text:
    A98A1851.
    HENDERSON v. JUSTICE.
    (514 SE2d 713)
   Ruffin, Judge.

The Superior Court of Floyd County, Georgia held Gordon Henderson in wilful contempt for failure to surrender custody of his minor child to the child’s mother, Regina Justice, in accordance with its order modifying an Alabama divorce decree and custody order. Henderson appeals the contempt order, arguing that the underlying modification order was void because the Georgia court lacked jurisdiction. For reasons which follow, we reverse.

Many of the relevant facts of this case are set forth in our opinion in Henderson v. Justice, 223 Ga. App. 591 (1) (478 SE2d 434) (1996), where we first addressed the jurisdictional issue. Henderson and Justice were divorced in Mobile County, Alabama in 1992. Pursuant to the Alabama divorce decree, Justice was awarded custody of their two minor children and Henderson was granted visitation rights.

After the entry of the divorce decree, Justice remarried and moved to Floyd County, Georgia. In February 1995, Justice petitioned the Floyd County Superior Court to modify Henderson’s visitation rights. Henderson argued that the Georgia court lacked jurisdiction to modify the Alabama decree. On September 14, 1995, the Floyd County Superior Court issued an order concluding that Georgia did have jurisdiction, confirming that Justice had custody over the children, and modifying Henderson’s visitation rights.

On July 12, 1995, Henderson filed a motion in the Circuit Court of Mobile County, Alabama to enforce the original Alabama decree. On September 11, 1995, three days before the Georgia court issued its order, the Mobile County Circuit Court issued an order finding that “jurisdiction of this matter remains in the State of Alabama” and awarding temporary custody of the children to Henderson. The order indicated that the Alabama judge had “on numerous occasions attempted to contact Judge Matthews in Floyd County, Georgia, who has failed or refused to discuss the merits of this case on the question of jurisdiction.”

Henderson appealed the September 14, 1995 order of the Floyd County court, arguing that the court lacked jurisdiction to address custody. Henderson, supra. We concluded that, under the Parental Kidnapping Prevention Act, 28 USC § 1738A (PKPA), “[t]he Georgia court cannot modify the Alabama decree unless it . . . determines that the Mobile County, Alabama court that originally entered the decree has lost or declined to exercise jurisdiction.” (Punctuation omitted.) Id. at 593 (1). Since the Floyd County court had not undertaken this analysis, we vacated the judgment and remanded for further factual findings. Id. at 594.

On remand, the Floyd County court issued a second order, dated June 12, 1997, that read:

The Court is aware, and the record reflects that after the within modification petition was filed in Georgia ... a similar petition was filed in Alabama. This case was assigned to Judge Walther of this circuit and only reassigned to the undersigned at a later time. Following the reassignment and in discussion with Judge Walther, the undersigned was notified that Judge Walther had conducted a telephone discussion with the judge handling the Alabama petition and Judge Walther was told by that judge that he would defer to Georgia to hear the case.

The Floyd County court concluded that Alabama had declined to exercise jurisdiction and, therefore, Georgia had exclusive jurisdiction to address custody and visitation issues. Accordingly, the court reaffirmed its September 14, 1995 order modifying visitation.

Henderson filed an application for discretionary appeal of the June 12, 1997 order, asserting that the Floyd County court lacked jurisdiction over the matter. We denied the application on July 28, 1997.

On June 18, 1997, six days after the Floyd County court’s order, Justice filed a motion with the Floyd County court seeking to hold Henderson in contempt for refusing to turn over the child as required by the court’s order. On August 26, 1997, the Mobile County, Alabama court issued an order holding that Alabama had retained jurisdiction over this matter and refusing to give full faith and credit to the Floyd County court’s order.

On March 6, 1998, the Floyd County court entered an order holding Henderson in contempt for failing to appear in court and for failing to surrender custody of the child. It is from this order that Henderson appeals.

1. Henderson contends that the underlying modification order entered by the Floyd County judge was void for lack of subject matter jurisdiction, and that he therefore cannot be held in contempt for violation of that order. See In re Estate of Adamson, 215 Ga. App. 613, 614 (2) (451 SE2d 501) (1994) (order of contempt cannot be based on noncompliance with a void order). After the entry of the June 12, 1997 order, Henderson filed an application for discretionary review, which this Court denied on July 28, 1997. Therefore, it is necessary for us to consider whether the denial of the discretionary application prohibits us from reconsidering the validity of the modification order.

In Harris v. Harris, 245 Ga. 75 (263 SE2d 113) (1980), the Supreme Court discussed the nature of the discretionary appeal process. The Supreme Court held that the discretionary appeal statute:

does not deny a party appellate review, but rather, establishes an appellate review process with the following two steps: (1) initial appellate review of a record which will include copies of such parts of the trial court record or transcript as the appellant or appellee deem appropriate; (2) if the initial appellate review reveals that the appellant’s enumerations of error are clearly without merit then the application for appeal is dismissed; if however the initial appellate review reveals that the appellant’s enumerations of error are not clearly without merit, then the application for appeal is granted and a final appellate review ensues.

(Punctuation omitted.) Id. at 76. Thus, the Supreme Court held that the discretionary appeal process is merely an alternative process by which an appellant may secure appellate review of a decision. The denial of an application for discretionary appeal is not the denial of the right to appeal, but an adjudication by the appellate court that the enumerations raised by the appellant are clearly without merit.

In several cases, this Court has recognized that the denial of an application for discretionary appeal invokes the doctrine of res judicata where the judgment appealed from was final and on the merits. See McLemore v. Stephenson, 181 Ga. App. 828, 829 (354 SE2d 828) (1987); Martin v. State, 185 Ga. App. 145, 146 (1) (363 SE2d 765) (1987); Steele v. Niggelie, 163 Ga. App. 98 (293 SE2d 368) (1982). However, when the judgment being appealed was interlocutory in nature, the denial of an application for discretionary appeal does not operate as res judicata, since the denial could have been based on the appellate court’s desire to wait until a final judgment was entered before exercising appellate review, rather than a determination on the merits. See C & S Nat. Bank v. Rayle, 246 Ga. 727, 731 (273 SE2d 139) (1980). In addition, where the judgment from which discretionary appeal is sought is also the subject of a direct appeal, the denial of the discretionary application does not necessarily act as an adjudication on the merits, since the discretionary appeal is redundant. See Berger & Washburne Ins. Agency v. Commercial Ins. Brokers, 204 Ga. App. 146, 147 (1) (418 SE2d 640) (1992); In the Interest of C. D. B., 182 Ga. App. 263, 264 (1) (355 SE2d 759) (1987) (physical precedent only).

Henderson contends that the modification order did not constitute a final order due to the pendency of Justice’s motion to hold him in contempt for violation of such order. However, Justice’s contempt motion was not filed until six days after the entry of the modification order. Clearly, the fact that a party files a motion for contempt seeking to enforce the terms of a final order does not affect the finality of the order or extend the time in which to file an appeal from such order. See Brown v. King, 266 Ga. 890-891 (472 SE2d 65) (1996) (a contempt action to enforce a court order is an independent proceeding that is ancillary to the underlying action). Because the modification order was a final judgment on the merits, our denial of Henderson’s application for discretionary appeal constituted an adjudication on the merits of the appeal. Martin, supra; McLemore, supra.

2. We must next consider whether our denial of the discretionary application prohibits Henderson from collaterally attacking the validity of the modification order as a defense to Justice’s contempt motion. OCGA § 9-11-60 (a) provides that “[a] judgment void on its face may be attacked in any court by any person.” In Murphy v. Murphy, 263 Ga. 280, 282 (430 SE2d 749) (1993), the Supreme Court held that the phrase “void on its face” means “those judgments which lack either personal or subject matter jurisdiction.”

Although OCGA § 9-11-60 (a) allows a judgment void on its face to be attacked in any court, the application of that principle is limited by the law of the case rule, which provides that “any ruling by the Supreme Court or the Court of Appeals in a case shall be binding in all subsequent proceedings in that case in the lower court and in the Supreme Court or the Court of Appeals as the case may be.” OCGA § 9-11-60 (h). We previously held that, under the law of the case rule, this Court is bound by its previous rulings in the same proceedings. Rabern v. State, 231 Ga. App. 84, 85 (1) (497 SE2d 631) (1998); Brown v. Piggly Wiggly Southern, 228 Ga. App. 629, 630-631 (2) (493 SE2d 196) (1997); Gregory, Ga. Civil Practice (1990) at 566 (“once an appellate [court] announces a decision on an issue that is the law of that case not only for the trial court but for the appellate court as well”). As discussed above, our previous denial of Henderson’s application for discretionary appeal constituted an adjudication on the merits of Henderson’s claim that the trial court lacked jurisdiction to enter the modification order. Thus, unless this case falls under an exception to the law of the case rule, we are precluded from reconsidering whether the underlying modification order is void for lack of jurisdiction.

An exception to the rule that will permit issues to be relitigated after appeal is when the evidentiary posture of the case changes. . . . Thus, if subsequent to an appellate decision, the evidentiary posture of the case changes in the trial court, the law of the case rule does not limit or negate the effect that such change would otherwise mandate.

(Punctuation omitted.) Brown, supra at 629 (1). “Our review is limited to the effect of the new evidence, and we are precluded from reconsidering previously decided issues except to the extent of the additional evidence.” Id. at 630 (1).

On August 26, 1997, after we issued our order denying Henderson’s application for discretionary appeal, the Mobile County Circuit Court in Alabama issued an order finding that it:

has had jurisdiction over this matter since the filing of the complaint for divorce in this Court and the divorce decree entered on December 8, 1992. This Court retained continuing and exclusive jurisdiction in this matter pursuant to Alabama law and properly exercised its continuing and exclusive jurisdiction through numerous Orders including those dated April 22, 1994, June 9, 1994, May 26, 1995, July 21, 1995, September 11, 1995, November 28, 1995, January 31, 1996, April 16, 1996, and May 16, 1996. This Court has jurisdiction over pending motions. . . . This Court has never declined or deferred jurisdiction of this matter to the Superior Court of Floyd County, Georgia, and to the contrary, has consistently exercised its continuing and exclusive jurisdiction as set out above in compliance with Alabama law and the P.K.P.A.

Therefore, the Alabama court denied Justice’s request to give full faith and credit to the Floyd County court’s modification order. In Justice v. Henderson, 720 S2d 940 (Ala. Civ. App. 1998), the Alabama Court of Civil Appeals affirmed the Mobile County Circuit Court’s order.

In view of these subsequent rulings by the Alabama courts demonstrating that Alabama has, in fact, retained jurisdiction over the custody issue, we find the evidentiary posture of this case has changed. Accordingly, there is no violation of the law of the case rule and we can address whether the underlying Floyd County court modification order is void for lack of jurisdiction.

3. As we noted in Henderson v. Justice, supra, “the PKPA applies in all interstate child custody disputes and provides uniform guidelines for resolving such disputes.” (Punctuation omitted.) Id. at 592 (1). “In essence, the PKPA imposes on states a federal duty, under standards derived from the [Uniform Child Custody Jurisdiction Act], to give full faith and credit to a custody decree of a sister state.” Wilson v. Gouse, 263 Ga. 887, 889 (1) (441 SE2d 57) (1994).

Pursuant to section (f) of the PKPA, a court of one state can modify the child custody order of another state’s court only if: (1) it has jurisdiction to make such a child custody determination; and (2) the court of the other state no longer has jurisdiction, or it has declined to exercise such jurisdiction to modify such determination.

(Punctuation omitted.) Garrett v. Garrett, 267 Ga. 356, 357 (1) (477 SE2d 804) (1996).

This case shares virtually identical facts with Garrett, supra. In Garrett, the parties divorced in Alabama. The mother moved to Georgia with the minor child while the father remained a resident of Alabama. Following allegations that the father had molested the child, the mother filed a petition in a Georgia court seeking modification of the Alabama decree. The Supreme Court concluded that Alabama had retained jurisdiction: (1) because the father remained a resident of the state; and (2) because Alabama law provides for exclusive continuing jurisdiction. Id. at 357-358 (2).

The Supreme Court noted that

under Alabama law, the jurisdiction of that state’s court would continue . . . because the exercise of child visitation rights awarded by the Alabama court to [the father] results in a significant connection between that state and the child and substantial evidence exists in Alabama as to whether those child visitation rights awarded to [the father] should be modified because of the manner in which he is alleged to have exercised those rights in that state.

Id. at 359 (2). Thus, the Supreme Court found that “the PKPA limits the exercise of the Georgia court’s jurisdiction to modify the original Alabama child custody decree.” Id. at 360.

Here, as in Garrett,

[i]t is clear that the Georgia court has jurisdiction to modify the original Alabama child custody order, since Georgia is now the “home state” of [Justice] and the [minor children]. OCGA § 19-9-43 (a) (1) (A). Therefore, resolution of this case is dependent upon whether the Alabama court has continuing jurisdiction to modify its original child custody order. ... If the Alabama court has continuing jurisdiction to modify its original child custody order and has not declined to exercise that jurisdiction, then the PKPA limits the exercise of the Georgia court’s jurisdiction to do so.

Id.

The distinction between this case and Garrett is that here, the Floyd County court concluded that Alabama declined jurisdiction based upon a conversation between Judge Walther and an Alabama judge in which the Alabama judge indicated that he would defer jurisdiction to Georgia. Pretermitting the issue of whether the recounting of this earlier conversation was sufficient to determine that Alabama had declined to exercise jurisdiction, at the time the Georgia court entered its June 1997 order, the judge had an exemplified copy of the order of the Alabama court that clearly demonstrated that Alabama was, in fact, exercising jurisdiction over the custody issue.

According to section (g) of the PKPA,

[a] court of a State shall not exercise jurisdiction in any proceeding for a custody determination commenced during the pendency of a proceeding in a court of another State where such court of that other State is exercising jurisdiction consistently with the provisions of this section to make a custody determination.

28 USC § 1738A. As other jurisdictions have recognized, this “first in time” rule is “designed to prevent jurisdictional squabbles.” Matter of C. A. D., 839 P2d 165, 172 (Okla. 1992).

Here, Justice filed her petition in Georgia prior to Henderson filing a petition in Alabama. Arguably, this means that Alabama should have deferred to Georgia with regard to the custody issue. However, according to Alabama’s court orders, Alabama has never declined to exercise jurisdiction in which case Georgia should have yielded to Alabama. OCGA § 19-9-46 (c) provides, in pertinent part, that “[if a] court [of this state] is informed that a proceeding was commenced in another state after it assumed jurisdiction, it shall likewise inform the other court, to the end that the issues may be litigated in the more appropriate forum.” This requirement serves “to avoid overlapping adjudication and [prevents] judgment races.” Webb v. Webb, 245 Ga. 650, 652 (2) (266 SE2d 463) (1980).

Congress enacted the PKPA to discourage forum shopping and to prevent “widespread jurisdictional deadlock.” Thompson v. Thompson, 484 U. S. 174, 180-181 (108 SC 513, 98 LE2d 512) (1988). In this case, by issuing an order in direct conflict with the Alabama order, the Floyd County court created just this kind of “jurisdictional deadlock.” Upon learning that Alabama was exercising jurisdiction over this matter, the Floyd County court should have initiated discussions with the Alabama court in keeping with OCGA § 19-9-46 to avoid this “jurisdictional squabble.” Given the evidence that Alabama has retained exclusive continuing jurisdiction, it was improper for the Floyd County court to exercise its jurisdiction. See Garrett, supra; Steele v. Steele, 250 Ga. 101, 106 (296 SE2d 570) (1982). Accordingly, the underlying modification order is void for lack of subject matter jurisdiction. It follows that the contempt order must be reversed as “an order of contempt cannot be based on non-compliance with a void order.” (Punctuation omitted.) In re Woodall, 231 Ga. App. 391, 396 (1) (499 SE2d 150) (1998).

Decided March 17,1999

Reconsideration denied March 30,1999

Custer & Hill, Douglas A. Hill, for appellant.

Smith, Price & Wright, Charles G. Price, for appellee.

Judgment reversed.

Pope, P. J., concurs. Beasley, P. J., concurs in the judgment only.

       “In this case, the trial court found, supported by ample evidence in the record, that Georgia is the “home state’ of the minor children.” Henderson at 593 (1).

       Following remand by this Court in Henderson, supra, the trial court conducted a hearing on February 11, 1997 at which time the parties stipulated that Judge Walther had no independent recollection of the substance of his conversation with the Alabama judge.


source: Caselaw Access Project

author: McMurray, Presiding Judge.

license: Public Domain

text:
    A98A1854.
    NORFOLK SOUTHERN RAILWAY COMPANY v. BAKER et al.
    (514 SE2d 448)
   McMurray, Presiding Judge.

After working on the railroad as a locomotive engineer for 18 years, Phil Baker (“the decedent”) was stricken with nasopharyngeal cancer and died. The decedent’s widow, Linda W. Baker, brought an action, individually and as representative of her husband’s estate, against the decedent’s former employer, Norfolk Southern Railway Company (“Norfolk Southern”), alleging the decedent’s fatal cancer was caused by prolonged exposure to exhaust from Norfolk Southern’s diesel powered locomotives. Ms. Baker charged Norfolk Southern with failing to provide the decedent with a safe place to work in violation of the Federal Employers’ Liability Act (“FELA”), 45 USC § 51 et seq., and with violating the Locomotive Boiler Inspection Act’s (“LBIA”), 45 USC § 23, regulation that products of combustion shall be released outside locomotive crew-cabins, 49 CFR § 229.43 (a).

Norfolk Southern denied liability and the case was tried before a jury. The jury returned a $5,744,225.50 verdict for Ms. Baker and the decedent’s estate. The evidence adduced at trial, construed to uphold this verdict (Southeastern Security Ins. Co. v. Hotle, 222 Ga. App. 161, 162 (1) (473 SE2d 256)), reveals that the decedent, while working in the crew-cabin areas of Norfolk Southern’s locomotives, was exposed to high levels of diesel exhaust — six days a week, four to twelve hours a day; that this exposure, according to expert testimony, “incriminates diesel exhaust as the cause of [the decedent’s] fatal nasopharyngeal cancer”; that Norfolk Southern knew, since at least 1985, that its locomotive crews were reporting medical problems and other difficulties due to excessive diesel exhaust in their working cabins and that Norfolk Southern did not remedy the situation before the decedent’s death in 1991.

The decedent testified posthumously, during a videotaped deposition, that “black smoke” routinely flooded the crew-cabins of the Norfolk Southern diesel powered locomotives he operated; that this smoke was from the locomotives’ centrally mounted exhaust stacks; that he was exposed to such exhaust “to a degree at all times” during his four to twelve hour daily runs between Macon, Georgia and Valdosta, Georgia, and that his exposure to diesel exhaust was greatest during warm weather (at least six months per year) because Norfolk Southern did not air condition its locomotives’ crew-cabins. The decedent explained that the only way to cool the crew-cabin on a Norfolk Southern locomotive, which was probably “twenty to thirty degrees warmer . . . than . . . outside,” was to open the cabin’s tandem windows, but that this procedure allowed “black [diesel] smoke” to flood the crew-cabin from the locomotive’s cabin-forward exhaust stack.

Another Norfolk Southern locomotive engineer, James Robert Sexton, testified that he informed Norfolk Southern officials in 1985 that diesel exhaust was causing medical problems for Norfolk Southern’s locomotive crews. Mr. Sexton also testified that he advised his Norfolk Southern supervisors that most of the exhaust was entering the crews’ work areas because Norfolk Southern’s bidirectional locomotives were operating in the direction which placed the locomotives’ crew-cabins aft of the diesel exhaust stacks and that this problem could be improved by operating the locomotives in the direction which placed the crew-cabins forward of the diesel exhaust stacks. Mr. Sexton’s testimony reveals that he also suggested to his Norfolk Southern supervisors that air conditioning its locomotives’ crew-cabins would improve the diesel exhaust problem, but that Norfolk Southern did not adopt his recommendations or any effective policy for reducing the diesel exhaust problem in its locomotives’ crew-cabins.

Luther J. Sibley testified that he worked with the decedent during his career as a Norfolk Southern conductor; that his exposure and the decedent’s exposure to diesel exhaust was so heavy that, “winter or summer, . . . the fumes that would come in would get in your clothing, would get in your hair, would get in — you breathe it, you could taste it, and [that] this was a day-in and day-out situation.” Mr. Sibley explained that, before runs, he often asked to configure the locomotives he was assigned to operate so that the locomotives’ crew-cabins would be in front of the diesel exhaust stacks, but that his Norfolk Southern supervisor usually responded by saying: “ ‘Well, we’re not going to alter the engines just to accommodate you so that you all won’t have fumes coming in the engine cab. The engines come in here on a certain consist [(configuration), and] that’s how we’re going to run them. You be satisfied with it.’ ”

This appeal followed the trial court’s denial of Norfolk Southern’s motion for new trial and motion for judgment notwithstanding the verdict. Held-.

1. Citing Daubert v. Merrill Dow Pharmaceuticals, 509 U. S. 579 (113 SC 2786, 125 LE2d 469), Norfolk Southern contends the trial court erred in denying its motion for directed verdict because Ms. Baker’s medical expert did not offer a probable scientific basis for his opinion that diesel exhaust caused or contributed to the decedent’s fatal nasopharyngeal cancer.

We first note that Daubert involves the application of Federal Rule of Evidence 702, which has not been adopted in Georgia. The applicable law in Georgia is OCGA § 24-9-67, which provides: “the opinions of experts on any question of science, skill, trade or like questions shall always be admissible; and such opinions may be given on the facts as proved by other witnesses.” Provided an expert witness is properly qualified in the field in which he offers testimony, Chandler Exterminators v. Morris, 262 Ga. 257 (416 SE2d 277) (1992), and the facts relied upon are within the bounds of the evidence, whether there is sufficient knowledge upon which to base an opinion or whether it is based upon hearsay goes to the weight and credibility of the testimony, not its admissibility. King v. Browning, 246 Ga. 46, 47 (1) (268 SE2d 653) (1980) ; Jones v. Ray, 159 Ga. App. 734, 736 (4) (285 SE2d 42) (1981) .

Orkin Exterminating Co. v. McIntosh, 215 Ga. App. 587, 591 (4), 592 (452 SE2d 159).

In the case sub judice, the unchallenged testimony of Dr. Samuel S. Epstein, Professor of Occupational & Environmental Health at the School of Public Health in Chicago, Illinois, qualified him as an expert in chemistry, pathology, internal medicine, toxicology, cancer causation and the carcinogenic properties of diesel exhaust. After opining that “the preponderance of evidence clearly incriminates diesel exhaust as the cause of [the decedent’s] fatal nasopharyngeal cancer,” Dr. Epstein explained that he based his opinion on estimates of the decedent’s exposure to diesel exhaust (posed in a factually supported hypothetical question), his understanding of diesel exhaust chemistry and his knowledge and examination of studies linking diesel exhaust to cancer in laboratory animals and humans. Dr. Epstein explained that diesel exhaust contains many carcinogenic elements — including high levels of formaldehyde; that formaldehyde causes nasal cancer in laboratory animals and that formaldehyde has been shown to cause the type of cancer that was discovered in the decedent’s nasopharynx — “squamous cancer.” Dr. Epstein further explained that diesel exhaust, while generally carcinogenic, poses a specific risk for nasopharyngeal cancer because it contains soot particles which absorb the exhaust’s carcinogenic gases and then, when inhaled, accumulates these concentrated carcinogens in the nasopharynx. This testimony is sufficient to authorize the jury’s finding that diesel exhaust caused, or played a role in causing the decedent’s fatal nasopharyngeal cancer.

“Under (FELA) the test of a jury case is simply whether the proofs justify with reason the conclusion that employer negligence played any part, even the slightest, in producing the injury or death for which damages are sought.” (Citations and punctuation omitted.) CSX Transp. v. Snead, 219 Ga. App. 491, 495 (2) (465 SE2d 690) (1995).

Thomas v. CSX Transp., 233 Ga. App. 178, 180 (503 SE2d 662).

The case sub judice is not controlled by Motorola v. Ward, 223 Ga. App. 678, 679 (478 SE2d 465) (physical precedent only), and Jordan v. Ga. Power Co., 219 Ga. App. 690, 694 (2) (466 SE2d 601), where this Court held that there were insufficient statistical or scientific data to support expert opinions that electromagnetic fields cause cancer. Unlike the case sub judice, Motorola and Jordan are actions that were not subject to the lesser quantum of evidence required to establish liability in FELA cases. See Thomas v. CSX Transp., 233 Ga. App. 178, 180, supra. See also Harbin v. Burlington Northern R. Co., 921 F2d 129, 130-131 (7th Cir. 1990) (quantum of evidence required to establish liability in an FELA case is much less than in an ordinary negligence case). But even assuming the contrary, we find Dr. Epstein’s explanation for his opinion regarding the cause of the decedent’s cancer sufficient to demonstrate a “reasonable probability” of a causal connection between the decedent’s exposure to diesel exhaust and his nasopharyngeal cancer. See Holley v. Smallwood, 174 Ga. App. 365, 366 (330 SE2d 136); Maurer v. Chyatte, 173 Ga. App. 343 (3), 344-345 (326 SE2d 543). The trial court, therefore, did not err in allowing the jury to resolve the issue of causation and in denying Norfolk Southern’s motion for directed verdict or for a new trial.

2. Norfolk Southern’s third enumeration of error contends that it “was entitled to a directed verdict on [Ms. Baker’s] Locomotive Boiler Inspection Act claim, because the evidence failed to demonstrate that the level of diesel emissions in locomotive cabs exceeded the levels permitted by the Federal Railroad Administration [(“FRA”)].” Although Norfolk Southern supports this assertion by referring to an FRA opinion letter, Defendant’s Exhibit 682, that purportedly defines LBIA’s tolerance for certain amounts of diesel exhaust in locomotive crew-cabins, Norfolk Southern does not show where this letter can be found in the case sub judice’s 23 volume record as required by Rule 27 (a) of the Court of Appeals of the State of Georgia. Moreover, our examination of the trial transcript and the trial transcript’s exhibit index indicates that Defendant’s Exhibit 682 was discussed and identified at trial, but not proffered into evidence. Under such circumstances, there is no basis for considering Norfolk Southern’s assertion that LBIA’s tolerance for diesel exhaust in locomotive crew-cabins is anything other than the apparently clear and unambiguous standard prescribed in 49 CFR 229.43 (a). That is, that

[p]roducts of combustion shall be released entirely outside the cab and other compartments [of locomotives and that locomotive exhaust] stacks shall be of sufficient height or other means provided to prevent entry of products of combustion into the cab or other compartments under usual operating conditions.

From this perspective, we find the decedent’s testimony and the testimony of his conductor, Luther J. Sibley, regarding the decedent’s daily exposure to diesel exhaust, sufficient to authorize the jury’s consideration of Norfolk Southern’s liability for failing to comply with 49 CFR 229.43 (a). See Lilly v. Grand Trunk Western R. Co., 317 U. S. 481, 485 (63 SC 347, 87 LE 411).

The trial court did not err in denying Norfolk Southern’s motion for directed verdict as to Ms. Baker’s strict liability claim under LBIA.

3. Because there is nothing to refute Ms. Baker’s evidence that Norfolk Southern violated LBIA’s regulation against diesel exhaust in its locomotives’ crew-cabins and since there is proof that this violation contributed to the decedent’s death, the trial court did not err in refusing to give Norfolk Southern’s requested jury charge on contributory negligence. In FELA cases based on a LBIA violation, contributory negligence cannot be considered in mitigation of damages. See 45 USC § 53; Rogers v. Missouri Pacific R. Co., 352 U. S. 500, 506 (77 SC 443, 1 LE2d 493); Western & Atlantic R. v. Townsend, 36 Ga. App. 70, 74 (6) (135 SE 439); Baker v. CSX Transp., 581 NE2d 770, 781-782 (1991).

Hickox v. Seaboard System R., 183 Ga. App. 330 (358 SE2d 889), is not controlling because, unlike the case sub judice, the injured railway worker in Hickox did not base his FELA action, in whole or in part, on a statutory or regulatory violation that was enacted for the safety of employees.

4. Citing Key v. Norfolk Southern R. Co., 228 Ga. App. 305 (491 SE2d 511), Norfolk Southern contends it was entitled to a directed verdict based on Ms. Baker’s proof that Norfolk Southern’s locomotives were not air conditioned. Specifically, Norfolk Southern reasons that this proof converted Ms. Baker’s action into a design defect case which is preempted by LBIA. We do not agree.

In Key, a railway worker claimed that he was injured by defectively designed steps on his railway employer’s locomotive. Because it was undisputed that these steps complied with LBIA’s design regulations, this Court held that LBIA preempted the injured employee’s common-law design defect claim and authorized summary judgment for the railway employer. This Court explained that any evidence of a design defect beyond the requirements of LBIA’s regulations was immaterial. Key v. Norfolk Southern R. Co., 228 Ga. App. 305, supra. The case sub judice is distinguishable because, even though LBIA’s regulations may not have required air conditioners on Norfolk Southern’s locomotives, proof that Norfolk Southern refused, unlike other railway operators, to air condition its locomotives was material to Ms. Baker’s FELA claim that Norfolk Southern did not take reasonable steps to provide a safe workplace for the decedent.

5. Norfolk Southern contends the trial court erred in charging the jury that the decedent’s estate would be entitled to recover the full value of the decedent’s life. We are compelled to agree.

In Atlantic Coast Line R. Co. v. Solomon, 37 Ga. App. 737, 738 (2) (141 SE 917), this Court held that a new trial was required because the trial court, in a FELA case, erroneously “charged the Georgia rule as to the measure of damages, under which the plaintiff would be entitled to recover the full value of the life of the decedent.” Id. at 738 (2), supra.

Damages recoverable in an FELA action are compensatory only. Seaboard System R. v. Taylor, 176 Ga. App. 847 (2) (338 SE2d 23) (1985). The FELA plaintiff can recover special damages for past and future lost wages and medical expenses, as well as general damages for pain and suffering. See, e.g., CSX Transp. v. Darling, 189 Ga. App. 719 (377 SE2d 217) (1988); Nairn v. Nat. R. Passenger Corp., 837 F2d 565 (2nd Cir. 1988).

Central of Ga. R. Co. v. Swindle, 260 Ga. 685, 686 (398 SE2d 365).

Decided March 11,1999

Reconsideration denied March 30,1999

Hall, Bloch, Garland & Meyer, Mark E. Toth, Nelson, Mullins, Riley & Scarborough, Richard B. North, Jr., Tara R. Simkins, Donald L. Swift III, for appellant.

Doffermyre, Shields, Canfield, Knowles & Devine, Robert E. Shields, Ralph I. Knowles, Jr., Chambless, Higdon & Carson, Marc T. Treadwell, for appellees.

The trial court’s erroneous jury instruction as to the right to recover the full value of the decedent’s life, as well as the jury’s general verdict, requires this Court to reverse and remand the case sub judice for a new trial as to damages only. And contrary to Ms. Baker’s assertions that four juror affidavits fairly explain the jury’s verdict, we find that the trial court’s erroneous instruction cannot be construed as harmless because the proper measure of damages in any FELA action is inseparably connected with the right of action. Monessen Southwestern R. Co. v. Morgan, 486 U. S. 330 (108 SC 1837,100 LE2d 349). Norfolk Southern did not specifically complain, and we do not reach any other aspect of the trial court’s damages charge.

Judgment affirmed in part and reversed in part and remanded with direction.

Blackburn and Eldridge, JJ, concur.

       The nasopharynx is at the back of the mouth, just above the soft pallet, next to the tonsils.

       This regulation provides as follows:
      Products of combustion shall be released entirely outside the cab and other compartments. Exhaust stacks shall be of sufficient height or other means provided to prevent entry of products of combustion into the cab or other compartments under usual operating conditions.


author: Ruffin, Judge.

text:
    A98A1876.
    In the Interest of J. M., a child.
    (513 SE2d 742)
   Ruffin, Judge.

J. M. was adjudicated delinquent for the offense of simple battery. See OCGA § 16-5-23 (a). He appeals, contesting the sufficiency of the evidence. Because there was sufficient evidence to support the adjudication, we affirm.

1. In three enumerations, J. M. contests the sufficiency of the evidence with respect to his adjudication. “In considering a challenge to the sufficiency of the evidence supporting an adjudication of delinquency, we construe the evidence and every inference from the evidence in favor of the juvenile court’s adjudication to determine if a reasonable finder of fact could have found, beyond a reasonable doubt, that the juvenile [ ] committed the acts charged.” In the Interest of R. L. W., 225 Ga. App. 253, 254 (2) (483 SE2d 361) (1997); see also Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Lee Trawick, a security officer at the Macy’s department store in Shannon Mall, testified that on November 28, 1997, his assistant manager, Dexter Wyatt, asked him to keep an eye on J. M. and another youth who were suspected of shoplifting and concealing a shirt. As Wyatt and Trawick were walking down the aisle, J. M.’s companion, David Collins, turned around, opened up his jacket, and said, “Do you need to check me?” According to Trawick, Wyatt said he did not intend to check Collins because he had not observed any concealment. Collins testified that Wyatt said, “I’m with Macy’s security.”

Trawick testified that J. M. then turned around and struck or pushed Trawick in the neck, resulting in scratches. Trawick said that, at the time he was struck by J. M., he was standing with his hands behind his back, about two or three steps behind J. M. He testified that he intentionally keeps his hands behind his back while observing an individual to avoid any kind of contact. After J. M. struck Trawick, Trawick grabbed J. M.’s coat and they both fell to the floor. J. M. then got up and began cursing at Trawick and threatening to sue him. At some point thereafter, J. M. told Trawick that he thought Trawick was trying to rob him.

Brad Coley, an employee of Macy’s at the time of the incident, testified that he saw J. M. turn and strike Trawick in the neck. He testified that Trawick did not put his hands anywhere near J. M. before he was struck. Christine Flynt, another security officer with Macy’s, testified that after the incident, J. M. came to the security office with his aunt and uncle to make a complaint. During this meeting, J. M. kicked a chair and said to Flynt, ‘You better watch it or I’ll hit you too.”

J. M. testified that, as he and Collins were walking along, he heard the two security guards talking behind him. He testified that Trawick asked him if he had any merchandise, and that he said “no” and kept walking. According to J. M., Trawick then grabbed his arm and threw him to the ground. J. M. denied striking Trawick in the neck, and said that he merely pushed Trawick’s arm away when Trawick tried to grab him. J. M. denied that he struck Trawick at any time before Trawick grabbed him.

OCGA § 16-5-23 (a) provides that “[a] person commits the offense of simple battery when he either: (1) Intentionally makes physical contact of an insulting or provoking nature with the person of another; or (2) Intentionally causes physical harm to another.” In this case, the trial judge was presented with two starkly different and incompatible versions of events. According to Trawick, J. M. struck him without provocation as he was standing with his hands behind his back, and before he had made any physical contact with J. M. This version of events was supported by the testimony of Brad Coley. According to J. M., however, he never struck Trawick in the neck and pushed Trawick’s arm away only after Trawick grabbed him. The trial judge, as trier of fact, clearly chose to believe Trawick’s version of the incident, and it is not our function to second-guess the factfinder on such questions of credibility. Accordingly, we find that the evidence was sufficient for the trial judge to conclude beyond a reasonable doubt that J. M. committed the offense of simple battery. See In the Interest of A. C., 226 Ga. App. 369-370 (486 SE2d 646) (1997).

2. After adjudicating J. M. delinquent, the trial court entered a disposition order preventing him from entering any Federated Department Store in Fulton County except in the immediate presence of a parent or adult relative. This restraining order expired October 13, 1998. J. M. contends that the trial court erred in finding that he was in need of treatment and rehabilitation, which is a precondition for the imposition of a disposition order. See OCGA § 15-11-33 (c). J. M. does not support this enumeration in his brief by any argument, citation to the record, or citation to authority, other than to assert that there was no evidence showing a need for treatment or rehabilitation. The State did not respond to this enumeration in its brief.

Pretermitting whether this issue has been rendered moot by the expiration of the restraining order, see In the Interest of J. E. H., 205 Ga. App. 847 (424 SE2d 61) (1992), we believe there was sufficient evidence to support the court’s conclusion that J. M. was in need of treatment and rehabilitation. Apart from his attack on Trawick, there was evidence that J. M. subsequently displayed violent behavior and threatened another Macy’s employee. Under these circumstances, the court’s limited restraining order was an appropriate disposition and justified by the evidence. See OCGA §§ 15-11-35 (a) (1) and 15-11-34 (a) (1) (authorizing trial court to “[p]ermit the child to remain with his or her parents, guardian, or other custodian, . . . subject to conditions and limitations as the court prescribes”).

Judgment affirmed.

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

Decided February 2,1999

Reconsideration denied March 30,1999.

Herald J. A. Alexander, for appellant.

Paul L. Howard, Jr., District Attorney, Lynn K. Armstrong, Bettieanne C. Hart, Assistant District Attorneys, for appellee.

       Although the trial court did not hold a separate dispositional hearing as required by OCGA § 15-11-33, J. M. did not object to this failure below and does not raise this issue on appeal. We have previously held that “error based on the failure to hold [a separate dispositional hearing] is neither harmless nor preserved only by objection.” (Punctuation omitted.) In the Interest of M. D., 233 Ga. App. 261, 262 (1) (503 SE2d 888) (1998) (remanding for dis-positional hearing and redetermination of disposition). Accordingly, J. M. did not waive this issue by failing to object below. However, quite apart from whether a party preserved an objection below, this Court will consider an issue only if it has been properly enumerated as error on appeal. See In the Interest of A. W. G., 184 Ga. App. 343, 344, n. 1 (361 SE2d 510) (1987) (appellate jurisdiction limited to consideration of legal points raised by enumerations of error). Nowhere in his enumerations of error or brief does J. M. raise the issue of the trial court’s failure to hold a separate dispositional hearing. Rather, J. M. merely contests the sufficiency of the evidence as to his need for treatment and rehabilitation. Accordingly, we do not consider the trial court’s failure to hold a separate dispositional hearing.


text:
    A98A1877.
    ROGERS v. BARNETT.
    (514 SE2d 443)
   Ruffin, Judge.

Beth Barnett sued her daughter, Kelley Ann Rogers, in the Superior Court of Evans County, seeking visitation rights with respect to Rogers’ son. Rogers opposed the granting of visitation rights. Following a hearing, the trial court entered an order granting visitation rights to Barnett. We granted Rogers’ application for discretionary review and affirm the trial court’s ruling.

1. Under OCGA § 19-7-3 (c), a trial court may grant reasonable visitation rights to a grandparent if the court finds that “the health or welfare of the child would be harmed unless such visitation is granted, and if the best interests of the child would be served by such visitation.” In several enumerations, Rogers contends that the evidence was insufficient to support the granting of visitation rights to Barnett. However, Rogers failed to file a complete transcript of evidence heard by the trial court at the hearing, submitting only a transcript of her own testimony and the court’s oral ruling. Without a complete record of evidence presented to the trial court, we are unable to consider whether the evidence was sufficient to support a grant of visitation rights. See P H. L. Dev. Corp. v. Smith, 174 Ga. App. 328, 329 (2) (329 SE2d 545) (1985); Griggs v. Griggs, 234 Ga. 451, 453-454 (2) (216 SE2d 311) (1975).

2. Rogers contends the trial court should have set aside its judgment because Barnett brought the action for purposes of harassment. This enumeration is essentially a challenge to the sufficiency of the evidence justifying a grant of visitation rights and must be rejected for the reasons discussed in Division 1.

3. Rogers claims the trial court erred in failing to dismiss the complaint because OCGA § 19-7-3 is unconstitutional.

“Where the constitutionality of a statute is drawn into question, exclusive jurisdiction is in the Supreme Court and this court will transfer such matters for consideration by that Court. 1983 Const., Art. VI, Sec. VI, Par. II (1).” Pruitt v. State, 203 Ga. App. 125, 127 (416 SE2d 524) (1992).

State v. D'Auria, 222 Ga. App. 615, 617 (475 SE2d 678) (1996). However, we will not transfer a case to the Supreme Court “unless it clearly appears in the record that the point was distinctly passed upon by the trial court.” Commissioner of Ins. v. Stryker, 218 Ga. App. 716, 719 (6) (463 SE2d 163) (1995).

Rogers filed a motion to dismiss the complaint on May 2, 1997. The sole ground asserted by Rogers for challenging the constitutionality of the statute was that “OCGA [§] 19-7-3 has been declared unconstitutional, by the Georgia Supreme Court” in Brooks v. Parkerson, 265 Ga. 189 (454 SE2d 769) (1995).* The trial court denied this motion on May 15,1997, noting that the legislature had amended the statute after the decision in Brooks to address the Supreme Court’s objections. See Ga. L. 1996, p. 1089, § 1.

After the trial court entered its order granting visitation rights to Barnett, Rogers filed a motion for new trial, asserting that the amended OCGA § 19-7-3 is unconstitutional because, among other things, it amounts to a termination of parental rights without requiring a finding of parental misconduct or inability. The trial court entered an order denying Rogers’ motion “on each and every ground stated therein.”

On appeal, Rogers does not challenge the constitutionality of OCGA § 19-7-3 based on the Supreme Court’s decision in Brooks, which was the only constitutional basis for her motion to dismiss. Rather, she essentially reasserts the arguments she raised for the first time in her motion for new trial, as well as other arguments not presented to the trial court. However, it is clear that a constitutional challenge may not be raised for the first time in a motion for new trial. See Cambron v. Canal Ins. Co., 246 Ga. 147, 152 (11) (269 SE2d 426) (1980); Frashier v. State, 217 Ga. 593 (124 SE2d 279) (1962). Because Rogers did not properly raise her constitutional arguments in the trial court prior to the motion for new trial, we decline to transfer this case to the Supreme Court for consideration of the issue. See Stryker, supra.

4. Rogers contends that the trial court erred in considering the best interests of the child without first making a determination that Rogers was an unfit parent. However, OCGA § 19-7-3 (c) does not require a finding that a parent is unfit, but simply that “the health or welfare of the child would be harmed unless such visitation is granted.” Accordingly, this enumeration is without merit.

5. Rogers was represented by counsel at the hearing on Barnett’s petition. After the trial court entered its final order, Rogers filed a motion seeking court-appointed counsel, alleging that she was indigent. She appeals the trial court’s denial of this motion.

Rogers asserts that she is indigent as defined in OCGA § 15-11-30 (a) and was therefore entitled to court-appointed counsel pursuant to OCGA § 15-11-85. This Code section allows for the appointment of counsel in “any proceeding for terminating parental rights or any rehearing or appeal thereon.” Although Rogers argues that allowing grandparent visitation amounts to a termination of her parental rights, OCGA § 15-11-80 states that an order terminating parental rights “terminates all the parent’s rights and obligations with respect to the child.” (Emphasis supplied.) Thus, it is clear that an action seeking grandparent visitation rights is not a “proceeding for terminating parental rights” as that language is used in OCGA § 15-11-85. Because Rogers has not shown an entitlement to appointed counsel, the trial court did not err in denying her motion.

6. On February 9, 1998, Rogers filed a petition to proceed in forma pauperis, seeking “[a]ccess to the court transcripts . . . that are priced out of her reach” and waiver of all court costs and filing fees. The trial court granted the motion effective February 13, 1998, stating, among other things, that “[Rogers] has been granted leave to proceed in forma pauperis and all future transcript costs are waived pursuant to Superior Court Rules.” Rogers contends that the reference to “all future transcript costs” precluded her from obtaining complete transcripts of the hearing on Barnett’s petition. However, because Rogers did not raise this enumeration in her application for discretionary appeal, we cannot consider it here. Parham v. Lanier Collection Agency &c., 178 Ga. App. 84 (341 SE2d 889) (1986). Moreover, nothing in the record shows that Rogers attempted to obtain any transcripts and was prevented from doing so by the language of the court’s order. Rogers submitted partial transcripts of the proceedings, including her own testimony at the visitation hearing and testimony on a contempt motion filed by Barnett. Rogers never sought to clarify the trial court’s order and never specifically requested that the trial court approve payment for the complete transcript of all proceedings. Accordingly, she has not carried her burden of showing that she was harmed by the language of the trial court’s order. See Miller v. State, 222 Ga. App. 641-642 (475 SE2d 690) (1996) (affirming dismissal of appeal where defendant who had filed affidavit of indigence “failed to pay for the transcript or to take any steps to have the State pay for the transcript. . . . [I] t is the obligation of a defendant/appellant to at least . . . request that a transcript be filed and the State billed.”).

Decided March 10,1999

Reconsideration denied March 30,1999

Kelley A. Rogers, pro se.

Dubberly & McGovern, Joseph D. McGovern, for appellee.

Judgment affirmed.

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

       Rogers’ third enumeration reads as follows: “The trial [cjourt erred in that the evidence does not support the findings of fact.” In her brief, however, Rogers argues that the trial court’s written order did not contain specific findings of fact supporting its conclusion that visitation was in the child’s best interests and that the child would be harmed in the absence of visitation. In order to claim error based on the trial court’s failure to make adequate findings of fact and conclusions of law, it is necessary to properly enumerate such failure as error. See Jardine v. Jardine, 236 Ga. 323 (1) (223 SE2d 668) (1976); Brown v. Brown, 237 Ga. 201-202 (227 SE2d 360) (1976). It is at least questionable whether Rogers’ enumeration is sufficient to preserve this argument for appeal. Moreover, in her application for discretionary appeal, Rogers expressed this enumeration in more specific terms, making it clear that she was challenging only the sufficiency of the evidence presented at the hearing, and not the adequacy of the trial court’s order. We are limited on appeal to those matters enumerated by an appellant in her application for discretionary review. Parham v. Lanier Collection Agency &c., 178 Ga. App. 84, 86 (2) (341 SE2d 889) (1986). Because Rogers did not raise the adequacy of the trial court’s order in her application, we cannot consider it here.

       The motion to dismiss also alleged that the petition was not brought in good faith.


text:
    A98A1899.
    SECOND CONTINENTAL, INC. et al. v. ATLANTA E-Z BUILDERS, INC. et al.
    (514 SE2d 846)
   McMurray, Presiding Judge.

This appeal is taken from a plaintiffs’ judgment on a claim for tortious interference with business relations which arose in connection with a dispute as to the title to certain real property. Defendant Second Continental, Inc. is in the business of buying properties from counties and municipalities that have been foreclosed upon for nonpayment of real property ad valorem taxes. On November 20, 1992, Second Continental purchased a number of such properties, one of which constituted a part of the real property upon which plaintiff Atlanta E-Z Builders, Inc. was building a subdivision. Georgia Federal Bank, an active construction lender for plaintiff Atlanta E-Z Builders with regard to the subdivision, was provided via certified mail with a copy of a letter, written on behalf of defendant Second Continental hy its president, defendant Finnegan, and containing allegations with respect to the disputed property that “we have purchased the subject tract from Fulton County. . . .” The following day, January 15, 1993, the bank responded with a letter to plaintiff Atlanta E-Z Builders stating that it would not make further loans in the subdivision “until such time as any title problems have been corrected.” Plaintiffs presented evidence that thereafter it was not possible to obtain significant further financing for the subdivision from Georgia Federal Bank or any other source until the title issues were finally resolved three years later.

The original complaint filed by plaintiff Atlanta E-Z Builders contained three counts. The first two counts sought equitable relief by compelling defendants to permit redemption of the property interest conveyed by the Fulton County quitclaim tax deed received by defendants or a declaratory judgment that the deed received by defendants was void and unenforceable. These first two counts, along with defendants’ counterclaim to quiet title, were decided in a special master proceeding with the superior court adopting the conclusion of the special master that title to the disputed property lies in plaintiff Atlanta E-Z Builders and others in its chain of title while defendant Second Continental has no title or interest in the disputed property. This holding was affirmed by the Supreme Court of Georgia.

The case was thereafter tried before a jury on the third count alleging tortious interference. Before the trial, the complaint was amended to add as party plaintiff, Dania Investments Corporation, to which the subdivision real property had been conveyed. We should also note that Fulton County is also named as a defendant in the case, but, it along with numerous counterclaim defendants added before the special master in connection with the defendants’ counterclaim to quiet title, has had no active role in the proceedings with regard to the tortious interference claim which is the sole matter remaining in the case or at issue on this appeal.

Defendants appeal the final judgment awarding plaintiffs $94,800.05 in compensatory damages and $192,000 in punitive damages for a total judgment of $286,800.05. The enumerations of error challenge the sufficiency of the evidence to authorize the verdict returned by the jury and allege an error in the jury charge. Held:

1.

In order to recover on a claim “ Tor tortious interference with business relations the evidence must show the defendant (1) acted improperly and without privilege, (2) purposely and with malice with the intent to injure, (3) induced a third party or parties not to enter into or continue a business relationship with the plaintiff, and (4) for which the plaintiff suffered some financial injury.’ (Cit.) Subjective good faith, standing alone, is not an absolute defense to a claim of tortious interference with business relations, just as ‘malice’ within the meaning of such a claim need not be prompted by bad faith or personal dislike. ‘ “The term ‘malicious’ or ‘maliciously’ means any unauthorized interference, or any interference without legal justification or excuse. Personal ill will or animosity is not essential.” (Cit.)’ (Cits.)” Valdez v. Power Indus. Consultants, 215 Ga. App. 444, 447 (2) (451 SE2d 87) (1994).

Labat v. Bank of Coweta, 218 Ga. App. 187, 189 (2) (460 SE2d 831).

As two of defendants’ enumerations of error maintain that plaintiffs have failed to establish the requisite elements of the claim for tortious interference with business relations, we must determine whether there is “any evidence” to sustain plaintiffs’ claim. If there is some evidence to support the verdict, we may not disturb the trial court’s denial of defendants’ motion for directed verdict and for judgment notwithstanding the verdict. Ballenger Paving Co. v. Gaines, 231 Ga. App. 565, 566 (1) (499 SE2d 722); Gantt v. Bennett, 231 Ga. App. 238, 240 (1) (499 SE2d 75); John Crane, Inc. v. Wommack, 227 Ga. App. 538 (2) (489 SE2d 527).

2. Based on Threadmill, Ltd. v. First Union Nat. Bank of Ga., 207 Ga. App. 688, 689 (2) (428 SE2d 685), defendants argue that the judgment against them is not proper because there is no cause of action for interference with business relations based upon informing a person in a business relationship with a plaintiff of a matter that is one of public record. Pretermitting the question of what support, if any, for defendants’ proposition may be drawn from the Threadmill decision, we note that the facts stated by defendants to plaintiffs’ bank extended beyond an accurate representation of the public record. Defendants’ statement that they had purchased the disputed property was not an accurate representation of a matter of public record as demonstrated by the subsequent determination by the special master that defendants held no title in the disputed property.

3. Nor were the communications by defendants privileged. In this respect defendants rely upon the holding in NationsBank, N.A. v. SouthTrust Bank of Ga., N.A., 226 Ga. App. 888, 892 (1) (487 SE2d 701) that the privilege provided under OCGA § 51-5-7 (3) may be asserted as a defense to claims of tortious interference. This statute provides a privilege for “[statements made with a good faith intent on the part of the speaker to protect his or her interest in a matter in which it is concerned.” However, the concept of “good faith” is not measured by a subjective standard so that a misunderstanding or misinterpretation of the law excuses no one and provides no legal justification for unauthorized interference. Valdez v. Power Indus. Consultants, 215 Ga. App. 447 (2), supra. Similarly, defendants may not rely upon the argument that a statement of a legal opinion cannot serve as the basis of a tortious interference claim.

Defendants also cite F. S. Assoc., Ltd. v. McMichael’s Constr. Co., 197 Ga. App. 705, 707 (2) (399 SE2d 479), a case involving the application of OCGA § 51-5-7 (3), in the context of a claim for slander of title predicated on a materialman’s lien, which must be distinguished on the facts since the privilege was allowed based on a determination that the notice of lien filed in that case, unlike the representations of defendants in the case sub judice, contained no false statements.

4. The rejection of the subjective “good faith” upon which defendants rely, is, as stated in the Valdez decision, based on the principle that ignorance of the law excuses no one. Id. at 447. Several of defendants’ remaining arguments may be rebutted by application of this principle.

Subjective good faith, standing alone, is not an absolute defense to a claim of tortious interference with business relations, just as “malice” within the meaning of such a claim need not be prompted by bad faith or personal dislike. “ ‘The term “malicious” or “maliciously” means any unauthorized interference, or any interference without legal justification or excuse. Personal ill will or animosity is not essential.’ (Cit.)” Arford [v. Blalock, 199 Ga. App. 434, 440-441 (13) (405 SE2d 698)]; Forehand v. Perils Realty Co., 198 Ga. App. 165, 166 (400 SE2d 644) (1990).

Valdez v. Power Indus. Consultants, 215 Ga. App. 447 (2), supra. Thus, contrary to defendants’ argument, subjective “good faith” does not provide such legal justification as will negate malice. The jury was authorized to conclude that plaintiffs did not fail to prove the malice element of their claim. The same proof of malice also authorized the award of punitive damages.

5. Next, defendants contend that the trial court should have granted their motions for directed verdict and for j.n.o.v. as to the claims of plaintiff Dania Investment Corporation because this entity did not even exist when defendants sent their only communication to Georgia Federal Bank. Defendants incorrectly argue that “tortious interference with business relations requires that there be a party who actually had business relations that could be interfered with.” However, this is not correct since this type of claim can also be predicated on actions which induce a third party not to enter into a business relationship. Rodgers v. First Union Nat. Bank of Ga., 220 Ga. App. 821 (1), 823 (470 SE2d 246). Defendants’ argument ignores the evidence that the very creation of the Dania Investment Corporation was a defensive measure to cope with the circumstances which followed the letter to the bank and that the newly created corporation bore expenses arising therefrom. Furthermore, defendants’ reliance upon Johnston v. First Nat. Bank of Brunswick, 218 Ga. 772, 782 (3) (130 SE2d 698) is misplaced since the undifferentiated verdict in the case sub judice contains no portion which is invalid or reversible.

6. Plaintiffs did not fail to present evidence which authorizes the amount of compensatory damages awarded by the jury in its verdict. This is true even if we assume defendants are correct in arguing that the lost profits of plaintiff Atlanta E-Z Builders may not be determined with any certainty from the data available.

There is evidence of other damages to plaintiffs, including particularly the cost of taxes on the land while it remained unmarketable. And assuming the amount of these taxes paid or still owed at the time of trial should have been reduced to adjust for a small number of houses sold after the land title dispute began, primarily houses already under construction, we note that the evidence contains sufficient information as to such sales so as to permit the necessary adjustments and that after reasonable allowance for such adjustments, the balance of the taxes exceeds the amount of the jury verdict for compensatory damages. Furthermore, there was some additional evidence of small amounts of recoverable expenses. We note in this connection that the plaintiffs’ burden is to furnish sufficient data to estimate the damages with reasonable certainty, but it is not necessary to submit exact figures. Wheat Enterprises v. Redi-Floors, 231 Ga. App. 853, 855 (1) (a) (501 SE2d 30). Also,

“(t)he rule against the recovery of vague, speculative, or uncertain damages relates more especially to the uncertainty as to cause, rather than uncertainty as to the measure or extent of the damages. Mere difficulty in fixing their exact amount, where proximately flowing from the alleged injury, does not constitute a legal obstacle in the way of their allowance, when the amount of the recovery comes within that authorized with reasonable certainty by the legal evidence submitted. (Cits.)” Farmers Mut. Exchange v. Dixon, 146 Ga. App. 663, 664-665 (5) (247 SE2d 124) (1978).

Ga. Ports Auth. v. Servac Intl., 202 Ga. App. 777, 780 (3) (415 SE2d 516). Therefore, without more it is apparent that the verdict is within the range of the evidence as to damages. Bull Street Church of Christ v. Jensen, 233 Ga. App. 96, 103 (3) (504 SE2d 1). The trial court did not err in denying defendants’ motions for directed verdict and j.n.o.v.

7. By their final enumeration of error and argument, defendants maintain the trial court erred in charging the provisions of OCGA § 51-1-6 which provides:

When the law requires a person to perform an act for the benefit of another or to refrain from doing an act which may injure another, although no cause of action is given in express terms, the injured party may recover for the breach of such legal duty if he suffers damage thereby.

Decided March 16,1999

Reconsideration denied March 30,1999

Kirschner & Venker, Andrew R. Kirschner, Thomas J. Venker, for appellants.

James J. Gormley III, William W. Gardner, for appellees.

This Court has held that this Code section does not create a cause of action but simply authorizes the recovery of damages for breach of a legal duty. City of Buford v. Ward, 212 Ga. App. 752, 755 (3) (443 SE2d 279). This would suggest that the best practice would be to avoid including this statutory language in the jury charge in most if not all cases.

Defendants argue that the charge of this Code section provides the jury with alternative criteria for determining their verdict without application of the four elements of a claim for tortious interference with business relationships. However, we do not view the Code section, albeit inapplicable to the issues on trial, as likely to confuse or mislead a jury of ordinary intelligence, particularly when the charge as a whole is considered in the light of the evidence and arguments. Archer Motor Co. v. Intl. Business Investments, 193 Ga. App. 86, 89-90 (6) (386 SE2d 918); Robert & Co. Assoc. v. Tigner, 180 Ga. App. 836, 841 (1) (351 SE2d 82).

Judgment affirmed.

Blackburn and Eldridge, JJ, concur.


author: Beasley, Presiding Judge.

text:
    A98A1928.
    LOWERY et al. v. DALLIS.
    (513 SE2d 740)
   Beasley, Presiding Judge.

To collect a judgment against Burke, appellee Dallis served a summons of garnishment on Unique Entertainment, Inc., the payor of a promissory note in favor of Burke. After determining that Unique is now defunct, Dallis dismissed that action and brought the present action naming as garnishees appellees Lowery and Wilson, who guaranteed payment of the note.

Burke sold certain business assets to Unique pursuant to an agreement which rendered him liable for all preexisting business liabilities. The purchase price was paid by way of Unique’s promissory note to Burke. Wilson and Lowery, who are officers of Unique, signed the note as obligors. Unique later notified Burke that it was discontinuing payment of the note due to a claim against the business for which he was liable. Burke’s failure to have satisfied such a claim would have constituted a breach of contract.

Dallis sued Lowery and Wilson based on their liability to satisfy the unpaid balance of the note. In their answers, Lowery and Wilson asserted Burke’s breach of contract as a defense. Dallis traversed the answers. At an unreported traverse hearing, Lowery and Wilson entered pro se appearances. A transcript prepared from recollection by the judge shows that at the hearing the court determined that Lowery and Wilson are personally liable on the note because they signed as obligors and admitted their signatures are genuine. Based on their representations that they had made substantial payments on the note which could not then be documented, the court held a second hearing for the presentation of evidence of set-off.

Following the initial hearing, Lowery and Wilson hired counsel, who moved to dismiss Dallis’ traverse of Lowery’s answer on the ground that the court lacked jurisdiction over him because of insufficient service of process. Following a reported second hearing, the court denied the motion to dismiss, granted the traverses, and entered a money judgment against Lowery and Wilson. We granted their application for discretionary appeal.

1. The trial court did not err in denying Lowery’s motion to dismiss Dallis’ traverse of his answer, as the defense of insufficient service of process was waived by Lowery’s failure to raise it either in his answer or by motion filed before or simultaneously with the answer.

2. The trial court did err in granting Dallis’ traverses of Lowery’s and Wilson’s answers.

“The traverse of the garnishee’s answer shall be a statement. . . that the garnishee’s answer is untrue or legally insufficient. Such statement places in issue all questions of law and fact concerning the garnishee’s answer.”

In an action to enforce the obligation of an accommodation party to pay an instrument, the accommodation party may assert against the person entitled to enforce the instrument any defense . . . that the accommodated party could assert against the person entitled to enforce the instrument, except the defenses of discharge in insolvency proceedings, infancy, and lack of legal capacity.

Unique’s promissory note to Burke is a negotiable instrument, Lowery and Wilson are accommodation parties, and Unique is the accommodated party.

Consequently, in this action to obtain funds allegedly due on the note, Lowery and Wilson may assert as a defense that the payee of the note, Burke, is not entitled to all or part of the funds because he committed a breach of contract. Even though Lowery and Wilson admitted the validity of their signatures on the note, Dallis is not entitled to recover fully or at all if the defense is totally or partially proven.

If the validity of signatures is admitted or proved and there is compliance with [Code section 11-3-308 (a)], a plaintiff producing the instrument is entitled to payment if the plaintiff proves entitlement to enforce the instrument under Code Section 11-3-301, unless the defendant proves a defense or claim in recoupment.

Therefore, the trial court erred in ruling at the initial traverse hearing that Lowery and Wilson are liable on the note solely because they admitted the genuineness of their signatures. This ruling had the effect of limiting the issue at the next hearing to the question of set-off, thereby precluding them from establishing their defense.

3. For various reasons, Lowery and Wilson argue that they were entitled to judgment in their favor.

(a) Since they admittedly signed the note as obligors, unavailing is their argument that the note cannot be enforced against them without a piercing of Unique’s corporate veil.

(b) Nor are they in any way aided by their assertion that Unique’s debt to Burke is unenforceable as payable only on a contingency.

In the note, Unique obligated itself to pay the stated indebtedness in monthly installments followed by a balloon payment on specified dates. Lowery and Wilson claim that the indebtedness is contingent because Burke’s right to declare Unique in default is conditioned upon the happening of one of six specified events. The first is “default in the payment of any money due, and failure to cure default within 30 days from receipt of written notice to cure.” The argument that this renders the underlying debt contingent is frivolous.

Decided January 29,1999

Reconsiderations denied March 5,1999 and March 30,1999.

Begner & Begner, Alan I. Begner, for appellants.

Loewenthal & Jackson, Glenn A. Loewenthal, Gary E. Jackson, for appellee.

(c) Although Lowery and Wilson have raised a valid defense to payment of the note, the evidence of record does not establish that the defense is meritorious.

(d) Equally unsuccessful is Lowery’s and Wilson’s argument that Dallis’ traverses of their answers were untimely under OCGA § 18-4-85, in that the traverses were not served on them until over two months after their answers were filed.

OCGA § 18-4-85 requires the plaintiff to traverse the garnishee’s answer within 15 days after it is “served” if the garnishee “serves his answer on the plaintiff as provided for in Code Section 18-4-83.” OCGA § 18-4-83 provides that all answers by the garnishee shall be served upon the plaintiff or his attorney concurrently with filing, so long as the name and address of the plaintiff or his attorney appear on the face of the summons of garnishment. Service may be shown by written acknowledgment of the plaintiff or his attorney, or by the certificate of the garnishee or his attorney, attached to the garnishee’s answer.

Even though the name and address of Dallis’ attorney appeared on the summons of garnishment, no certificates of service were attached to the answers, and neither Dallis nor his attorney acknowledged service. The requirement that Dallis traverse the answers within 15 days of service was never triggered.

Judgment reversed.

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

       See OCGA § 9-11-12 (b), (h) (1) (B); Whitley v. Hsu, 260 Ga. 539 (397 SE2d 694) (1990); Pascoe Steel Corp. v. Turner County Bd. of Ed., 139 Ga. App. 87, 88 (1) (227 SE2d 887) (1976).

       OCGA § 18-4-86.

       OCGA § 11-3-305 (d).

       OCGA § 11-3-104.

       OCGA § 11-3-419 (a).

       See Speir v. Nicholson, 202 Ga. App. 405, 408 (2) (414 SE2d 533) (1992) (recognizing breach of contract as a defense to liability on a note).

       (Emphasis supplied.) OCGA § 11-3-308 (b); see Malone v. Price, 138 Ga. App. 514, 516 (1) (226 SE2d 623) (1976) (defendant has burden of proving defense to payment of note); see also Estridge v. Janko, 96 Ga. App. 246, 255 (2) (99 SE2d 682) (1957) (although burden is on garnishment plaintiff to sustain traverse of garnishee’s answer by a preponderance of the evidence, burden of evidence shifts and onus is on garnishee to prove existence and validity of any counterclaim he seeks to set off against debt owed by him to defendant).

       See generally American Ins. Co. v. Black, 46 Ga. App. 471, 473 (168 SE 85) (1933).


author: Smith, Judge.

text:
    A98A1998.
    CROWDER v. THE STATE.
    (513 SE2d 752)
   Smith, Judge.

Stephen L. Crowder was indicted on two counts of public indecency and was charged by accusation with eight more counts of public indecency. Following a jury trial, Crowder was convicted on both counts charged in the indictment and six of the eight counts charged in the accusation. Crowder’s motion for new trial as amended was denied, and he appeals, arguing that the trial court should have “set aside” one of the public indecency counts charged in the indictment. He also argues that the trial court should have granted his motion for a mistrial based on a GBI agent’s testimony that Crowder invoked his right to counsel during an in-custody interview. We find no reversible error, and we affirm.

1. Crowder first contends that the trial court should have “set aside” one of his convictions because the two count indictment alleged a single offense witnessed by two different persons.

The indictment at issue in this appeal contains two counts of public indecency occurring at the same place on the same date; the only difference in the language of these counts is the identity of the witnesses who observed Crowder’s behavior. Typically, when a defendant’s single lewd act is witnessed by two or more persons, only one crime is committed. See Hawkins v. State, 202 Ga. App. 163 (413 SE2d 525) (1991); State v. Chrisopoulos, 198 Ga. App. 876 (403 SE2d 460) (1991).

But here, Crowder committed two separate lewd acts. One witness testified that while she and a friend were clearing a lot she had just purchased, Crowder drove past the property and a short time later returned and stopped his car. The witness walked to the car and began talking with Crowder, who remained inside, until she saw that he had exposed himself. She quickly walked away but did not tell her friend, who was walking toward the car, what she had seen; she did not “know what to say to her, or how to stop her from getting there.” The second witness stated that she thought nothing of the first witness’s hasty departure from the car and walked to the car and began talking with Crowder. After a few moments, Crowder repositioned himself. This witness testified that he “threw his arm back up on the back seat and kind of swung his leg over.” She then saw that “he had his privates exposed.” Under these facts a jury could have concluded that Crowder committed two separate acts of exposure, and Hawkins and Chrisopoulos are thus distinguished. The trial court did not err in refusing to “set aside” one of Crowder’s convictions.

2. Crowder contends that the trial court erred by failing to grant a mistrial when a GBI agent twice testified that Crowder invoked his right to counsel.

During cross-examination of GBI agent Walter Lanier about his investigation of the charges against Crowder, defense counsel asked whether Lanier talked with Crowder at the jailhouse, and Lanier replied that he did so after a judge “called you and asked you to have your client there. When your client arrived, he advised he was not represented by you anymore.” Defense counsel then asked, “Are you telling this jury, now, that that’s what Steve Crowder said?” In response to this question, Lanier testified that Crowder “advised he needed a court-appointed attorney. . . . [I]t is up to the client to invoke his Miranda rights and ask for presence of counsel.” Defense counsel moved for mistrial, and the court ruled that Lanier’s testimony was “[a] direct response to the question” and advised counsel to move away from this line of questioning.

Despite the trial court’s direction, defense counsel continued to ask Lanier about the conversation between Lanier and Crowder. He asked Lanier whether he cursed at Crowder, which Lanier denied. He then asked, again, “It’s not true?” Lanier answered, “No, sir. The comment made ... I don’t know that I can admit this or not. After I had attempted to conduct the interview I had referred to, he had asked for advice and presence of counsel and a court-appointed attorney. He was being processed.” Crowder again unsuccessfully moved for mistrial.

As argued by Crowder, it is improper for the prosecution to elicit testimony for impeachment purposes concerning a defendant’s decision to remain silent or a defendant’s invocation of his or her right to counsel. See Sims v. State, 213 Ga. App. 151, 152 (2) (444 SE2d 121) (1994); Hill v. Turpin, 135 F3d 1411, 1414 (11th Cir. 1998) (discussing Doyle v. Ohio, 426 U. S. 610 (96 SC 2240, 49 LE2d 91) (1976)).

In Hill, the Eleventh Circuit vacated the conviction of Floyd Hill on the ground that the prosecutor commented on Hill’s rights to remain silent and to seek assistance of counsel. Despite an order granting a motion in limine prohibiting any testimony concerning Hill’s request for counsel, and despite a bench conference during which defense counsel reminded the prosecutor and the district judge of this ruling, the prosecutor in Hill twice elicited comments on direct examination concerning the defendant’s silence and his request for an attorney. Id. at 1414-1415. Hill unsuccessfully moved for mistrial. Id. at 1415. The prosécutor then again sought to elicit testimony during cross-examination of Hill concerning Hill’s silence and in closing argument commented on Hill’s silence. Id. at 1415. The circuit court concluded, as did the district court, that the prosecutor clearly violated the Doyle v. Ohio prohibition against comment on an accused’s silence or request for counsel. But contrary to the district court’s conclusion, as well as that of the Supreme Court of Georgia, that these violations constituted harmless error, the circuit court concluded that the prosecutor’s “references to Hill’s post -Miranda silence and request for counsel had a substantial influence in determining the jury’s verdict.” Id. at 1417. The circuit court consequently reversed the district court’s denial of habeas relief and vacated Hill’s conviction. Id. at 1412.

Decided March 1,1999

Reconsideration denied March 30,1999

Randall M. Clark, O. Dale Jenkins, Richard D. Phillips, for appellant.

Although we agree with Crowder that Lanier’s statements were improper under Doyle and Hill, we do not agree that reversal is required. First, to some extent, defense counsel may have invited the comments about which Hill complains by the direct questions he posed to Lanier. More importantly, assuming that Crowder has not waived' complaint on appeal concerning Lanier’s testimony, Hill is distinguished from this case. In contrast to the objectionable testimony in Hill, Lanier’s statements were not deliberately elicited by the prosecutor as blatant attacks on Crowder’s credibility. Furthermore, unlike the evidence in Hill, the evidence of Crowder’s guilt was overwhelming. Several female witnesses gave similar testimony concerning their encounters with Crowder. Nearly every incident testified to at trial involved the same pattern of behavior by Crowder: the female witness would approach Crowder’s car, would begin talking with him as he sat inside, and would see his genitals exposed. Moreover, we note that the jury acquitted Crowder of two counts charged in the accusation; had Lanier’s testimony been so pervasively influential, it is likely that the jury would have convicted Crowder on all counts charged in both the indictment and the accusation. Under these circumstances, we conclude that, unlike the testimony in Hill, Lanier’s testimony did not have “ ‘ “substantial and injurious effect or influence in determining the jury’s verdict,” ’ ” Hill, supra at 1416, and we affirm.

Judgment affirmed.

Johnson, C. J., and Senior Appellate Judge Harold R. Banke concur.

Dupont K. Cheney, District Attorney, J. Thomas Durden, Assistant District Attorney, for appellee.

       Crowder was the Chief of Police in Darien, Georgia. In the indictment involved in this division, he was charged with performing “a lewd exposure of his sexual organ” in the presence of two different female witnesses, while he was inside a Darien Police Department automobile.

       For a more complete account of the facts in Hill v. Turpin, see Hill v. State, 250 Ga. 277 (295 SE2d 518) (1982).

       See Hill, 250 Ga. at 283 (4) (b).


author: Pope, Presiding Judge.

text:
    A98A2159.
    RAY v. FORD MOTOR COMPANY.
    (514 SE2d 227)
   Pope, Presiding Judge.

On October 2, 1992, Ann W. Ray drove her 1989 Ford Mustang up the incline of her driveway into her carport. The car’s rear tires came to rest just outside the lip of the carport pavement. Ray testified that based upon her usual habit, she believes that she placed the gear shift in the “park” position, although she has no specific recollection of doing so. She removed her keys and walked around the rear of the car to the passenger side to remove her four-month-old grandson from his car seat. Ray then noticed that the Mustang appeared to be rolling backward. She tried to run around behind the car to the driver’s side, intending to stop the car from rolling. However, the car knocked her down and then ran over her, pinning her underneath.

Eileen Muzio, a neighbor who witnessed the accident, came to Ray’s assistance. Taking the keys from Ray, Muzio jumped in the car and attempted to move the vehicle off Ray, but the car would not start. When Muzio looked down at the gear shift, she noticed that it was in the “drive” position. She then moved the gear shift to “park” and was able to start the engine and drive the car away from Ray.

Ray asserted claims against Ford Motor Company for negligence, fraud, breach of warranty and strict liability. The thrust of Ray’s claims was her contention that the 1989 Mustang suffered from a design defect in that it lacked an ignition/transmission interlock device, which prevents the removal of the ignition key unless the transmission is in the “park” position. After a five-day trial, the jury returned a verdict in favor of Ford, and Ray appeals.

On appeal, Ray lists six separate enumerations of error. However, her brief is divided into only two sections of argument in violation of Court of Appeals Rule 27 (c) (1), which requires that the sequence of arguments follow the order of the enumerations of error and that they be numbered accordingly. “Our requirements as to the form of appellate briefs were created, not to provide an obstacle, but to aid parties in presenting their arguments in a manner most likely to be fully and efficiently comprehended by this Court.” (Punctuation omitted.) Bennett v. Moody, 225 Ga. App. 95, 96 (483 SE2d 350) (1997). Despite this error, we will exercise “our discretion ... to consider the [two] main arguments presented, to the degree that we discern the enumerated errors discussed. [Cits.]” (Footnote omitted.) Thomas Financial Group v. Standard Chartered Bank, 225 Ga. App. 879 (1) (485 SE2d 237) (1997). However, because Ray provides no citation of authority or argument relating to her first two enumerations, they are deemed abandoned under Court of Appeals Rule 27 (c) (2).

1. Ray first contends that the trial court erred in granting Ford’s motion in limine to exclude evidence and expert testimony about a Ford database listing prior instances of inadvertent vehicle movement in cars lacking the ignition/transmission interlock device. Ray sought to introduce this evidence to demonstrate that Ford had notice of such incidents when it made the decision to omit the interlock device from the 1989 Mustang. The trial court granted Ford’s motion in limine, however, stating that Ray had failed to provide enough information to allow the court to determine whether incidents in the database were substantially similar to Ray’s accident.

In product liability actions, evidence of other incidents involving the product is admissible, and relevant to the issues of notice of a defect and punitive damages, provided there is a showing of substantial similarity. [Cit.] Without a showing of substantial similarity, the evidence is irrelevant as a matter of law. [Cits.]

(Punctuation omitted.) Gen. Motors Corp. v. Moseley, 213 Ga. App. 875, 877 (1) (447 SE2d 302) (1994).

The admission or exclusion of evidence is reviewed by an abuse of discretion standard. [Cit.] Questions of relevance are generally matters within the trial court’s discretion, and it is not error to exclude evidence that is not related to an issue at trial. [Cit.]

American Assn. of Cab Cos. v. Olukoya, 233 Ga. App. 731, 733 (1) (505 SE2d 761) (1998). See also Rose v. Figgie Intl., 229 Ga. App. 848, 850 (1) (495 SE2d 77) (1997) (a decision to exclude evidence of similar incidents is reviewed for abuse of the trial court’s discretion).

Ray sought to introduce evidence of two separate groups of prior incidents drawn from the Ford database. Ray’s expert compiled these groups by sifting and re-ordering the information from the database. The expert was prepared to testify that he had discovered one group consisting of 546 incidents of inadvertent vehicle movement with a number of common factors: (1) the key was out of the lock or could be withdrawn from the lock; (2) the engine was not on; (3) no mechanical factor affected the accident; and (4) the shifting mechanism was not located on the steering column. Ray offered no further specifics about any of the 546 incidents. She argues that these factors were sufficient to demonstrate that the 546 incidents were substantially similar to Ray’s accident because: (1) Ray had been able to remove her key from the Mustang; (2) the engine was not running; (3) her car had no mechanical problems that contributed to the accident; and (4) the Mustang had an automatic overdrive transmission, which included a floor-mounted gear shift. Ray also sought to introduce testimony regarding a group of 20,000 incidents of inadvertent vehicular movement, compiled without regard to the underlying circumstances of the incidents. She contends that this evidence was relevant to show the extent and seriousness of the problem.

In support of its motion to exclude this evidence, Ford submitted the affidavit of Lee C. Carr, a former Ford employee, whose job responsibilities included the compilation of the database. Carr stated that the database was actually five different databases compiled by Ford engineers and lawyers from a variety of sources, including consumer complaint and service records, attorneys, government officials, fleet operators, newspapers and consumer representatives. Additional information came from a hotline program Ford set up to solicit comments in response to an investigation by the National Highway Traffic Safety Administration (NHTSA). Thus, Ford argued that the information in the database was hearsay.

Carr’s affidavit noted various problems with the database resulting from these sources and the method used to create the database. He noted that the incidents were not confined to any particular model or year and that some of the information dated back to the 1960s. Moreover, the information was encoded into the database by employees who liad no personal knowledge of the events, but who were simply instructed to input the information from the various source documents into designated codes. The codes utilized were extremely broad, and any one designation could include a wide variety of fact patterns. If the source documents failed to contain certain information, it was entered as unknown or under multiple codes to indicate that several possibilities existed. The database also failed to take into account various underlying factors — such as whether the parking brake was engaged, whether the car was on level ground or an incline or whether the vehicle was unoccupied — because this information was unknown or missing from the source documents.

Further, Carr stated that the information in the database has not been verified, and at least some of the information is known to be inaccurate. Ford had also determined that the database contained a number of duplicate entries.

In Gen. Motors Corp. v. Moseley, 213 Ga. App. at 877-878, the plaintiffs sought to establish notice by referring to a number of prior lawsuits and deaths, which they claimed were similar to the defect at issue. However, they failed to provide any information regarding the incidents underlying the lawsuits. We found that the plaintiffs had failed to establish the required similarity between the prior lawsuits and the accident at issue and that the evidence should not have been admitted. Id.

In this case, because Ray does not even argue that the group of 20,000 prior incidents has any similarity to her accident, she clearly has failed to meet the foundational requirements for admitting this evidence. While Ray did cite to four factors among the group of five hundred forty-six incidents that she claims are consistent with her accident, Ford introduced uncontroverted evidence that the information from which Ray’s expert gleaned these factors was unreliable. In the absence of the underlying source documents or any other verification of the database, the trial judge lacked sufficient information to determine whether the incidents were substantially similar to Ray’s accident. Therefore, we find no abuse of discretion in the trial court’s decision to grant Ford’s motion in limine.

Ray also contends that the trial judge erred in reaffirming its ruling on the motion in limine following the testimony of General Jerry Currie, head of the NHTSA. Currie testified that in 1988 the NHTSA amended its rules to require that ignition/transmission interlocking devices be installed on all cars. In explaining what led to the change, Currie stated that the evolution of the rule had been a 30-year process and discussed the materials NHTSA would have reviewed in making the 1988 amendment. Ray argues that this testimony opened the door to the admission of the prior incidents from Ford’s database because Currie testified that NHTSA reviewed its own historical files before initiating the rule change. We disagree. Nothing in Currie’s testimony alters the fact that Ray failed to establish the proper evidentiary foundation for the introduction of the prior incidents. Accordingly, the trial court did not abuse its discretion in reaffirming its ruling on the motion in limine.

2. Ray next asserts that the trial court’s charge with respect to Ray’s own negligence was erroneous. In the first instance she claims it was error for the court to give the pattern jury instructions on contributory and comparative negligence over her objection, because at trial she pursued only a claim for strict liability. Ray asserted claims for both strict liability and negligence in her complaint. In the pretrial order, however, Ray makes no mention of strict liability per se, but asserts only that she is entitled to damages based upon Ford’s negligence. Moreover, Ray’s counsel declined Ford’s attorneys’ suggestion during the charge conference that Ray dismiss her negligence claims and proceed only on her strict liability claim. Under these circumstances, the trial court was entitled to conclude that Ray had not given up her claims of negligence, and therefore, it was not error to charge the jury on contributory and comparative negligence.

Ray also argues that the judge’s charge on the relationship between plaintiff’s negligence and her claim for strict liability improperly confused the jury. “It is a fundamental rule in Georgia that jury instructions must be read and considered as a whole in determining whether the charge contained error.” (Citations and punctuation omitted.) Dent v. Mem. Hosp. of Adel, 227 Ga. App. 801, 805 (1) (490 SE2d 509) (1997); Jordan v. Santa Fe Engineering, 198 Ga. App. 600, 602 (2) (402 SE2d 304) (1991).

The trial judge charged the jury that “under Georgia law, contributory negligence of the plaintiff is not a defense to a claim of strict liability for product caused harm.” Moreover, at the joint suggestion of counsel, the judge agreed to preface his charge on contributory and comparative negligence by stating that it was applicable to the plaintiff’s claim for negligent design. Then, after the judge brought the jury back into the courtroom to give an omitted charge, he also charged

Members of the jury, I charge you that the claims of Mrs. Ray’s negligence or contributory negligence is applicable only to the plaintiff’s claim based on negligent design, which is one of the plaintiff’s two claims, the other being a claim for strict liability for product caused harm to which her negligence or contributory negligence is not applicable with respect to the standard of care.

We find that when viewed as a whole the charge was not confusing or misleading. See generally Dent v. Mem. Hosp. of Adel, 227 Ga. App. at 805-806. Accordingly, the trial court’s charge with regard to Ray’s own negligence was not erroneous.

3. Further, Ray argues that the trial court erred in failing to recharge on these issues after the jury asked the judge, ‘What verdict does the law require in the event that both parties are considered to have equal liability?” Ray’s attorney proposed that the trial court respond by stating,

The answer to the question is dependent upon what is meant by, quote, equal liability, unquote. If what is meant is that you feel that the burden of proof has only been carried fifty percent, then the plaintiff has not carried her burden and the defendant is to prevail. If what is meant is that the negligence of the plaintiff and the defendant equally contributed to the accident on a proximate cause basis, then, one, the defendant is entitled to prevail on the plaintiff’s claim for negligence; and two, the plaintiff is entitled to prevail on her claim for damages under her strict liability claim for product caused harm.

The judge declined to give the suggested charge and, instead, replied that “[t]he court has charged you on the law in this case, and you should rely on your recollection of the charges that were given to you.”

We find that the trial court was correct in refusing to give Ray’s requested charge. The proposed charge was confusing and failed to contain a complete, and therefore accurate, statement of the law. For example, Ray’s proposed charge did not take into account that assumption of risk is a defense to strict liability. See Deere & Co. v. Brooks, 250 Ga. 517, 518-519 (1) (299 SE2d 704) (1983).

Nevertheless, we find that it was error for the judge to fail to clarify the law in response to the jury’s question.

It is well established that when the jury requests the court to re-charge them on any point, it is the duty of the court to do so. The necessity that the jury clearly understand the law in order to render a lawfully arrived-at verdict renders it imperative that pertinent points of law be repeated or clarified or both, to set the jury on the right course in the event of questions.

(Citations and punctuation omitted.) Glisson v. Glisson, 268 Ga. 164, 165 (1) (486 SE2d 167) (1997).

Despite the trial court’s accurate instructions on comparative and contributory negligence, the question demonstrated the jury’s lack of understanding as to how to apply these principles to Ray’s claims.

As a result of the jury’s confusion, and the court’s refusal to remove it and clarify the law by answering the question[], the jury may well have based its decision on an erroneous understanding and application of the principles of comparative negligence.

Brown v. City of Fitzgerald, 177 Ga. App. 859, 860 (1) (341 SE2d 476) (1986). Therefore, the judge had the responsibility to respond to the jury’s question and to clarify the applicable law, either by repeating her earlier charge or by giving a clarifying charge. “Merely sending a message to the jury to consider the instructions previously given was insufficient under the circumstances.” Id. at 861 (1).

Accordingly, we find that the trial court committed reversible error when it refused to re-instruct the jury as to the point of law raised by their question.

Judgment reversed.

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

Decided March 10,1999

Reconsideration denied March 30,1999

Glover & Davis, J Littleton Glover, Jr., for appellant.

Long, Weinberg, Ansley & Wheeler, Mary D. Owens, Matthew T. Allen, Frederick N. Sager, Jr., for appellee.