastbound on Glenwood Avenue at approximately 25-30 mph. As he was rounding a curve, Clark began reducing his speed for a traffic light, when he hit a patch of gravel approximately ten to fifteen feet west of the entrance to BCW’s plant and slid into its metal, chain-link fence. Clark testified that “a couple of times” he had seen gravel fall off BCW’s dump trucks on this street.

Officer Anthony Jackson testified that when he arrived at the scene, he found Clark “laying up” under his bike “right in front of’ BCW. According to Jackson, Clark said that he lost control of his bike in front of BCW on “a lot of gravel and sand in the roadway.” Jackson noticed only “normal road debris” in the roadway, but saw a high concentration of sand and gravel at BCW’s entrance.

John Wayne Curtis, a passenger in a car traveling approximately 100 yards behind Clark’s motorcycle, testified that he saw Clark go around a comer, hit gravel and lose control of his bike. After the accident, Curtis saw gravel on the roadway, but he could not remember how much. Curtis, who lives up the street from the plant, testified that “every other time” he has driven by the plant, he has seen gravel approximately 50 feet in each direction from the plant’s entrance and that he has seen gravel, sand and “other materials” falling off trucks as they enter and exit the plant.

Melissa Atkinson, also a passenger in the car traveling behind Clark, testified that she believed gravel in the road directly in front of the plant caused Clark’s accident. Atkinson, like Clark and Curtis, had seen dump trucks lose sand and gravel on Glenwood Avenue before the accident.

Several BCW employees gave contradictory testimony regarding the presence of debris in front of the Glenwood Avenue plant. In an affidavit, BCW’s multi-plant manager, Harold Kee, stated that BCW operates a “dry batch concrete plant” which means that the concrete trucks are rinsed off prior to the trucks leaving the plant. BCW uses concrete mixer trucks to carry mixed concrete, not dump trucks or other types of trucks that carry loose gravel, rock or sand. Kee stated that the concrete trucks at this plant “are not allowed to, and do not, drive on Glenwood Avenue” west of the driveway where plaintiff claims he lost control of his motorcycle.

Edward Collins, a BCW truck driver, also testified that concrete mixers are not allowed to drive on Glenwood Avenue in the direction from which Clark was traveling. According to Collins, there could not have been any spillage at the plant’s entrance, and if there was any debris on the roadway, it would have been near the curb, and not in a driving lane. Another driver, Harrison Leonard, testified that he has never observed any gravel or debris near the plant’s entrance. According to Leonard, other companies’ trucks bring rocks and gravel to the plant.

Bill Owen, BCW’s maintenance supervisor, testified that as the concrete trucks leave the plant, they can “spill” for various reasons. Owen stated that it is necessary for BCW to clean the street after a concrete spill because it “gets on the cars” and “it’ll make your tires spin.” Owen explained that the mixed concrete contains sand and rock.

Johnny Calhoun, a BCW driver, arrived at the scene after Clark’s accident. Calhoun testified that he did not see any dirt or gravel on the road in front of the plant’s driveway, but explained that he was not “really looking for that” since he was concerned about Clark: According to Calhoun, if a driver sees that something has spilled from his truck as he leaves the plant, he will call someone to pick it up. However, Calhoun “wouldn’t be surprised to find rocks and gravel” in the street because of the number of BCW and other companies’ trucks that go in and out of the plant on a daily basis.

Gregory Goodman, another BCW truck driver, saw Clark after the accident. Although Goodman had seen instances where a mixer leaving the plant will spill concrete onto the ground, he could not recall whether there had been any spillage on the date of Clark’s accident. Yet another BCW driver, Phillip Richardson, testified that he has seen debris, gravel, and dried concrete at the plant’s entrance on occasion. Patrick McClellan, a former BCW driver, testified that there was sand and gravel in front of the plant and “further up, further down” the road every day. According to McClellan, it was “normal” to have “sand, gravel, mud, dirt, water, everything” where a concrete plant is concerned.

On appeal, plaintiff contends that the trial court erred in granting summary judgment to BCW because there was evidence from which a jury could find that Clark’s accident was caused by sand, gravel and other debris that BCW negligently spilled in front of its plant. We agree.

An owner of property abutting upon a street or highway is not, by virtue of being such [an] owner, liable for defects in the street or highway. But this rule has no application where the owner of abutting property creates a defect in a street or highway or a nuisance therein. In the latter event he is liable, not because he owns the abutting property, but because he creates or maintains the thing from which injury results.

Ga. R. &c. Co. v. Tompkins, 138 Ga. 596, 599 (2) (75 SE 664) (1912).

BCW contends that it is entitled to summary judgment as a matter of law because (1) its trucks do not travel west of its entrance where plaintiff alleges loose sand and gravel caused Clark to lose control of his motorcycle; (2) there is no evidence that the loose sand or gravel that caused Clark to lose control came from its plant or one of its trucks; and (3) loose sand or gravel on a public street is not a dangerous or defective condition as a matter of law. These contentions are without merit.

We address BCW’s first two contentions together. BCW places great significance on the location where Clark lost control of his motorcycle, contending that its trucks do not travel west of its driveway. However, several of BCW’s own witnesses testified that regardless of where the trucks actually traveled, sand, gravel and other debris from its trucks could be found in both directions from the plant’s entrance. Clark and the two eyewitnesses to his accident each testified that they had seen BCW trucks spill gravel and other debris on Glenwood Avenue before this incident. Thus, there is some evidence to support plaintiff’s claim.

We also cannot say that as a matter of law any debris negligently spilled in the road by other companies’ trucks in front of the plant relieves BCW of any liability to Clark. In Miller v. APAC-Ga., 197 Ga. App. 801 (399 SE2d 534) (1990) (physical precedent only), the plaintiff lost control of her car after she hit some loose gravel on the roadway and slid down an embankment at a construction site. Defendant argued that it could not be deemed negligent with regard to the loose gravel because it did not haul the gravel to its work site. Id. at 803 (2). In concluding that the defendant was not entitled to summary judgment, this Court held that it could be “held liable if it negligently permitted the gravel to remain on the roadway.” Id. Likewise, if trucks coming to and from BCW’s plant on a daily basis spill sand and gravel on the roadway abutting the plant, rendering it dangerous to passers-by, a jury could find that BCW was negligent in allowing the debris to remain in the roadway.

At his deposition, Clark testified that he hit gravel ten to fifteen feet west of the plant’s entrance, and not directly in front of the plant as he later stated in his affidavit. We fail to see how any inconsistencies in Clark’s testimony regarding the location of his accident are material. Whether he lost control of his motorcycle directly in front of the plant or ten to fifteen feet west of it, there was evidence that gravel caused his accident and that the gravel could have come from BCWs trucks or other companies’ trucks which regularly used BOW’S driveway. Thus, the fact that Clark said one thing at his deposition and another in his affidavit goes more to his credibility than to the issue of whether BCW negligently spilled gravel in the roadway. The weight given to any inconsistencies in a party’s testimony which may affect his credibility is exactly the sort of issue for a jury’s resolution. See Norris v. State, 220 Ga. App. 87, 88 (1) (469 SE2d 214) (1996) (“ ‘ “[t]he weight and credibility of witnesses are questions for the triers of fact” ’ ”).

Nevertheless, even if we assume for summary judgment purposes that BCW was responsible only for the sand and gravel which had accumulated directly in front of its plant, and we construe Clark’s affidavit testimony against him, there is independent evidence from which a jury could find that Clark lost control of his bike at the plant’s entrance. “[T]he opposing party is entitled to judgment only where the favorable portion of the party’s self-contradictory testimony is the only evidence of his right to recover or of his defense.” (Punctuation omitted.) Korey v. BellSouth Telecommunications, 269 Ga. 108, 109 (498 SE2d 519) (1998). “[T]he opposing party is not entitled to judgment in its favor where there is evidence other than the favorable portion of the equivocator’s self-contradictory testimony that supports the equivocator’s position.” Id. An eyewitness testified that Clark lost control of his bike “in front” of the plant. Shortly after the accident, Clark himself told the investigating officer that he lost control on sand and gravel “in front” of the plant. We also note that in marking several photographs of the scene supplied by the defense at his deposition, Clark stated that he could not be completely sure where he lost control of his bike because “it was a rough road” and because he did not actually see any gravel until he started sliding and was “on top of it.”

Lastly, we turn to BCW’s argument that loose sand or gravel in a roadway is not a dangerous condition as a matter of law. BCW cites City of East Point v. Mason, 86 Ga. App. 832, 834 (3) (72 SE2d 787) (1952) for the proposition that to require it to keep the street in front of it “free from loose gravel is to require the impossible from a standpoint of reasonable possibility both from a manpower and a financial point of view.” However, Mason dealt with a far different situation than the one at hand. In Mason, we explained that an abutting property owner is not liable for damages for “the accumulation of a small amount of gravel on a sidewalk” where the defendant did not cause that gravel “to get upon the sidewalk” and the gravel got on the sidewalk “in a natural and usual way,” such as being washed from a driveway or carried on by foot. (Emphasis supplied.) Id. at 833-834 (1)-(2). Here, the investigating officer saw a “high concentration” of sand and gravel at the plant’s entrance. In addition, none of BCW’s employees testified that any debris on the roadway got there “in a natural and usual way.” To the contrary, several employees testified that debris was a common sight in front of the plant where numerous trucks hauling both liquid concrete as well as sand and gravel regularly came and went on a daily basis.

Decided March 15,1999

William N. Robbins, for appellant.

Webb, Carlock, Copeland, Semler & Stair, Wade K. Copeland, Daniel J. Huff, for appellee.

In concluding that there remain genuine issues of material fact to be tried in this case, we note that

[a]s a general proposition issues of negligence . . . are not susceptible of summary adjudication either for or against the claimant, but should be resolved by trial in the ordinary manner. The trial court can conclude as a matter of law that the facts do or do not show negligence on the part of the defendant or the plaintiff only where the evidence is plain, palpable and undisputable.

(Punctuation omitted.) Miller, supra at 802 (1). Accordingly, because there is evidence from which a jury could find that (1) BCW negligently spilled sand and gravel on the street and/or (2) BCW negligently left spillage on the street from other companies’ trucks using its entrance, causing Clark to lose control of his motorcycle, we conclude that the trial court erred in granting summary judgment to BCW

3. Having found that issues of material fact remain to be tried, we need not address plaintiff’s remaining arguments.

Judgment reversed.

Pope, P. J., and Beasley, P. J., concur.

       There is no indication in the record that Brian Clark’s death resulted from the September 1995 accident. All references hereinafter to “Clark” are to Brian Clark.


source: Caselaw Access Project

license: Public Domain

text:
    A98A2107.
    INDIAN RIVER DISTRIBUTORS, INC. v. SAVANNAH BUSINESS SYSTEMS, INC.
    (514 SE2d 468)
   Ruffin, Judge.

Savannah Business Systems (SBS) sued Indian River Distributors and its president, Roy Newsome, seeking damages for breach of contract. The trial court granted SBS’ motion for summary judgment, and Indian River appeals. Because SBS was entitled to recover damages as a matter of law, we affirm.

As an initial matter, we note that Indian River failed to file a separate enumeration of errors as required by Court of Appeals Rule 22 (a). This Court does not look with favor upon one who fails to follow the rules of this Court. We remind Indian River that failure to comply with this Court’s rules may “subject! ] the offending party and/or attorney to contempt and may subject the appeal to dismissal or cause [appellant’s] brief to be stricken.” Court of Appeals Rule 7; see also Leslie v. Williams, 235 Ga. App. 657, 663 (510 SE2d 130) (1998) (Ruffin, J., dissenting). Nevertheless, we elect to address the enumeration of error as framed by Indian River in its brief. However, we do not elect to address any issues not specifically raised by Indian River in the enumeration and addressed in the argument section of its brief.

1.

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

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

Viewed in the light most favorable to Indian River, the nonmoving party, the record shows that since 1984, SBS has provided Indian River with computer goods and services, which have been used in the operation of Indian River’s business, Specialty Merchandise Distributors (SMD). From August 1988 through September 1996, SMD paid SBS $90 a month for service and support of its computer system. During this time period, SBS also provided SMD with additional computer goods. According to SBS’ president, Stephen Sacks, until 1993 SMD always paid for these goods upon SBS’ submission of an invoice. In fact, Indian River states that it “always accepted at face value any invoice or bill that [SBS] presented to it.” However, the parties never signed a formal contract or any purchase orders.

In March 1993, Sacks submitted a proposal to replace SMD’s existing computer system with a more extensive network system. According to Sacks, Newsome gave him verbal permission to install the new computer system pursuant to this proposal. In July and August 1993, after several months of adapting a new computer network to SMD’s unique business needs, SBS installed a substantial portion of the new computer system.

In September 1993, following SBS’ submission of a written proposal dated September 7, 1993, SBS also installed a desktop publishing computer system at SMD. On October 6,1997, SBS submitted an invoice for the amount $23,035 for the costs of SBS’ services, the new computer network and the desktop publishing system. SBS submitted and resubmitted this invoice to Indian River, which Indian River has not paid. According to Sacks, Indian River never rejected the goods or complained about them. In fact, Indian River used the computer equipment provided by SBS as collateral to secure a loan in the amount of $23,000. Indian River admits that it received a “substantial” amount of computer equipment and software from SBS and “that it derived some benefit therefrom,” but contends that SBS did not provide everything listed on its invoice and that SBS over-billed SMD for the goods provided.

In response to SBS’ motion for summary judgment, Indian River produced the affidavit of Edward Reece, the owner and CEO of Pioneer Micro Systems, who investigated Indian River’s computer system approximately four years after SBS installed it. According to Reece, he “found a number of discrepancies between what was billed for on the invoice, and what was actually there.” In addition, Reece compared the invoice prices to what he considered “fair market prices at the time [SBS] allegedly installed or provided its computer system for [SMD]” and found that the “invoice was at least $3,814.25 higher than it should have been.”

Indian River, without citation to any authority, contends tha.. the trial court erred in granting summary judgment to SBS. Specifically, Indian River claims that it was not required to pay the invoice at issue because (1) the prices SBS charged for its new computer networking system and related services were greater than fair mar? ket value; (2) all of the computer software and hardware outlined in SBS’ invoice was not delivered; and (3) SBS never sent any letters requesting payment for a three-year period following SBS’ original, October 1993 invoice. These claims lack merit.

Before addressing these claims, however, we note that Indian River does not contest that the parties had an agreement as reflected in the invoice at issue in the argument section of its brief. In fact, in its brief, Indian River states that SBS has “established rather clearly that there was a course of conduct between [the parties] dating back to 1984” and pursuant to that course of conduct, it “always accepted at face value any invoice or bill that [SBS] presented to it, and [it] never sought to obtain competitive bids.” Therefore, as discussed above, we do not consider this issue.

Given the existence of an agreement between the parties, we turn to Indian River’s claims. Indian River argues that there is an issue of fact regarding “the true and reasonable value of the computer hardware and software” SBS provided. However, because Indian River agreed to the invoice price, it is irrelevant that such price may be higher than the hypothetical “fair market value” of the goods. See Hightower v. Century 21 Farish Realty, 214 Ga. App. 522, 524 (448 SE2d 271) (1994) (party affirming a contract bound by its terms).

Indian River argues that there is a jury question with regard to whether it received all of the computer equipment that SBS promised. However, this claim is barred by the fact that Indian River has waited more than four years to notify SBS of any alleged breach of their agreement. See Massey v. Thomaston Ford Mercury, 196 Ga. App. 278, 279 (1) (395 SE2d 663) (1990) (buyer’s claim for breach of contract barred where he waited a year before notifying seller of absence of certain features on vehicle).

Finally, we reject Indian River’s claim that SBS’ alleged failure to send any letters requesting payment for a three-year period following its original invoice represents a material fact for which there is a genuine dispute. Indian River makes no showing as to how this claim affects SBS’ ability to enforce the parties’ agreement. Although Indian River argues that this failure to send letters should affect SBS’ ability to obtain any prejudgment interest, it offers no support whatsoever for this proposition. Accordingly, we affirm the trial court’s grant of summary judgment to SBS.

Decided March 15,1999.

Michael H. Graham, for appellant.

Buchsbaum & Lowe, Alan S. Lowe, for appellee.

2. With respect to SBS’ motion for damages for frivolous appeal, “[i]t does not appear to this court that all of the issues raised by [appellant] were without arguable merit. Consequently, the [appellee’s] motion for imposition of damages pursuant to [OCGA § 5-6-6] for filing a frivolous appeal is denied.” Barker v. Century 21 Atlanta East Realty, 162 Ga. App. 828, 829 (4) (293 SE2d 76) (1982).

Judgment affirmed.

Pope, P. J., and Beasley, P. J., concur.

       The trial court granted summary judgment to Newsome, and plaintiff has not appealed this ruling.

       We note that in its brief Indian River has also failed to comply with this Court’s Rules 27 (a) (1) and (c) (3) (i). Indian River cites to the record only once in its statement of facts and has completely failed to cite to the record in its argument. Indian River has also cited no authority whatsoever in the argument section of its brief. However, it is within our discretion to reach the merits of the case, and we do so here only because the record is short and SBS has provided ample and accurate citations to it.

       We further note that in its amended answer, Indian River struck its original defense that it “never entered into a contract with Plaintiff as alleged,” and stated “to the extent that there may be any constructive contract or implied contract, it was only with . . . [Indian River], and not with .. . [Newsome] individually.”

       We note that Indian River apparently believed the computer goods it received from SBS were well worth their approximately $23,000 invoiced price when it used the equipment to secure a loan for just that amount.


author: Pope, Presiding Judge.

text:
    A98A2143.
    TRONCALLI v. JONES.
    (514 SE2d 478)
   Pope, Presiding Judge.

Regina Jones sued Tom Troncalli. Her complaint set forth one count of stalking; a claim for intentional infliction of emotional distress; a claim for negligent infliction of emotional distress; a claim for invasion of privacy; and a claim for assault and battery. In addition to the claim for compensatory damages, the complaint sought punitive damages.

The case was tried to a jury; at the conclusion of the evidence, the trial court directed a verdict on the claim for negligent infliction of emotional distress. The jury then returned a general verdict in Jones’ favor for $45,000 in compensatory damages; the jury also found that punitive damages were warranted by the evidence and that Troncalli had acted with specific intent to cause harm. The punitive damages portion of the trial was then held, and the jury awarded $245,891 in punitive damages. The trial court entered judgment, Troncalli appeals, and based on our conclusion in Division 1 that stalking is not a tort, we reverse the judgment.

Viewing the evidence in the light most favorable to the verdict, Jones and Troncalli, who previously had met briefly, were at a mutual friend’s house for a business-related party on April 24, 1996. Troncalli approached Jones and talked with her. During the conversation he “brushed up” against Jones’ breasts with his arm and then looked at her to acknowledge that he had intentionally touched her. Jones felt uncomfortable and went to a different room; Troncalli followed her. He then gave her his business card and again intentionally touched her breasts.

Because she felt uncomfortable at the party, Jones left the party and got in her car. She saw Troncalli leaving the party and quickly walking to his car. As Jones was driving away, she noticed in her rearview mirror that Troncalli was following her in his car. Because she was afraid, Jones ran a stop sign, and Troncalli also ran the stop sign. Jones recalled that Troncalli followed her car very closely and when she began speeding, he began speeding too. Jones drove through the parking lot of a convenience store to avoid stopping at a stop sign; Troncalli followed her through the lot.

After traveling about three miles, Jones saw two police cars parked in front of a gas station. She drove up to the police and told them she was being chased. Troncalli arrived in the parking lot about a half-minute after Jones arrived. The police officers, who testified at trial, stated that Jones appeared “extremely frightened” and upset; she told the officers about Troncalli’s behavior. At this point, Troncalli motioned at Jones as if to cut his throat. Troncalli looked angry, and Jones understood the gesture as a threat. One of the officers confirmed that the gesture appeared threatening and recalled that after Troncalli gestured, Jones asked the officers to tell Troncalli to go away. The officers then asked Troncalli to leave the premises. After about five minutes, Jones left the parking area and went home.

Officer Gomez testified that he asked Jones if she wanted to file a report regarding Troncalli’s stalking. Jones did not want to pursue the matter. Gomez recalled that about a week after the incident, Jones came to the police station and asked that an incident report be made. She was also interested in getting a warrant against Troncalli. Though no charges were filed against Troncalli, both the incident report and the warrant were introduced as exhibits.

The evening after the business party, Jones and Troncalli were both present at a Chamber of Commerce meeting. Jones testified that before she was aware that Troncalli was present, he walked up behind her, put his mouth on her neck, and told her she had better be careful, because someone might be watching her. Jones became very frightened and tried to get away from Troncalli, but he followed her. Jones told Troncalli that he was frightening her and asked him to leave her alone, but Troncalli laughed at her request. Jones left the meeting soon thereafter.

On or about May 2,1996, a little more than a week after the first business meeting, Troncalli came to Jones’ house and banged loudly on the door for about five minutes. Although Jones was not at home, her teenage daughter testified that she saw Troncalli and that her mother became more frightened after this incident.

After these incidents Jones developed shingles, experienced nausea and vomiting, became frightened and depressed, and sought psychological counseling.

At trial, Paula Head and Tamara Roberts testified that Troncalli had also subjected them to unwanted attention, touched their breasts intentionally and against their will, continued to pursue them after they asked him to stop, and otherwise behaved in a sexually inappropriate manner.

Troncalli testified at trial and claimed that Jones’ account of the above incidents was erroneous.

1. In his first enumeration of error, Troncalli claims that the trial court erred in denying his motion for directed verdict on Jones’ claim of stalking. Troncalli argues that the court’s holding that a tort of stalking was created when the legislature created a criminal statute on stalking was erroneous. Jones argues that the court did not err in denying the motion for directed verdict and that the court’s charge on stalking simply set forth a duty which Troncalli breached. Jones claims that because there was a general verdict form the fact that stalking was included as an offense was, at most, harmless error.

The enactment of OCGA § 16-5-90, which defines the crime of stalking, did not automatically create a tort of stalking. It is well settled that “[t]he violation of a penal statute does not automatically give rise to a civil cause of action on the part of one who is injured thereby.” (Punctuation omitted.) Cechman v. Travis, 202 Ga. App. 255, 256 (1) (414 SE2d 282) (1991).

In Cechman, the plaintiff argued that OCGA § 19-7-5, which requires doctors with reasonable grounds for believing that a child has been abused to report such abuse, created a private cause of action. This Court rejected the argument that the criminal statute created a private cause of action in favor of the victim. See also Rolleston v. Huie, 198 Ga. App. 49, 50 (2) (400 SE2d 349) (1990) (no tort remedy available under OCGA § 16-8-16 for the allegedly unlawful attempt to disseminate information tending to impair appellant’s business); Sparks v. Thurmond, 171 Ga. App. 138, 142 (5) (319 SE2d 46) (1984) (plaintiff did not acquire private right of action pursuant to OCGA § 35-3-38, which renders the unauthorized procurement of Georgia Crime Information Center record information punishable).

Here, although OCGA § 16-5-90 establishes the public policy of the state, nothing in its provisions creates a private cause of action in tort in favor of the victim. We have been unable to locate any Georgia case which analyzes this issue. Though in Aycock v. Calk, 222 Ga. App. 763 (476 SE2d 274) (1996), the complaint and the counterclaim contained a claim for stalking, this Court did not address the legitimacy of those claims. Because there is no cause of action for stalking, the court should have granted Troncalli’s motion for directed verdict on this basis.

Jones’ argument that there was no harmful error because the jury returned a general verdict lacks merit. In fact, the opposite of this is true: “[s]ince the jury found a general verdict for the plaintiff against [the] defendant D, the verdict cannot stand for the reason that this court cannot determine whether the verdict was entered upon a proper basis. [Cits.]” Ga. Power Co. v. Busbin, 242 Ga. 612, 616-617 (8) (250 SE2d 442) (1978).

Similarly, Jones’ arguments that the jury was appropriately charged on stalking because the charge outlined Troncalli’s duty and because all of the evidence regarding stalking would have been otherwise admissible under other theories are without merit. Stalking was one of Jones’ main theories of recovery in the case; it formed a separate count of the complaint. Jones’ opening statement listed stalking as the first theory of recovery. In its closing charge, the court gave the jury a lengthy charge regarding stalking, tracking the statutory definition which is set forth in OCGA § 16-5-90. Contrary to Jones’ argument, the court did not instruct the jury that stalking simply defined a duty and Jones’ argument that stalking was peripheral to her recovery is without merit.

Because Troncalli’s additional enumerations involve issues which are likely to recur on retrial, we will also address these arguments.

2. In his second enumeration of error, Troncalli argues that the trial court erred in denying his motion for directed verdict on Jones’ claim of invasion of privacy.

Under Georgia case law, the concept of invasion of privacy encompasses four loosely related but distinct torts, as follows: (1) intrusion upon the plaintiff’s seclusion or solitude, or into his private affairs; (2) public disclosure of embarrassing private facts about the plaintiff; (3) publicity which places the plaintiff in a false light in the public eye; and (4) appropriation for the defendant’s advantage of the plaintiff’s name and likeness. [Cit.]

Sun v. Langston, 170 Ga. App. 60, 61 (2) (316 SE2d 172) (1984). In this case, Jones was clearly proceeding under the first category, i.e., intrusion into her private affairs.

As described above, Troncalli intentionally brushed up against and intentionally touched Jones’ breasts; he followed her in his car; he made a threatening gesture at her; he put his mouth on her neck; he followed her when she tried to get away; and he came to her house and knocked loudly on the door. All of these actions by Troncalli were “unwanted, uninvited, and unwarranted intrusions upon the plaintiff’s seclusion and solitude,” in the words of her complaint. This type of invasion of privacy was characterized in Cabaniss v. Hipsley, 114 Ga. App. 367, 371 (1) (151 SE2d 496) (1966), as “[intrusion upon the plaintiff’s seclusion or solitude, or into his private affairs.”

In Yarbray v. Southern Bell Tel. &c. Co., 261 Ga. 703, 704 (409 SE2d 835) (1991), our Supreme Court pointed out that “[t]he ‘unreasonable intrusion’ aspect of the invasion of privacy involves a prying or intrusion, which would be offensive or objectionable to a reasonable person, into a person’s private concerns.” (Citations omitted.) Id. at 705. In Yarbray, the Court recognized that even “ ‘[h]ighly personal questions or demands by a person in authority may be regarded as an intrusion on psychological solitude or integrity and hence an invasion of privacy.’ ” (Citation omitted.) Id. at 705.

In this case, there was no error in the trial court’s denial of Troncalli’s motion for directed verdict on this claim, in light of the evidence of Troncalli’s behavior. There was evidence that Troncalli’s actions constituted an invasion of Jones’ privacy, in that the actions were an unreasonable, offensive intrusion into her seclusion and solitude.

3. Troncalli contends that the trial court erred in denying his motion for directed verdict on Jones’ claim of intentional infliction of emotional distress. He argues that his actions did not rise to the level of egregiousness necessary to maintain a claim of this nature. We do not agree.

“A plaintiff must prove the following elements in order to recover for intentional infliction of emotional distress: (1) intentional or reckless conduct (2) which is extreme and outrageous and (3) caused the emotional distress (4) which is severe.” Trimble v. Circuit City Stores, 220 Ga. App. 498, 499 (469 SE2d 776) (1996).

Although the existence of a special relationship in which one person has control over another, such as the employer-employee relationship, may produce the requisite outrageousness, the existence of the employer/employee relationship is not dispositive.

Whether a claim rises to the requisite level of outrageousness and egregiousness to sustain a claim for intentional infliction of emotional distress is a question of law. If the evidence shows that reasonable persons might find the presence of extreme and outrageous conduct and resulting severe emotional distress, the jury then must find the facts and make its own determination. To support the emotional distress allegation . . . [the] conduct must have been so abusive or obscene as naturally to humiliate, embarrass, frighten, or extremely outrage [Jones].

(Citations and punctuation omitted.) Mears v. Gulfstream Aerospace Corp., 225 Ga. App. 636, 640 (2) (b) (484 SE2d 659) (1997). Nevertheless, “[m]ere tasteless, rude or insulting social conduct will not give rise to such a claim.” Id. at 641. Here, we conclude that the evidence was sufficient to survive the motion for directed verdict, because a jury could reasonably find that Troncalli’s conduct towards Jones was outrageous and extreme, rather than merely rude or insulting. Compare Hendrix v. Phillips, 207 Ga. App. 394, 395 (1) (428 SE2d 91) (1993) (no prima facie case of intentional infliction of emotional distress where conduct was simply tasteless and rude). Jones’ severe emotional distress was the natural by-product of his actions. See generally Sevcech v. Ingles Markets, 222 Ga. App. 221, 223 (3) (474 SE2d 4) (1996).

4. Finally, Troncalli argues that the trial court erred in denying his motion in limine regarding prior similar acts. Specifically, Troncalli argues that testimony from Paula Head and Tamara Roberts was improperly admitted at trial. Although Troncalli preserved his argument regarding Head’s testimony, he waived his argument regarding Roberts’ testimony. Because he waived any argument regarding Roberts’ testimony, we will address his argument only with respect to Head’s testimony.

Before trial, the court held a hearing on Troncalli’s motion and concluded that Troncalli’s acts toward Head were sufficiently similar to those against Jones to show a bent of mind or course of conduct. At trial, Head testified that in November 1995, Troncalli began behaving toward her in a sexually inappropriate manner. She stated that Troncalli asked her to let him see between her legs; that he touched her breasts without her consent; that he made unwelcome advances; and that she filed a lawsuit against him.

Troncalli argues that this evidence was unduly prejudicial and improperly bolstered Jones’ case for punitive damages. “The admission or exclusion of evidence on the ground of relevance lies within the sound discretion of the trial court. [Cit.]” Whorton v. Boatwright, 233 Ga. App. 369, 370 (504 SE2d 216) (1998). In this case we find no abuse of the trial court’s discretion.

“The general character of the parties and especially their conduct in other transactions are irrelevant matter unless the nature of the action involves such character and renders necessary or proper the investigation of such conduct.” OCGA § 24-2-2. “However, such testimony may be admitted if relevant to an issue in the case and if the evidence does not place too great a danger of undue consumption of time, confusion of issues, undue prejudice or unfair surprise. [Cits.]” (Punctuation omitted.) Dimarco’s, Inc. v. Neidlinger, 207 Ga. App. 526, 527 (1) (428 SE2d 431) (1993). For instance, “[i]n cases involving the intentional torts of assault and battery, evidence of prior violent or peaceable conduct by a party has been held to be admissible when relevant to an issue in the case.” Id. Furthermore,

[s]imilar acts are admissible in evidence, if committed or proposed at or about the same time, and when the same motive may reasonably be supposed to exist, with a view to establish the intent of the defendant in respect to the matters charged against him in the complaint. Intent, good faith, motive, and other such matters relating to the state of a person’s mind are usually not easily susceptible of direct proof. But frequently the state of mind accompanying the doing of an act is illustrated by other acts of a similar nature, done or proposed by the defendant in such a way as to indicate a general practice or course of conduct, or as to display motive, knowledge, intent, good faith, bad faith, and a variety of other such things.

(Citations and punctuation omitted.) John W. Rooker & Assoc. v. Wilen Mfg. Co., 211 Ga. App. 519, 520 (439 SE2d 740) (1993). In this case, there was no error in the trial court’s denial of the motion in limine because the evidence was admissible to show intent, motive and bent of mind.

For this reason, we also reject Troncalli’s argument that this evidence improperly bolstered Jones’ claim for punitive damages. In Webster v. Boyett, 269 Ga. 191, 195 (1) (496 SE2d 459) (1998), our Supreme Court examined the propriety of the trial court’s prohibition of evidence of the defendant’s prior DUI conviction during the liability phase of a personal injury trial in which the plaintiff sought punitive damages. The question in Webster was whether the evidence of the similar acts was relevant in determining liability for punitive damages and, if so, the proper procedure to be followed in handling the admission of the evidence.

Decided March 15,1999.

Bach, Hulsey & Carver, John C. Bach, Robert J. Hulsey, for appellant.

Gray & Gilliland, David S. Currie, for appellee.

The Supreme Court recognized the potentially prejudicial effect that evidence of prior acts could have on a jury during the liability portion of the trial, but declined to enunciate a bright-line rule. Instead the Supreme Court concluded:

the best way to guarantee a fair trial and ensure judicial economy is to continue to give the trial judge discretion on when to admit the evidence of prior and subsequent acts. The general rule is that trial judges may exercise discretion in excluding relevant evidence if its probative value is substantially outweighed by the risk that its admission will confuse the issue, mislead the jury, or create substantial danger of undue prejudice. In making their decision, trial courts should consider the potential prejudice to the parties, the complexity of issues and the potential for jury confusion, and the relative convenience, economy, or delay that may result.

(Footnotes omitted.) Webster v. Boyett, 269 Ga. at 195.

Here, Jones’ case was based on allegations that Troncalli’s acts were intentional. Particularly in light of Troncalli’s denial of Jones’ account of his actions, the prior acts were relevant to establish bent of mind and course of conduct. In addition, this evidence was relevant to establish liability for punitive damages in the first phase of the trial. Accordingly, the trial court did not abuse its discretion in allowing the evidence.

Judgment reversed.

Beasley, P. J, and Ruffin, J., concur.

       Several months before trial, Troncalli filed a motion to dismiss for failure to state a claim in which he raised the same arguments regarding stalking which he raises here; the trial court denied the motion.

       A brief overview of other states illustrates the different methods of handling civil actions for stalking. In California, Civil Code § 1708.7 specifically creates the tort of stalking. The tort arises after a defendant engages in a pattern of conduct “the intent of which was to follow, alarm, or harass the plaintiff” § 1708.7 (a) (1). In Rumbauskas v. Cantor, 649 A2d 853 (N. J. 1994), the court discussed stalking as constituting the “intrusion on seclusion” type of an invasion of privacy claim. See also Kanzler v. Renner, 937 P2d 1337, 1345 (Wyo. 1997) (Thomas, J., concurring specially), which recognizes the problems in carefully crafting the parameters of this potentially volatile tort.

       Because of the physical nature of some of Troncalli’s intrusions, we are not presented here with the issue illustrated by Kobeck v. Nabisco, Inc., 166 Ga. App. 652, 654 (2) (305 SE2d 183) (1983), in which this Court stated that in order to proceed under the theory of intrusion into plaintiff’s solitude, Georgia law requires that the intrusion be “physical, analogous to a trespass.” (Punctuation omitted; emphasis in original.) Id.

       Troncalli did not argue that Roberts’ testimony should be excluded in his motion in limine, nor did he raise this argument at trial.


author: McMURRAY, Presiding Judge.

text:
    A98A1707.
    COTTON v. THE STATE.
    (513 SE2d 763)
   McMURRAY, Presiding Judge.

Defendant Cotton appeals his conviction of the offenses of trafficking in cocaine, possession of marijuana with intent to distribute, driving under the influence of drugs, and following too closely. The sole enumeration of error maintains that the trial court erred by failing to suppress and exclude from admission at trial “evidence that was seized in violation of the Fourth and Fifth Amendments to the United States Constitution and the correlative provisions of the 1983 Constitution of the State of Georgia.” Held:

A Georgia State Patrol Trooper on patrol on 1-85 in Jackson County was contacted via citizens band radio and told of a motorist in a Honda who “was smoking a joint.” The officer proceeded to overtake the described vehicle and found it approximately five feet behind a truck traveling on the interstate highway. A traffic stop was initiated and the Honda pulled over. The trooper exited his vehicle and approached the Honda. When defendant rolled down his window, the trooper immediately noticed a strong odor of marijuana and could see smoke. Defendant complied with the trooper’s request that he step out of the vehicle and produce his driver’s license and proof of insurance. The trooper told defendant that he had pulled him over because he had been reported to have been smoking a joint in the vehicle on the road and because he was following the truck very closely. Defendant denied smoking marijuana, denied possession of contraband, and denied consent to search the vehicle. The trooper asked defendant to sit in the rear seat of his patrol car, but first patted him down and asked him to empty his pockets, revealing that defendant had approximately $2,100 in his pocket. The trooper informed defendant that he was going to call a drug dog whereupon defendant told the trooper that “[t] here’s a little in a bag in the back seat. . .” and consented to a search of his vehicle. The search of the car revealed cocaine, marijuana, and an additional approximately $4,000 of currency.

The stop of defendant’s vehicle was authorized by the trooper’s observation of the traffic offense of following too close. While the trooper acknowledged that he would not have stopped defendant but for the tip that defendant had been smoking a joint, and defendant has argued that the basis for the stop was pretextual, an officer’s ulterior motive is of no consequence under the holding in Whren v. United States, 517 U. S. 806 (116 SC 1769, 135 LE2d 89). Since the officer had observed defendant violate a traffic law, the stop did not violate the Fourth Amendment or the Georgia Constitution. State v. Kirbabas, 232 Ga. App. 474, 480-481 (502 SE2d 314). See also Welborn v. State, 232 Ga. App. 837, 839 (2) (503 SE2d 85); State v. Bowen, 231 Ga. App. 95 (498 SE2d 570); Taylor v. State, 230 Ga. App. 749, 750 (1) (b) (498 SE2d 113); Buffington v. State, 229 Ga. App. 450, 451 (494 SE2d 272).

The application of Whren, which was decided subsequent to the events at issue in this case, does not result in any violation of ex post facto constitutional provisions. As Whren did not result from a change or unforeseeable judicial enlargement of a criminal statute the ex post facto provision is inapplicable. Moore v. Ray, 269 Ga. 457 (499 SE2d 636); Lloyd v. State, 226 Ga. App. 401, 403 (5) (487 SE2d 44).

After stopping defendant’s car, the tip received by the trooper concerning illegal drug use was corroborated by the odor of marijuana coming from defendant’s car. This provided a reasonable basis for the trooper’s suspicions that marijuana was present in the car and that defendant was driving under the influence of marijuana. Taylor v. State, 230 Ga. App. 751 (1) (c), supra. Due to these suspicions, the traffic stop became a brief investigative stop for a possible drug violation. Roundtree v. State, 213 Ga. App. 793, 794 (446 SE2d 204). Having effected a valid traffic stop, the trooper was authorized to request consent to search defendant’s vehicle. Taylor v. State, 230 Ga. App. 751 (1) (c), supra; Gamble v. State, 223 Ga. App. 653, 656 (3) (478 SE2d 455).

Before placing defendant in his patrol car, the trooper patted him down in order to check for weapons. The trooper also asked defendant to empty his pockets. This resulted in the discovery that defendant had approximately $2,100 on his person. The evidence shows no duress and that defendant voluntarily consented to relinquish the contents of his pockets. Brown v. State, 211 Ga. App. 658, 659 (440 SE2d 253).

The trial court suppressed evidence as to defendant’s statement granting consent for the search of his vehicle after applying the “reasonable person” test under State v. Wintker, 223 Ga. App. 65, 68 (476 SE2d 835). Wintker is predicated upon the recognition that “ ‘in custody’ for Miranda purposes is broader than ‘under arrest.’ ” Id. at 68. The trial court determined that after defendant was placed in the back of the trooper’s car, the defendant was “in custody” for Miranda purposes even though he was not “under arrest.” The trial court’s conclusion that a reasonable person in defendant’s circumstances would not feel that he was at liberty to terminate any interrogation and leave was based on the officer’s retention of possession of defendant’s driver’s license and above an average amount of cash while placing him in the back of the patrol car to await the arrival of a drug dog. The trial court determined that “[t]he trooper should have read the defendant his Miranda warnings at this time and any statement made by the defendant should be suppressed.”

Decided March 5,1999

Reconsideration denied March 16,1999

Kenneth W. Krontz, for appellant.

Robert W. Lavender, District Attorney, James D. Duffy, Assistant District Attorney, for appellee.

Defendant unnecessarily argues that his consent to search his vehicle given while seated in the back of the patrol car was obtained in violation of his rights under Miranda v. Arizona, 384 U. S. 436 (86 SC 1602, 16 LE2d 694). This was established by the trial court’s order and is the law of the case.

However, defendant’s further argument that the Miranda violation warrants suppression of the physical evidence found in the automobile was rejected by the trial court, a conclusion with which we agree. Although the actual words spoken by defendant to give consent are suppressed under a Fifth Amendment analysis, that exclusionary rule does not apply to the fruits of the voluntary but Miranda tainted statement. Wilson v. Zant, 249 Ga. 373, 376-378 (1) (290 SE2d 442), overruled on other grounds, Morgan v. State, 267 Ga. 203, 204 (2) (476 SE2d 747). See also Livingston v. State, 264 Ga. 402, 407-408 (6) (444 SE2d 748); Buttersworth v. State, 260 Ga. 795, 797 (2) (400 SE2d 908).

Nor do we find merit in defendant’s reliance upon the 1983 Constitution of the State of Georgia, Art. I, Sec. I, Par. XVI, which provides that: “No person shall be compelled to give testimony tending in any manner to be self-incriminating.” The statutory embodiment of this provision which has been recognized as providing broader protection than the Fifth Amendment is OCGA § 24-9-20. However, that protection is not unbounded, and the provision has been construed to limit the State from forcing the individual to perform some act which will incriminate him or her. Creamer v. State, 229 Ga. 511, 515-517 (3) (192 SE2d 350). The grant of consent for the search of defendant’s automobile was neither incriminating or exculpatory. Defendant was not required to do any act in connection with the search which was merely a taking of evidence from him. The trial court did not err in denying defendant’s motion to suppress evidence.

Judgment affirmed.

Blackburn and Eldridge, JJ, concur.


author: Beasley, Presiding Judge.

text:
    A98A1745.
    BEVERLY v. J. H. HARVEY COMPANY, INC.
    (515 SE2d 404)
   Beasley, Presiding Judge.

After Judy Beverly was struck by an unidentified individual running down the aisle of a grocery store owned by J. H. Harvey Company, Inc., she and her husband sued Harvey for personal injury and loss of consortium. Harvey moved for and won summary judgment, asserting there was insufficient evidence that the unidentified individual was one of its employees acting within the scope of his employment.

“[A]ll inferences, and all ambiguities, and all doubts, are resolved against the movant and in favor of the party opposing the grant of summary judgment. [And] the respondent’s proof is treated with indulgence.” Defendant is entitled to summary judgment if it can show the court that “any essential element, under any theory of recovery, is missing and incapable of proof.” With that in tow, the question is whether there is a genuine issue of material fact to be resolved by a jury. Since the evidence thus far would not compel the direction of a verdict, it does not warrant summary judgment.

Plaintiff shopper’s evidence is that two young men who appeared from their attire to be employees were running to the back of the store when the front runner “caught [her] right foot and twisted [her] around” as she was stopped with her cart on an aisle. She felt her neck and back pop, and she felt sick in the stomach. The second runner, a young man she recognized as a neighbor and whom she knew later to be Eric Weaver, was asking the first one why he was late. Both kept going and ran into an area restricted to employees. The next day when the shopper reported the incident to the assistant manager, he said he “had a pretty good idea of who it was,” but the injury-inflicting first runner has not been identified. The assistant manager who took the report and recorded the incident did not try to determine who the person was but simply reported it to the store manager. When Beverly talked to Weaver, he remembered the two fellows running. He also indicated fear he would get into trouble.

Southern Bell Tel. &c. Co. v. Conyers Toyota held that it was a jury question whether an employee exiting his employer’s premises after finishing his job remained within the scope of employment for tort law purposes. The same is true, as shown from the following, for coming on the job:

Ordinarily, the question of whether or not the act of a servant was done in the scope of his employment is for the jury. [Cit.] It has repeatedly been held that “ ‘the period of employment generally includes a reasonable time for ingress to and egress from the place of work, while on the employer’s premises.’ (Cits.)” [Cit.] These holdings are predicated on the rationale that until the employee has actually departed the premises, he has not “started traveling a route of (his) choosing wholly disconnected with (his) employment.” [Cit.] While we recognize that these holdings have arisen in the context of workers’ compensation rather than tort claims, the Georgia Supreme Court has held: “ ‘[I]n determining whether or not the relationship of master and servant prevails in a compensation case, the same principles that exist under the common law obtain.’ (Cit.)” [Cit.]

It is reasonable to infer that the front runner was either running to clock in or running to the back of the store to do some aspect of his job. In. the latter instance, there would be no question that he was moving in the course and scope of his employment. In the former instance, a jury could find that he was hurrying through the employer’s premises to clock in because he was late. Clocking-in is an activity required by an employer. A jury would not be foreclosed from finding that the runner who allegedly caused the injury of which the shopper complains was an employee acting within the scope and course of his employment.

With respect to evidence of store policy that employees not run in the store, such would not relieve the employer of liability. “[S]o long as the servant is acting within the scope of his employment, the employer is liable, though the negligent act . . . was contrary to his instructions.” The store owner or occupier owes a duty to invitees “to exercise ordinary care in keeping the premises . . . safe.” In this regard, it is liable for torts committed by its servants “in the prosecution and within the scope of [its] business, whether the same are committed by negligence or voluntarily.” “[I]t makes no difference that the master did not authorize [a particular act], or even know of the servant’s act or neglect, or even if he disapproved or forbade it, he is equally liable, if the act be done in the course of his servant’s employment.”

Decided February 22,1999

Reconsideration denied March 16,1999

Runes & Runes, G. G. Joseph Runes, Jr., Fred W. Rigdon, Jr., for appellants.

Clyatt, Clyatt, Wallace & DeVaughn, Robert M. Clyatt, Carl G. Fulp III, for appellee.

To be compared fact-wise are two cases cited above for general principles of law. The facts in each case differ in significant ways so as not to be controlling.* In Sellers there was no competent evidence that the van which struck plaintiff’s vehicle belonged to defendant or that the unknown person driving it was defendant’s agent or employee. Here the alleged employee was the colliding object directly. His clothing, the statement being made to him, the place in which he was running (employer’s store), the location to which he ran (employee-only area), the identity and employment status of the person running with him, and the assistant manager’s statement to the plaintiff all constitute evidence supporting a reasonable deduction that the person was defendant’s employee.

McCoy likewise involved a fatal paucity of evidence that the colliding truck belonged to defendant and that the driver was defendant’s employee. It was considered too great a leap to allow an inference that distinctive insignia of a certain company on a truck proved ownership of the truck or that it was being operated by that company’s employee. No admissions were made by the defendant company, the driver wore no clothing identifying him as a company employee, and the company showed that its insignia on a truck could mean it was not sufficiently obliterated when such vehicle was sold.

Defendant J. H. Harvey Company, Inc. was not entitled to summary judgment.

Judgment reversed.

Ruffin, J., concurs. Andrews, J., concurs in judgment only.

       (Citations and punctuation omitted.) McCoy v. Southern Bell Tel. &c. Co., 172 Ga. App. 26, 27 (2) (322 SE2d 76) (1984).

        Sellers v. Air Therm Co., 231 Ga. App. 305, 307 (498 SE2d 167) (1998).

       OCGA § 9-11-56.

        Sellers, supra.

       190 Ga. App. 792 (1) (380 SE2d 296) (1989).

       Id. at 793. See also McCranie v. Langdale Ford Co., 176 Ga. App. 281, 282 (335 SE2d 667) (1985).

       (Citations, punctuation and emphasis omitted.) Bacon v. News-Press &c. Co., 188 Ga. App. 703, 705 (373 SE2d 797) (1988).

       OCGA § 51-3-1.

       OCGA § 51-2-2; Allen Kane’s Major Dodge v. Barnes, 243 Ga. 776, 777 (257 SE2d 186) (1979); Reynolds v. L & L Mgmt., 228 Ga. App. 611, 612 (1) (492 SE2d 347) (1997) (master liable for negligent or even wilful act done in prosecution of master’s business).

       (Citation and punctuation omitted.) Crawford v. Johnson, 227 Ga. App. 548, 553 (2) (c) (489 SE2d 552) (1997).

       Of course, the rules with respect to summary judgment adjudication set out in the landmark case of Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991), do apply and are followed here.

       Similar deficiencies of identification were present in Burns v. United Parcel Svc., 135 Ga. App. 890 (219 SE2d 624) (1975), and cits.


author: Smith, Judge.

text:
    A98A2215.
    JONES v. PHILLIPS.
    (513 SE2d 241)
   Smith, Judge.

This is the second appearance of this case before this court. In Jones v. Phillips, 227 Ga. App. 94 (488 SE2d 692) (1997), we affirmed the trial court’s ruling permanently enjoining Jones from foreclosing on Phillips’s property. When the case returned to the Superior Court of Chatham County, Jones sought to recover on the note secured by the security deed that was previously ruled unenforceable. Cross-motions for summary judgment were filed, and the trial court granted Phillips’s motion, finding that the undisputed fact of nondelivery of the note to Jones barred her from enforcing it. Jones brings this appeal. We find no error and affirm.

The facts are fully set out in our opinion in Jones v. Phillips, supra. Briefly, at the time the loan was made, Phillips was sharing a household with Jones’s son, J. Glenn Davis, and she “may have been” his common law spouse. Id. In 1991, Jones apparently gave $90,000 to her son, a portion of which was used to purchase a house that Phillips and her siblings had inherited. The remainder of the loan was apparently used for repairs to that home. Id. Davis had a lawyer draft a note and security deed several months later, but these documents were never witnessed, notarized, recorded, or delivered to Jones. Id. Davis thereafter paid $2,000 to Jones, in the form of two checks drawn on his own bank account. Jones never requested any further payment until after Phillips filed for a divorce from Davis. Jones instituted the foreclosure proceedings, and Phillips filed the action seeking to enjoin the foreclosure that eventually resulted in our opinion in Jones, supra.

After our affirmance of the superior court’s ruling permanently enjoining the foreclosure on the ground that the deed was not adequately executed or delivered and had not conveyed a property interest to Jones, Jones sought recovery on her counterclaim, which sought “money allegedly due on a promissory note that accompanied the debt deed.” Phillips moved for summary judgment, contending that the note, like the security deed, had not been delivered to Jones and was therefore unenforceable. Jones did not respond to the motion, but filed her cross-motion for summary judgment, on the ground that Phillips had admitted her debt on the note and her intention at the time she signed it to repay it.

The trial court found that the note, like the security deed, was invalid, having never been “issued” within the meaning of OCGA § 11-3-105.

1. Jones raises two enumerations of error. We agree with Phillips that Jones’s argument is not easily decipherable, nor does it appear to follow the enumeration of errors or appear to be supported by citation to the record, argument, or citation to authority, as required by Court of Appeals Rule 27. Phillips has made an effort to respond to Jones’s brief, however, and we will attempt to decide this case on the merits.

2. No dispute exists that the note was never delivered to Jones. Jones admitted this fact on her deposition. OCGA § 11-3-105 provides, in pertinent part:

(a) Issue means the first delivery of an instrument by the maker or drawer, whether to a holder or nonholder, for the purpose of giving rights on the instrument to any person, (b) An unissued instrument, or an unissued incomplete instrument that is completed, is binding on the maker or drawer, but nonissuance is a defense.

The trial court relied upon this Code section in finding that “issuance — or delivery — of a note is a prerequisite to its enforceability,” and that since this note was never delivered, Jones could not enforce it.

Contrary to Jones’s apparent argument, a different result is not required by evidence either that several payments were made or that when Phillips signed the note, she intended to repay it. First, the two payments were not made by Phillips but by Davis. Second, Phillips testified that she intended to repay the note when she signed it, but that before the note was delivered Davis informed her that Jones’s loan had been repaid in another manner. And third, Phillips’s acknowledgment that she signed the note does not necessarily entitle Jones to repayment on it, just as Phillips’s signature on the security deed did not authorize Jones to foreclose on the property. Delivery must be shown in order to recover on a note, even when the maker of a note admits having executed it. “Once the maker of a promissory note admits having executed the note, production of the instrument entitles a holder to thé judgment sought unless the maker establishes a defense.” (Citation and punctuation omitted; emphasis supplied.) Commonwealth Land Title Ins. Co. v. Miller, 195 Ga. App. 830, 833 (395 SE2d 243) (1990). See Sawgrass Builders v. Realty Cooperative, 172 Ga. App. 324-325 (1) (323 SE2d 243) (1984) (when signature is admitted, production of check, a negotiable instrument, entitles holder to recover barring defense).

3. We cannot consider Jones’s contention that the trial court should have granted her motion for summary judgment on the theory of money had and received, because this ground was not asserted below. See Professional Practices Comm. v. Brewer, 219 Ga. App. 730, 732 (2) (466 SE2d 651) (1995).

Decided February 26,1999

Reconsideration denied March 16,1999

M. Francis Stubbs, for appellant.

Duffy, Feemster & Lewis, Dwight T. Feemster, for appellee.

Judgment affirmed.

Johnson, C. J., and Barnes, J., concur.

       The note was allegedly repaid by Davis through a timber sale in Tattnall County.


text:
    A97A2177.
    MIKELL v. THE STATE.
    (514 SE2d 680)
    Decided March 16,1999.

      Wiseman, Blackburn & Futrell, Michael L. Edwards, C. Jackson Burch, for appellant.
   Pope, Presiding Judge.

Samuel Mikell, Jr. was convicted of selling cocaine, distributing cocaine within 1,000 feet of a public housing project, and obstructing a police officer. The court sentenced Mikell to life imprisonment for the sale of cocaine, 40 years in prison for the cocaine distribution within 1,000 feet of a public housing project, and 12 months for the obstruction. Mikell appealed to this Court, and we affirmed the convictions and sentences in Mikell v. State, 231 Ga. App. 85 (498 SE2d 531) (1998).

The Supreme Court granted certiorari and reversed our finding that the trial court was required to apply the recidivist provision of OCGA § 17-10-7 (a) and sentence Mikell to the maximum term of 40 years for distributing cocaine within 1,000 feet of a public housing project for this, his second, conviction under OCGA § 16-13-32.5 (b). Instead, the Supreme Court held, the trial court was authorized to exercise discretion under OCGA § 16-13-32.5 (c) (2) and impose a sentence of five to forty years. Mikell v. State, 270 Ga. 467 (510 SE2d 523) (1999). Accordingly, our ruling as to the sentence imposed for the conviction of distributing cocaine within 1,000 feet of a public housing project is vacated, and the judgment of the Supreme Court is made the judgment of this Court. The case is remanded to the trial court for a new sentencing hearing.

Sentence vacated and case remanded for resentencing.

Johnson, C. J., and Blackburn, J., concur.

Spencer Lawton, Jr., District Attorney, Lori E. Loncon, Assistant District Attorney, for appellee.


text:
    A98A1698.
    DOW CHEMICAL COMPANY v. OGLETREE, DEAKINS, NASH, SMOAK & STEWART.
    (514 SE2d 836)
   Ruffin, Judge.

Dow Chemical Company (Dow) sued Ogletree, Deakins, Nash, Smoak & Stewart (Ogletree) for legal malpractice, alleging that Ogle-tree negligently handled a federal lawsuit that resulted in a $2,450,000 judgment against Dow. Among other things, Dow alleged that Ogletree negligently failed to file a timely appeal of the jury’s verdict. Both parties moved for partial summary judgment on the issue of Ogletree’s liability for its failure to file a timely appeal. The trial court granted Ogletree’s motion for partial summary judgment on this issue and denied Dow’s motion. For reasons discussed below, we affirm.

“A professional malpractice action is merely a professional negligence action. To state a cause of action for negligence in Georgia, the following elements are essential: (1) A legal duty to conform to a standard of conduct raised by the law for the protection of others against unreasonable risks of harm; (2) a breach of this standard; (3) a legally attributable causal connection between the conduct and the resulting injury; and, (4) some loss or damage flowing to the plaintiff’s legally protected interest as a result of the alleged breach of the legal duty. In particular, this court has held that in a suit for legal malpractice, proof that the attorney’s negligence proximately caused the client’s harm is necessary for recovery.” (Citations and punctuation omitted.) Whitehead v. Cuffie, 185 Ga. App. 351, 352 (364 SE2d 87) (1987); see also OCGA § 51-1-8. Faced with such a claim, a defendant is entitled to favorable resolution summarily if he can show that the record reveals “that there is no evidence sufficient to create a jury issue on at least one essential element of plaintiff’s case.” Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991); OCGA § 9-11-56.

McMann v. Mockler, 233 Ga. App. 279, 280 (1) (503 SE2d 894) (1998).

The relevant facts are as follows. In October 1988, several plaintiffs filed a diversity action against Dow in the United States District Court for the Northern District of Georgia, Mr. and Mrs. Jesse Pinion, Maurice Daffron & Shirley Daffron v. Dow Chem. U.S.A., Civil Action No. 4:88-0261-HLM. The complaint alleged that Dow operated a chemical plant on land adjacent to plaintiffs’ farm, and that toxic substances from the plant leaked into the ground, contaminating the soil and groundwater on plaintiffs’ property.

Ogletree represented Dow in the Pinion case, which was tried to a jury in January 1990. The evidence at trial showed that Dow built its latex manufacturing plant in Dalton, Georgia in 1966. The manufacturing process generated wastewater containing latex solids, which had to be removed from the water before the water could be discharged. Dow dug unlined coagulation ponds in the clay soil and stored wastewater in the ponds to let the latex solids settle to the bottom. Each of these coagulation ponds was approximately the size of a football field. Periodically, Dow dredged the ponds to remove the settled latex solids, which were dried and deposited in a landfill on Dow’s property. This landfill was unlined and uncapped and was located on a higher elevation than Dow’s plant. Over time, hazardous substances seeped from the unlined coagulation ponds and landfill into the ground and migrated underground onto the plaintiffs’ property, which was lower in elevation than Dow’s property. The plaintiffs first detected hazardous substances on their property in April 1987.

On January 26, 1990, the jury returned a verdict in favor of the plaintiffs for $450,000 in compensatory damages and $2 million in punitive damages. Judgment was entered on the verdict on January 29, 1990. With plaintiffs’ consent, Ogletree then obtained an order from the district court extending the time for filing post-trial motions until March 8, 1990. On March 8, 1990, Dow filed a motion for judgment notwithstanding the verdict or, alternatively, for a new trial. The district court denied this motion on May 3, 1990.

Dow filed a notice of appeal to the Eleventh Circuit Court of Appeals on May 25, 1990. On April 19, 1991, the Eleventh Circuit dismissed Dow’s appeal for failure to file a notice of appeal within 30 days after the entry of the original judgment. Pinion v. Dow Chem., U.S.A., 928 F2d 1522 (11th Cir. 1991). The Eleventh Circuit held that the district court did not have the authority to extend the ten-day period for filing post-trial motions; therefore, the post-trial motions filed by Dow were untimely and did not toll the time for filing a notice of appeal. Id. at 1525-1526.

On October 28, 1993, Dow filed the present action against Ogle-tree in Fulton County Superior Court, alleging that Ogletree committed malpractice in various ways in its handling of the Pinion case. Both parties filed motions for partial summary judgment with respect to the issue of whether Ogletree may be liable for failure to timely file an appeal of the jury’s verdict. The trial court granted Ogletree’s motion for partial summary judgment and denied Dow’s motion. Dow appeals both of these rulings.

1. We havé previously held that

[i]n the context of a legal malpractice case in which the negligence alleged is the failure of an attorney to file an appeal, proximate cause may be established by showing that the appellate court would have reversed and that, upon remand to the lower court, the client would have obtained a more favorable result.

(Punctuation omitted.) McMann, supra at 280-281. See also Jaraysi v. Soloway, 215 Ga. App. 531, 532 (1) (451 SE2d 521) (1994). On appeal, Dow urges us to abandon the requirement that a plaintiff show it would have prevailed on appeal. Instead, Dow argues that the defendant in a legal malpractice case should bear the burden of proving that an appeal would have been unsuccessful.

It may be true, as Dow contends, that it is difficult for a plaintiff in a malpractice action to show how an appellate court would have ruled on a legal question. Nevertheless, we cannot ignore our Supreme Court’s requirement that “[i]n a legal malpractice action, the plaintiff must establish . . . that [the attorney’s] negligence was the proximate cause of damage to the plaintiff.” (Punctuation omitted.) Allen v. Lefkoff, Duncan, Grimes & Dermer, P.C., 265 Ga. 374, 375 (2) (a) (453 SE2d 719) (1995). Placing the burden on the defendant to show that an appeal would not have been successful would violate our Supreme Court’s holding in Lau’s Corp., supra, that

[a] defendant who will not bear the burden of proof at trial need not affirmatively disprove the nonmoving party’s case; instead, the burden on the moving party may be discharged by pointing out by reference to the affidavits, depositions and other documents in the record that there is an absence of evidence to support the nonmoving party’s case. If the moving party discharges this burden, the nonmoving party cannot rest on its pleadings, but rather must point to specific evidence giving rise to a triable issue.

Accordingly, we decline to place the burden on a defendant in a malpractice case to show that an appeal would not have been successful.

Alternatively, Dow urges that we adopt a “lost opportunity” standard, under which a plaintiff may sue its attorney for the lost opportunity to appeal, without regard to whether the appeal would have been successful. It is possible that the mere filing of an appeal, although meritless, could create uncertainty in the mind of the appellee and thus induce him to settle for a lesser amount, and that the failure to file such an appeal could damage the appellant by depriving him of the opportunity to settle. However, it is highly questionable whether such speculative damages can properly serve as the basis for a malpractice action. See generally McMann, supra at 281 (1) (“Failure to file an appeal which would be unsuccessful on the merits or frivolous would not harm the losing litigant but instead would save the litigant time, money, and anguish.”). Moreover, Dow’s brief fails to mention any evidence showing that it was in fact damaged by such lost opportunity in this case. Accordingly, it is unnecessary to consider whether a “lost opportunity’ analysis may be applicable in a legal malpractice case regarding the failure to file an appeal.

2. Dow next asserts that the trial court erred in refusing to allow it to present expert testimony from former United States District Court Judge Sidney O. Smith regarding Smith’s opinion that an appeal to the Eleventh Circuit would likely have resulted in reversal of the $2 million punitive damages award. This assertion is without merit.

“The question of whether an appeal would have been successful is a question of law, exclusively within the province of judges.” (Punctuation omitted.) Hipple v. Brick, 202 Ga. App. 571, 572 (1) (415 SE2d 182) (1992); see also Fine & Block v. Evans, 201 Ga. App. 294, 295 (1) (411 SE2d 73) (1991); Jaraysi, supra. “A matter of law is not the subject, or a proper subject, of.expert testimony.” 32 CJS Evidence, § 453, p. 92 (1964). It would be improper for the trial court, or for this Court, to rely upon the opinion of an “expert” as to the probable outcome of an appeal; rather, it is the duty of the trial court and this Court to apply the relevant law to determine whether the appeal would have been successful. See Fine & Block, supra (rejecting proposition that likelihood of success on appeal is matter to be decided by trier of fact with aid of expert testimony). Accordingly, the trial court did not err in refusing to allow opinion testimony regarding the likely outcome of an appeal.

3. Finally, Dow contends that, if Ogletree had properly appealed, the Eleventh Circuit would have reversed the denial of its motion for j.n.o.v. with respect to the award of punitive damages. In considering this question, we apply the same standard of review that would have been applied by the Eleventh Circuit:

On motions for . . . judgment notwithstanding the verdict, the Court should consider all the evidence — not just that evidence which supports the non-mover’s case — but in the light and with all reasonable inferences most favorable to the party opposed to the motion. If the facts and inferences point so strongly and overwhelmingly in favor of one party that the Court believes that reasonable men could not arrive at a contrary verdict, granting of the motion [ ] is proper. On the other hand, if there is substantial evidence opposed to the motion['], that is, evidence of such quality and weight that reasonable and fair-minded men in the exercise of impartial judgment might reach different conclusions, the motion [] should be denied, and the case submitted to the jury. A mere scintilla of evidence is insufficient to present a question for the jury. The motion[ ] for . . . judgment n. o. v. should not be decided by which side has the better of the case, nor should [it] be granted only when there is a complete absence of probative facts to support a jury verdict. There must be a conflict in substantial evidence to create a jury question. However, it is the function of the jury as the traditional finder of the facts, and not the Court, to weigh conflicting evidence and inferences, and determine the credibility of witnesses.

(Punctuation omitted.) Watts v. Great A & P Tea Co., 842 F2d 307, 309-310 (11th Cir. 1988).

Because Pinion was a diversity action, the Eleventh Circuit would have applied Georgia law with respect to the availability of punitive damages. Wammock v. Celotex Corp., 835 F2d 818, 820 (11th Cir. 1988). “In a tort action in which there are aggravating circumstances, in either the act or the intention, the jury may give additional damages to deter the wrongdoer from repeating the trespass or as compensation for the wounded feelings of the plaintiff.” OCGA § 51-12-5 (a).

It is well established that that language means such damages cannot be imposed in any case unless there is willful misconduct, malice, fraud, wantonness, oppression, or that entire want of care which would raise the presumption of a conscious indifference to consequences. The latter expression (conscious indifference to consequences) relates to an intentional disregard of the rights of another, knowingly or willfully disregarding such rights.

(Punctuation omitted.) Read v. Benedict, 200 Ga. App. 4, 6-7 (2) (406 SE2d 488) (1991).

Whether the circumstances were sufficiently aggravating to authorize punitive damages is a jury question. Punitive damages may be recovered if the circumstances are such from which an inference of conscious indifference to the consequences and to the legal rights of others, or to the ordinary obligation of society might be drawn.

(Citation omitted; emphasis supplied.) Mr. Transmission v. Thompson, 173 Ga. App. 773, 775 (2) (328 SE2d 397) (1985).

Dr. Teitelbaum, a toxicologist, testified that the hazardous material on plaintiffs’ property included carbon tetrachloride, 1,1-Dichlo-roethelene, methylene chloride, chloroform, and 1,1,2-Trichloro-ethane. Teitelbaum testified that, in his opinion, anyone who lived on the plaintiffs’ property would have an increased risk for developing malignant and nonmalignant diseases such as cancer. According to Teitelbaum, the amount of these substances known to be present on plaintiffs’ property was sufficient to cause such diseases, based on foreseeable exposure over many years. He testified that it was unlikely the problem would be solved by the remediation plan proposed by Dow, which he described as “a very minimal effort considering the nature of the site.” In particular, he did not believe that enough test wells had been drilled on the plaintiffs’ property to be able to prepare an adequate remediation plan. Although he acknowledged that the state Environmental Protection Division had approved Dow’s remediation plan, he believed that it did not have adequate data or budget to do so.

Plaintiffs also presented the testimony of Dr. Richard Ellis, an environmental engineer with expertise in hazardous waste management. Ellis testified that, in his opinion, the high levels of contamination had arrived on the plaintiffs’ property fairly recently, probably between 1984 and 1987, carried by groundwater. He noted that, because the landfill and coagulation ponds were built on a higher elevation than the plaintiffs’ property, and water naturally flows downhill, it was foreseeable that contamination would migrate toward the plaintiffs’ property.

Dr. Ellis testified that, in the 1960s and 1970s, the technology was available to line coagulation ponds to prevent leakage. Indeed, he testified that Dow manufactured and marketed a liner material at the time, although it did not use it for its ponds. Although Ellis admitted that the standard industry practice at the time was to use unlined ponds, he testified that the state-of-the-art practice was to use lined ponds. He testified that using liners would not have prevented Dow from dredging the ponds to remove the solid latex.

Dr. Ellis also testified that Dow should have drilled simple monitoring wells next to the coagulation ponds, which would have detected the leakage from the coagulation ponds. He testified that this was a simple and well-known technology at the time the . ponds were in operation. Ellis testified that, in his opinion, Dow’s failure to install monitoring wells near the unlined ponds was unreasonable and not prudent.

Dr. Ellis also testified that the remediation plan prepared by Dow did not represent the best available technology and would allow contaminated groundwater to continue flowing onto the plaintiffs’ property. He noted that, at the time of trial, the landfill remained unlined and uncapped, allowing rainwater to percolate through the landfill and carry hazardous material into the groundwater, where it would proceed onto the plaintiffs’ property. Dow’s expert, Dr. Thomas Kwader, testified that “the [landfill] area is not a concern, an immediate concern at this time. We have a more, a higher priority concern. ... It is not as important as the contamination. We have migration off-site.” He admitted that nothing had been done to stop the seepage of 1,1-Dichloroethelene from the landfill. He also admitted that no deep wells had been drilled on the plaintiffs’ property to test whether the deep aquifers there had been contaminated, although “[i]f they were contaminated, it would be important.” He said no samples had been taken from plaintiffs’ property since August 1987. He admitted that he could not guarantee the property would be cleaned up 50 percent in 50 years.

Catherine Holmes, Dow’s plant manager at the time of trial, testified that there were no records showing exactly what substances had been stored in the coagulation ponds. She denied that Dow placed hazardous wastes in the pond, admitting that that would violate federal law. She said that the wastewater from the latex manufacturing process did not constitute hazardous waste, as defined under federal or state law, and that there was a distinction between hazardous materials and hazardous waste. However, Dow’s expert, Dr. Kwader, stated as follows in his deposition, which was admitted at trial: “Q. Did you come to a conclusion that they were storing hazardous waste? A. I wasn’t provided any chemical data of what was in the ponds, so no, I had not reached that conclusion at the second visit. Q. Have you reached that conclusion now? A. I believe there were hazardous wastes stored in these coagulation ponds.” Another of Dow’s experts, Dr. Christopher Teaf, testified that the substances found on plaintiffs’ property — 1,1-Dichloroethelene, chloroform, carbon tetrachloride, and methylene chloride — could be classified as hazardous wastes in certain circumstances. Plaintiff’s expert, Dr. Ellis, testified that 1,1-Dichloroethelene, carbon tetrachloride, and methylene chloride were classified as hazardous wastes by the Environmental Protection Agency.

Dr. Kwader admitted in his deposition that “[i]t would not be unexpected” to have seepage from unlined coagulation ponds. He admitted that, in the early 1980s, unlined ponds would not have been his first choice for the purpose they were being used by Dow. Rather, he would have recommended using an artificial membrane liner. In addition, he testified that “normally what we would do is to install some type of detection system underneath the pond to see if it were leaking.” Such a detection system would consist of a horizontal well or collection system. Although Kwader said that such systems were not widely known in 1980, they were known by some people, including himself.

Another of Dow’s expert witnesses, Edwin Barnhart, an environmental engineer, testified that, “[i]f I had an old plant from about 1978 or ’79 on, there was information around that would have led me to use air flotation” rather than coagulation ponds in the latex manufacturing process. He explained that air flotation involves using a mixture of air and water to cause particles to rise to the surface. This process would allow hazardous materials to be removed from waste-water “in a matter of an hour or two rather than letting it sit there for a long time.” He testified that “[b]y the late ’70’s or early ’80’s, I certainly would have [used air flotation].” He also said that the technology was available in the 1970s and 1980s to build monitoring wells next to coagulation ponds, but said that this would detect only large quantities of material being released and would not be effective for detecting small quantities. Barnhart stated that he did not ask anyone at Dow why they did not install monitoring wells. Catherine Holmes testified that in the early 1980s Dow decided to phase out the coagulation ponds and replace them with a dissolved air flotation system. The coagulation ponds were ultimately phased out in 1986. She had no idea why an air flotation system was not installed in the 1970s.

Although we cannot say that the evidence against Dow was overwhelming with respect to punitive damages, we believe the Eleventh Circuit would have affirmed the jury’s award of such damages. There was evidence that, in the 1960s and 1970s, the technology was available to use lined coagulation ponds, and that Dow itself manufactured and marketed a liner. Although Dow claimed that use of a liner would have interfered with its ability to dredge the ponds, this position was contradicted by the testimony of Dr. Ellis. One of Dow’s own experts admitted that lined ponds would have been his first choice at least by the early 1980s. Alternatively, at least by the late 1970s, Dow could have begun using air flotation technology to remove hazardous substances from its wastewater. Although the standard industry practice at the time was to use unlined coagulation ponds, the jury could have concluded that, as an industry leader with access to current technology, Dow should have used state-of-the-art technology. Moreover, there was evidence that Dow could have installed simple monitoring wells to detect any leakage from its ponds. Although Dow claimed that such wells would have been ineffective in detecting low levels of leakage, that claim was disputed. Given (1) the fact that the coagulation ponds and landfill were situated near to and on a higher elevation than plaintiffs’ property, thus making it foreseeable that any contamination would flow downhill toward plaintiffs’ property, (2) the fact that Dow’s expert admitted that it was not unforeseeable that there would be leakage from unlined ponds, and (3) the possible consequences to plaintiffs of contamination, the jury could have concluded that Dow’s failure either to use better technology or to install a monitoring system demonstrated a conscious disregard of the consequences to plaintiffs.

The jury could also have concluded that Dow did not take adequate measures to remediate the contamination. Although the Environmental Protection Division concluded that Dow’s plan was adequate, plaintiffs’ expert testified that the data collected by Dow were inadequate to evaluate the plan. He also characterized Dow’s remediation plan as “a very minimal effort.” Although this evidence in isolation might not have been sufficient to support an award of punitive damages, the jury could have considered it in connection with the evidence regarding Dow’s failure to use adequate technology to prevent leakage in the first place and concluded that the combined weight of the evidence supported an inference of conscious indifference to consequences.

It was not necessary for plaintiffs to show intentional misconduct on the part of Dow in order to recover punitive damages; it was sufficient to present evidence supporting an inference of conscious indifference. Mr. Transmission, supra. It is not our function, or the function of the Eleventh Circuit, to consider “ ‘which side has the better of the case.’ ” Watts, supra, 842 F2d at 310. Viewing all of the evidence, as we believe the Eleventh Circuit would have done, we believe that the question of Dow’s conscious indifference to consequences was one as to which “ ‘reasonable and fair-minded men in the exercise of impartial judgment might reach different conclusions.’ ” Id. at 309. Accordingly, the issue was within the province of the jury, and it is likely that the Eleventh Circuit would not have reversed the award of punitive damages. The trial court thus properly granted Ogletree’s motion for partial summary judgment and denied Dow’s motion.

Decided March 16,1999

Keegan Federal & Associates, R. Keegan Federal, Jr., John P. Marinan, for appellant.

Hawkins & Parnell, J. Bruce Welch, Robert R. Elarbee, for appellee.

Judgment affirmed.

Pope, P. J., and Beasley, P. J., concur.

       Dow does not contend that the Eleventh Circuit would have reversed the trial court’s denial of its motion for a new trial. Accordingly, we do not address that issue.

       Because the evidence at trial showed that plaintiffs’ cause of action accrued before July 1, 1997, the standard for awarding punitive damages is governed by OCGA § 51-12-5 (a) rather than by OCGA § 51-12-5.1. OCGA § 51-12-5 (b). See Carter v. Myers, 204 Ga. App. 498, 500-501 (3) (419 SE2d 747) (1992).

       In its brief, Dow argues that its failure to install monitoring wells “is relevant to the issue of punitive damages only if Dow had reason to suspect that the wastewater would leak through the clay soil it believed in good faith to be impermeable or that a leak would contain dangerous contaminants. There was no such evidence.” This argument ignores the testimony of Dow’s own expert, Dr. Kwader, admitting that it was not unexpected that the unlined ponds would leak.


author: Andrews, Judge.

text:
    A98A2074.
    PEAVY v. GOODROE.
    (514 SE2d 699)
   Andrews, Judge.

Marvin Peavy appeals from denial of his motion to set aside the judgment or grant a new trial in his boundary dispute with Roy Goodroe. Goodroe’s claim regarding the location of the boundary line was accepted by the jury. Additionally, he was awarded $25,000 for damages to his realty, based on Peavy’s bulldozing the disputed strip of property and destroying topsoil and pine seedlings intended for later harvest.

The dispute involved the location of the eastern boundary of a portion of Goodroe’s property, approximately 34 acres which he purchased in 1991 from Faye Markert, and the western boundary of Peavy’s property, purchased in 1991 from Betty Staley whose predecessor in title was Julia Markert, Faye Markert’s sister-in-law. The total area in dispute is approximately a half-acre running in an eight- to ten-foot strip down the disputed line. Both the deed to Goodroe and the one to Peavy referenced a 1959 plat prepared by J. R. Curtis for a predecessor in title of Peavy. Neither deed specifically stated that the land lot line was also a property line, although the Curtis plat did contain land lot numbers of the four land lots involved at the northwest comer of Peavy’s lot.

Goodroe’s surveyor, Priest, concluded that the Curtis plat placed the disputed north/south line beginning at an iron pin in the Curtis plat’s northwest corner of that plat, which is the northeast corner of Goodroe’s property. Priest also located an iron pipe in the northeast corner of the Curtis plat, which corresponds to the northeast corner of Peavys property. When he electronically sighted the north line of the Curtis plat from these two pins, he was less than three inches off the distance computed by Curtis in 1959.

Raines, Peavy’s surveyor, located the two pins which Priest had found, but disagreed that they represented the land lot line between Land Lots 106 and 119 or the Peavy/Goodroe property line. Peavy and Raines contended that the land lot line was the property line between the two lots and was located eight feet west of Priest’s line.

1. The first enumeration of error is that the trial court erred in not granting the motion for j.n.o.v. because there was no evidence that Goodroe’s entire property was in Land Lot 106. That argument, however, is not contained in the transcript or record here.

Absent a showing that [Peavy] presented this argument to the trial court, we cannot reach it. This Court reviews enumerations to correct errors committed by trial courts. It lacks jurisdiction to consider arguments presented for the first time on appeal. Jackson v. Ga. Lottery Corp., 228 Ga. App. 239, 245 (2) (491 SE2d 408) (1997); McDaniel v. State, 221 Ga. App. 43, 47 (1) (470 SE2d 719) (1996); see Nowell v. Fain, 174 Ga. App. 592, 593 (330 SE2d 741) (1985).

Mazdak Auto Towing &c. v. Midcontinental Group, 231 Ga. App. 859, 860 (1) (501 SE2d 44) (1998).

The evidence presented adequately supports the location of the line as argued by Goodroe. KDS Properties v. Sims, 234 Ga. App. 395, 397 (2) (506 SE2d 903) (1998).

2. The second enumeration is that the court erred in denying the motion for j.n.o.v. or new trial on the issue of damages. At the close of the evidence, Peavy moved for directed verdict on the basis that Goodroe had shown no diminution in the value of the real estate. Additionally, Peavy moved to strike the testimony of McQuaig, Goodroe’s expert on timber, regarding the loss of future growth of the trees. The trial court granted the motion for directed verdict concerning future growth of the trees and agreed that the verdict form would allow assessment of damages only for “incidental damages to the land.”

The court charged that the jury was not to consider “the lessening or diminution in value of the land or value of trees because that evidence was not before you.” Instead, the jury was to consider incidental damages claimed by Goodroe because of the damage to trees of tender years and damage to the actual land. Further, the court charged that the cost of replanting the trees could be used in valuing the trees of tender years.

Decided March 16,1999.

Groover & Childs, Denmark Groover, Jr., Walter E. Baker, for appellant.

McQuaig, a registered forester and timber grower, testified that he had walked the land and estimated the damage to it. First, a lot of topsoil had been removed from the area, and, because of the steep grade of the property, quite a bit of the topsoil had been lost. McQuaig estimated the cost for a bulldozer to replace topsoil would be at least $1,000. He valued the pulpwood at $640 per year per acre for the years since the bulldozing and stated that, with all the erosion, “the probable future loss in value would be, in my opinion, $3,000.” The cost of seedlings to replace the trees would be $100 per acre. McQuaig then added these figures for a total of $4,740.

Goodroe testified that he had replanted the area north of the creek going through his property in January 1992 and the remaining area to the south in 1991, using improved loblolly pines. They were then bulldozed in 1996. Goodroe counted 520 trees that had been bulldozed. He stated regarding the cost to replace the same number of trees of the same sizes, “[t]he first figure I got was $82,855.”

The jury returned a verdict for Goodroe of $25,000. The motion for j.n.o.v. or new trial argued that there was no evidence upon which to award $25,000.

The evidence given by Goodroe was hearsay. “[H]earsay evidence has no probative value even if it is admitted without objection.” Germany v. State, 235 Ga. 836, 840 (2) (221 SE2d 817) (1976); City of Lawrenceville v. Macko, 211 Ga. App. 312, 316 (2) (439 SE2d 95) (1993); Shaver v. State, 199 Ga. App. 428, 429 (1) (405 SE2d 281) (1991).

The replacement cost of the seedlings is a viable element of incidental damages when the seedlings have no value as marketable timber. Knox Enterprises v. Timbermen, Inc., 215 Ga. App. 390, 392 (2) (450 SE2d 834) (1994); Southern R. Co. v. Crowe, 186 Ga. App. 244, 246 (1) (366 SE2d 846) (1988). At the time the trees here were bulldozed, they were seedlings with no marketable value.

However, as reflected above, there is no evidence in the record to support the jury’s award of $25,000 in damages, and the trial court erred in denying Peavy’s motion for new trial on this ground. OCGA § 51-12-12 (b); Spence v. Hilliard, P.C., 260 Ga. 107 (1) (389 SE2d 753) (1990).

Judgment affirmed in part and reversed in part.

Pope, P. J., and Beasley, P. J., concur.

Herbert L. Wells, for appellee.

       Land lots were cut from districts of nine or ten square miles in the early 1800s. Each district was divided into square lots of 202.5 acres or 45 chains square.