text:
    77501.
    THRASH v. GEORGIA STATE BANK OF ROME et al.
    (375 SE2d 112)
   McMurray, Presiding Judge.

In this “wrongful dishonor” case, we are called upon to decide whether plaintiff was a bank “customer” within the meaning of OCGA § 11-4-402. We hold that he was not and affirm the trial court’s grant of summary judgment to the bank.

On March 14, 1983, Tabb Auto Salvage Company was duly incorporated under the laws of the State of Georgia. “Tabb” was an acronym formed by the initial letters of the last names of the corporation’s shareholders: Glenn Lamar Thrash, Sr., C. King Askew, Robert M. Brinson and Robert L. Berry.

The corporation’s board of directors consisted of Askew, Brinson and Berry. Thrash, a minority shareholder in the corporation, held the office of president.

The corporation did business in Rome, Georgia, under the registered trade name “Thrash Tire Outlet.” On April 1, 1983, it opened a commercial checking account with the bank. The name “Tabb Auto Salvage d/b/a Thrash Tire Co.” appeared on the corporation’s checks. Thrash, Askew, Brinson and Berry were all authorized to sign the checks.

On September 24, 1984, the corporation borrowed $71,678.09 from the bank. The note was signed by Thrash, as president, and Askew, as secretary of the corporation. It was personally guaranteed by Thrash, Askew, Brinson and Berry.

On May 15, 1985, the bank froze the corporation’s checking account. (Apparently, the bank feared that corporate assets collateralizing the note were being removed from the corporation’s premises.) As a result, corporate checks written by Thrash were dishonored.

Thrash was arrested subsequently on bad check charges. In the meantime, on May 16, 1985, Thrash was ousted from his office as president of the corporation by the other shareholders.

Thrash brought suit against The Georgia State Bank of Rome and Marc Duncan d/b/a Interstate Battery Systems of Northwest Georgia (“Interstate”). He alleged that the bank wrongfully dishonored checks which he had written; that one such check was delivered to Interstate; and that the wrongful dishonor of that check led to plaintiff’s arrest and incarceration. It was also alleged that the bank wrongfully dishonored a check which plaintiff had written and delivered to the Employment Security Agency and that, as a result, plaintiff faced additional criminal or civil penalties. Defendants answered the complaint and denied any liability to plaintiff. Thereafter, following discovery, the bank moved for summary judgment.

In support of its motion for summary judgment, the bank submitted the affidavits of E. William Roberts, its Senior Vice-President. He averred that he was the bank officer responsible for the corporation’s account; that he considered the corporation “to be the Bank’s creditor”; that plaintiff represented himself to be the president of the corporation; that the corporation defaulted on its note with the bank; that Messrs. Askew, Brinson and Berry paid the corporation’s obligation to the bank; and that plaintiff did not pay the corporation’s obligation to the bank.

In opposition to the bank’s summary judgment motion, plaintiff submitted an affidavit in which he averred: “To my knowledge, no stock of the corporation was ever issued to any stockholder. Additionally, this corporation was undercapitalized ... I made all the decisions regarding the operations of the corporation. Specifically, I loaned the corporation money on several occasions; I saw to the daily operations of the corporation; I made all of the major decisions of the corporation. Indeed, I was the corporation.”

The trial court granted the bank’s motion for summary judgment. This appeal followed. Held:

In pertinent part, OCGA § 11-4-402 (which is identical to UCC § 4-402) provides: “A payor bank is liable to its customer for damages proximately caused by the wrongful dishonor of an item . . Was plaintiff a “customer” of the bank as that term is used in this Code section?

“ ‘Customer’ means any person having an account with a bank . . OCGA § 11-4-104 (1) (e). Plaintiff did not have an account with the bank. It was the corporation, Tabb Auto Salvage Co. d/b/a Thrash Tire Outlet, which had the account. Plaintiff was merely an officer and shareholder of the corporation. Accordingly, plaintiff cannot maintain an action against the bank for “wrongful dishonor.” Loucks v. Albuquerque Nat. Bank, 76 N.M. 735 (418 P2d 191) (1966); Farmers Bank v. Sinwellan Corp., 367 A2d 180 (Del. 1976); Kesner v. Liberty Bank &c. Co., 390 NE2d 259 (Mass. App. 1979); Koger v. East First Nat. Bank, 443 S2d 141 (Fla. App. 2 Dist. 1983).

Relying upon Kendall Yacht Corp. v. United Cal. Bank, 123 Cal.Rptr. 848 (50 Cal. App.3d 949) (1975), plaintiff contends he should be considered the bank’s customer even though the corporation was the nominal depositor. In that case, the Kendalls brought suit against United California Bank for the wrongful dishonor of checks. Since the Kendalls’ corporation was the nominal depositor, the bank defended on the ground that the Kendalls were not customers. The appellate court disagreed. It recognized that, as a general proposition, owners or officers of a depositor corporation are not customers of a bank within the meaning of UCC § 4-402. It held, however, under the circumstances of that case, that the Kendalls were customers. What circumstances led the Kendall court to that conclusion? The Kendalls’ corporation was undercapitalized and it never issued stock. The Kendalls were the prospective principal shareholders of the corporation. They personally guaranteed the corporation’s debts and they alone controlled the corporation’s financial affairs. Essentially, the Kendalls and their corporation were one and the same. Moreover, the bank and others dealing with the corporation knew that that was the situation.

The facts in the case sub judice do not fit within the Kendall framework. Plaintiff was not the principal shareholder of the corporation. He was one of four shareholders and he owned a minority of the shares. Plaintiff guaranteed the corporation’s debt to the bank but he was not alone in doing so. All of the shareholders guaranteed the corporation’s debt to the bank. Moreover, the other shareholders, not plaintiff, paid that debt. Finally, the bank did not consider plaintiff to be its depositor. It viewed the corporation as its depositor. Based on these facts, it cannot be said that plaintiff and the corporation were one and the same. Compare Karsh v. American City Bank, 169 Cal.Rptr. 851 (113 Cal. App.3d 419) (1980). If they were, plaintiff would not have been ousted from the office of corporation president by the other shareholders.

Decided October 25, 1988.

Roy E. Barnes, for appellant.

Robert N. Farrar, Thomas D. Richardson, Clayton H. Hollingsworth, Jr., for appellees.

Plaintiff’s affidavit does not create a factual question with respect to the “customer” controversy. “ ‘Ultimate or conclusory facts and conclusions of law, as well as statements made on belief or “on information and belief,” cannot be utilized on a summary judgment motion. Similarly, the mere reargument of a party’s case or the denial of an opponent’s allegations will be disregarded.’ Wright & Miller, Federal Practice and Procedure: Civil § 2738, p. 695.” Cel-Ko Bldrs. & Dev. v. BX Corp., 136 Ga. App. 777, 781 (222 SE2d 94). Thus, plaintiff’s statement concerning the issuance of stock, made to his “knowledge,” does not rise to the level of fact. See Heavey v. Security Mgt. Co., 129 Ga. App. 83 (198 SE2d 694). Likewise, plaintiff’s conclusions concerning undercapitalization and alter ego must be disregarded. See Parlato v. MARTA, 165 Ga. App. 758 (302 SE2d 613); Fannin v. Fannin, 133 Ga. App. 681 (212 SE2d 16).

The evidence adduced upon the bank’s motion for summary judgment demonstrates that plaintiff was not a “customer” of the bank within the meaning of OCGA § 11-4-402 as a matter of law. Accordingly, the trial court did not err in granting the bank’s motion for summary judgment.

Judgment affirmed.

Pope and Benham, JJ., concur.

       The term “wrongful dishonor” encompasses actions for breach of contract and tort. By using that term, the Uniform Commercial Code’s drafters avoided the specification of a particular legal theory. See Uniform Commercial Code § 4-402, Official Comment 2.


source: Caselaw Access Project

author: Birdsong, Chief Judge. Beasley, Judge,

license: Public Domain

text:
    76764, 76765.
    TRUITT et al. v. MASON (two cases).
    (374 SE2d 771)
   Birdsong, Chief Judge.

This interlocutory appeal was granted to appellants Truitt, defendants in two personal injury cases. They complain of the trial court’s ruling which conditionally denied defendants’ request for production of the only transcript extant of traffic court proceedings. The trial court conditioned defendants’ access to the traffic court proceedings on terms that the plaintiff first be allowed to take the defendants’ depositions.

The briefs and arguments in these cases are many, but the issues are few. The plaintiff’s now-deceased husband, Jack Mason, was cited for failure to yield right-of-way and brought Bauer to defend him in traffic court. Bauer had a court reporter transcribe the proceedings. Defendants Steven Truitt, who -was driver of the Truitt Vehicle, and Mrs. Larry Truitt, were present without counsel. It is not disputed that the Truitts were not asked to participate or share in the cost of reporting, nor did they refuse; nor does it appear they knew they had a right one way or the other. Both Steven Truitt and Mrs. Larry Truitt testified and were cross-examined at the traffic court proceedings. Mr. Mason was found not guilty of the offense charged.

Thereafter, Mason’s widow filed personal injury suits against the Truitts, for herself and as executor of Mason’s estate. The Truitts’ attorney sought production of the transcript of the traffic court proceedings from the plaintiff. The plaintiff’s attorney Bauer refused, saying (a) it was his work product made in anticipation of civil litigation, and (b) the Truitts were not “parties” to the traffic court proceedings and therefore were not, like the parties in Giddings v. Starks, 240 Ga. 496 (241 SE2d 208), entitled to a transcript of court proceedings. Held:

Defendants are entitled to discovery of the transcript of the criminal court proceedings in which they testified and were cross-examined as to issues bearing vitally upon their alleged liability in this civil case. They are entitled to it, as a party to this action, under the Civil Procedure Act, OCGA § 9-11-26 (b) (3), which provides: “[A] party may obtain, without the required showing [of substantial need and undue hardship in obtaining a substantial equivalent by other means],” a “statement concerning the action or its subject matter previously made by that party.” This code section goes on to define “a statement previously made” as a “stenographic, mechanical, electrical, or other recording, or a transcription thereof, which is a substantially verbatim recital of an oral statement by the person making it and contemporaneously recorded.”

The traffic court proceedings in that court of record most assuredly were not the plaintiff’s attorney’s “mental impressions, conclusions, opinions or legal theories,” or work product, so as to be protected from disclosure under § 9-11-26 (b) (3). Court proceedings as transcribed by a court reporter under the direction of the judge have a much higher status than that (see Giddings, supra); nor can any attorney claim such personal and creative authority over court proceedings, even his or her own questions and comments, because once uttered and admitted, they become matters of public record which content certainly is not proprietary information, even if only one person possesses the only written account of it.

Whether the production of this transcript in compliance with § 9-11-26 (b) (3) should be limited solely to the statements of any of the defendants in this case, is a matter for discretion, but considering the record is of a public proceeding, the court’s discretion should be liberally exercised.

Decided October 5, 1988 —

Rehearing denied October 26, 1988

Gary L. Seacrest, Karsten Bicknese, for appellants.

The holding in Giddings v. Starks, supra, compelling discovery of the transcript in that case, was based on the fact that the parties seeking discovery in that case did not “expressly” refuse to participate in reporting costs. The Giddings decision clearly was not, as the appellee Mason speciously contends, based on the fact that the petitioners seeking discovery there were “parties” to the hearing of which discovery of the transcript was sought. As we earlier held, under the code section, the transcript in this case is discoverable because it is a statement made by the parties in this case, and mechanically transcribed.

The trial court’s ruling that the defendants would first have to submit to deposition appears to have no logical place in the situation; certainly the trial court cannot withhold justified discovery as a penalty or condition to force defendants to submit to deposition while being at the distinct and unnecessary disadvantage of not having seen the traffic court proceedings transcript where they made statements to which they are entitled.

Finally, the plaintiff complains generally of the unfairness in having had to pay $35 to have a reporter record and transcribe the traffic court proceedings, and in now being asked to share her transcript for only the expense of copy. We are, however, confident that the court can fashion a solution to this problem.

Judgments reversed.

Banke, P. J., and Beasley, J., concur specially.

Beasley, Judge,

concurring specially.

I concur but with the caveat that OCGA § 9-11-26 (b) (3) should not be permitted to be used as a bypass of the fees earned by a court reporter for copies of a transcript which is prepared pursuant to one party’s exercise of the right conferred by OCGA § 5-6-41 (j) and later desired by someone such as a prosecuting witness that participated in the court proceeding. See Robinson v. J. C. Penney Co., 124 Ga. App. 221, 224 (183 SE2d 782) (1971).

I am authorized to state that Presiding Judge Banke joins in this special concurrence.

Edward J. Bauer, for appellee.


author: Beasley, Judge.

text:
    76888.
    SMITH v. THE STATE.
    (375 SE2d 69)
   Beasley, Judge.

Smith appeals his conviction and sentence for criminal attempt (OCGA § 16-4-1) to commit murder (OCGA § 16-5-1).

The evidence construed so as to uphold the verdict showed the following: The office of the Magistrate Court of Lowndes County was under investigation by the GBI at the time Smith was chief magistrate. Smith got tired of the investigation, he could not function, he was depressed, and he resigned although it “broke [his] heart” to do so. He told an employee of the Magistrate Court that he blamed Sheriff Carter for initiating the investigation and that he would get even with him.

As early as 1982 (the incident on trial took place in 1987), Smith spoke of his intention to replace Carter as sheriff. He told one man he was going to get Carter out of the office “one way or the other.” He told another he had had a “run-in” with Carter. Soon after Smith resigned as magistrate, he related to a third person that he had been “railroaded” and “harassed” by the officials and he felt that Carter had been the instigator.

In an unrelated investigation, federal agents interviewed a man named Hall. Hall told FBI agent Sparks that three or four months earlier, Smith had talked to Hall about finding someone to kill Sheriff Carter. Sparks reported this to Bennett, Chief of Detectives for the Valdosta Police Department. After some time had elapsed and at Sparks’ urging, Bennett gave Hall a tape and recorder and asked him to record a conversation with Smith.

Hall taped a lengthy conversation with Smith in which Smith stated he wanted to be the sheriff: (Smith): “An election now and I don’t believe Paulk will run now.” (Hall): “You’re talking like if the Sheriff disappears?” (Smith): “If he just doesn’t come to work one day and he’s not around town anymore.” Later in the conversation, Hall told Smith that he “talked to [his] friend and it’s gonna cost $25,000. ...” and implied that he Hall would take care of the monetary cost if Smith would do him favors when Smith became sheriff. Smith agreed, detailed some of the possible favors, and spoke of his desire for revenge. He cautioned that “everything we do we’ve got to carefully plan it and carefully do it. I intend to (unintelligible). I don’t intend to leave them a trail.”

Smith stated it was going to be easy, that one could walk up to the sheriff when he goes to get in his car, get in the car with him and pull the radio unit out. Smith cautioned that he did not want the automobile “messed up”; it was brand new so it should not get any stains on it. When Hall inquired what Smith thought was the “best way to do it” Smith responded, “I would — I, I don’t know their business. They know, they know ways to do it. I don’t know their business. High powered or maybe close range. I don’t know what they use.” Smith concluded that the easiest and quickest way was to use a double barrel shotgun. Smith did not know where the sheriff lived but said he would find out. In a later taped conversation, Hall told Smith that Hall’s “friend” was coming to town and that they needed a map. Smith said he would get to work on it.

Following receipt of the initial tape, Chief Detective Bennett met with GBI agent Lang, who agreed to pose as the hitman promised by Hall. Lang met with Smith and Hall and recorded the conversation. Lang asked Smith if he wanted him to kill the sheriff. Smith replied, “You g_d_right. I want him gone.”

There followed other explicit discussions between Smith and Lang about Lang’s being in town for the purpose of killing the sheriff for money. When asked if he would provide a gun, Smith stated that it would be foolish to go buy one because that would leave a trail. Hall pointed out that Lang was wearing a gun but Lang voiced reluctance to use his own weapon. Smith and Lang debated the merits of different types of guns.

When asked for directions to the sheriff’s home, Smith replied that he would draw a map, that he had a county road map, and that he would describe the house so a blind man could find it. There was further discussion about money and future favors; Smith agreed to provide $500 to Lang and stated that he (Smith) needed to find out where the sheriff slept at night. A meeting was set for the next day.

In the morning, Smith met with Lang and Hall and gave Lang a detailed hand-drawn map to the sheriff’s home. At a second meeting that day, Smith drove with Lang to show him the way to the sheriff’s home. Smith described the sheriff’s daily routine and his appearance. He pointed out his house, possible escape routes, the sheriff’s automobile, and where the sheriff usually parked at the courthouse. Before they parted he agreed to verify the address. When Lang expressed some concern about getting paid, Smith assured him that he would because he might be needed again to kill another person, whom Smith identified.

The next day Lang met with Smith in the motel room. Smith said he was “ready” and everything was fine. He gave Lang $500 as the down payment for the killing and “the best we can do right now,” not knowing that this $500 which Hall had provided to him had been borrowed from the Valdosta Police Department. Smith said he had verified the address and gave it to Lang in writing, and they discussed the payment of the balance of the $25,000 fee, which was to be paid at “the end.”

Lang said that he would come back up from Florida the following week and “take care of this,” and Smith stated it would be best for himself to be in town when the killing occurred, so Lang was to call when he returned in order that Smith could make himself visible at places other than the homicide scene. Smith promised to “see what [he] could do” to get a shotgun because Lang was not sure he could get one. Smith told Lang how he could get a good look at the sheriff at the courthouse without arousing suspicion and went on to describe what he would do when he became sheriff.

The conversation ended with Lang stating that all he needed was the $500 to “get things rolling,” and Smith assuring Lang that he and Hall would “work out the balance of it.” Smith was arrested three days later.

The defense at trial was that Smith intended to run for sheriff and that he pretended to go along with Hall’s plan to murder Sheriff Carter in order to expose Hall, have Hall arrested, and thus enhance his chances of becoming the next sheriff.

1. Appellant contends that the trial court erred in denying his motion for a directed verdict of acquittal and in entering a judgment of conviction and sentence because the evidence was insufficient. He maintains that (1) the furnishing of the map and $500 payment did not constitute substantial steps toward commission of murder; (2) the $500 payment was induced by police entrapment so that it could not be considered as evidence; (3) if the $500 payment could not be considered as a substantial step because of entrapment, merely providing a map was not a sufficient and substantial step.

“A person commits the offense of criminal attempt when, with intent to commit a specific crime, he performs any act which constitutes a substantial step toward the commission of that crime.” OCGA § 16-4-1.

“ ‘ “In order to constitute the offense of attempt to commit a crime, the accused must do some act towards its commission. Commission means the act of committing, doing, or performing; the act of perpetrating . . . Mere acts of preparation, not proximately leading to the consummation of the intended crime, will not suffice to establish an attempt to commit it.” [Cit.] . . . “ ‘To constitute an attempt there must be an act done in pursuance of the intent, and more or less directly tending to the commission of the crime. In general, the act must be inexplicable as a lawful act, and must be more than mere preparation. Yet it cannot accurately be said that no preparations can amount to an attempt. It is a question of degree, and depends upon the circumstances of each case.’ ” [Cits.] . . . The “substantial step” language [of OCGA § 16-4-1] . . . “shifts the emphasis from what remains to be done ... to what the actor has already done. The fact that further steps must be taken before the crime can be completed does not preclude such a finding that the steps already undertaken are substantial... In addition to assuring firmness of (criminal) purpose, the requirement of a substantial step will remove very remote preparatory acts from the ambit of attempt liability and the relatively stringent sanctions imposed for attempts.” ’ [Cit.]” Adams v. State, 178 Ga. App. 261, 263 (2) (b) (342 SE2d 747) (1986).

(a) The map was an extraordinary one. It was a blueprint for the planned murder, complete with an arrow pointing to the victim’s residence, his address and a description of the premises. It was the culmination of substantial effort on the part of Smith to learn of the victim’s whereabouts. Smith cautioned the presumed hitman not to lose the document. The furnishing of the map was a significant and unequivocal act in the plan to have the sheriff killed.

(b) The payment of the money is not excluded as a product of entrapment. “ ‘Entrapment exists where the idea and the intention to commit the act originate with a police officer, who, by undue persuasion and deceitful means, induces the defendant to violate the law. But there is no entrapment where the officer merely furnishes an opportunity to a defendant who is ready to commit the offense. [Cit.]’ [Cits.]” Martin v. State, 175 Ga. App. 704, 705 (2) (334 SE2d 32) (1985). The jury was charged on the defense of entrapment, which they chose to reject, and the evidence supports that determination.

Smith’s relaying of the $500 to the supposed hitman with the agreement that it was to be the up-front money for the killing constituted another unequivocal act towards the killing. The agreement had been reached, and Smith himself was not to pay any of his own money but instead was to grant favors to Hall, the money provider, when he became sheriff after the competition was eliminated.

(c) Appellant ignores the numerous other acts which he engaged in which support the “substantial step” element of the offense and which are described in some detail above. The evidence supports the jury’s conclusion that Smith’s “conduct [went] beyond the sphere of mere solicitation or preparation” and “that the steps already undertaken [were] substantial.” Howell v. State, 157 Ga. App. 451, 456 (4) (278 SE2d 43) (1981). The facts of this case are akin to those in Howell, and based on the law applied there, which also governs here, a holding that the evidence supports a finding of “substantial step” is inescapable. See also State v. Gay, 4 Wash. App. 834 (486 P2d 341) (1971) and Braham v. State, 571 P2d 631 (1971), similar cases which are cited in Howell, supra at 456, for the view adopted by this court in Howell.

Thus, denial of defendant’s motion for directed verdict of acquittal and entry of judgment on the verdict was not error, as the evidence was sufficient to enable any rational trier of fact to find that Smith was guilty of criminal attempt to commit murder beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. Smith contends it was error to deny his motion to recuse the three judges of the Southern Judicial Circuit from presiding at the trial of his case because the victim of the charged attempt to commit murder was the sheriff (Smith was also indicted for soliciting another to procure someone to commit the murder, but was acquitted of the charge).

The motion was referred to the administrative judge of the judicial district, who was from another circuit. He certified the question to the Judicial Qualifications Commission pursuant to its Rule 22 but it declined to render an opinion on the subject. Opinion No. 104. On the basis of an evidentiary hearing and argument, the district administrative judge considered each one of defendant’s contentions as to bias and denied the motion. The chief judge of the Southern Judicial Circuit then tried the case. Since the others were not involved in the trial, the issue as to them is moot.

Appellant’s argument is based solely on Canon 3 C of the Georgia Code of Judicial Conduct, 251 Ga. 897, 900. Compare OCGA § 15-1-8. The canon is enforceable to govern the conduct of judges. Judicial Qualifications Comm. v. Lowenstein, 252 Ga. 432, 433 (1) (314 SE2d 107) (1984); In the Matter of: Inquiry Concerning a Judge No. 591, 250 Ga. 796, 797 (300 SE2d 807) (1983). See also United States v. Cavataio, 425 FSupp. 1250, 1254 (E.D. Mich. 1977); Wallace v. Wallace, 352 S2d 1376 (Ala. Civ. App. 1977).

The argument presented here is two-fold: (1) there was a special and close professional relationship in fact and in the minds of the public between the sheriff and the judges that per se constituted disqualification; (2) his treatment on matters of bond both before and after trial demonstrated lack of judicial impartiality.

(a) It is undisputed that there was a regular working relationship between the sheriff and court personnel including the superior court judges. But the existence of a working relationship in and of itself does not demonstrate or presume personal bias or prejudice on the part of the judges so as to run afoul of the Code of Judicial Conduct. See Mann v. State, 154 Ga. App. 677 (1) (269 SE2d 863) (1980). The nature of the judicial office is such that judges routinely and often daily interact with members of the local sheriff’s department and other courthouse personnel involved in operating and providing support services to the court system. A judge is not prohibited from presiding over a criminal case in which the alleged victim is one with whom he has worked by either the canon or OCGA § 15-1-8.

Nor does appellant show how the sheriff’s involvement as witness or as observer at the trial along with his family affected the impartiality of the court in conducting the trial. The day-to-day professional relationship does not per se create a disqualifying cloud.

(b) Smith asserts that the case was “infected” with “political overtones” beginning with the language in the indictment that the victim was “G. Robert Carter, Sheriff of Lowndes County, Georgia.” The judge, of course, has no control over the drafting of the indictment, so its wording does not reflect on the court’s impartiality vel non.

Smith next raises as circumstances of political infection that he was arrested on a warrant issued by a certain judge who later held a hearing on bond and set its conditions. Smith’s particular complaints in these regards need not be addressed because that judge did not preside at the trial.

Finally, the granting or denial of an appeal bond is in the discretion of the convicting court. OCGA § 17-6-1 (g). The judge who tried the case held a heating and denied appeal bond after determining that there was substantial risk that the defendant would commit another felony offense and would pose a danger to persons in the community if released on bond pending appeal. Thus, the trial court answered two of the questions posed by Birge v. State, 238 Ga. 88 (230 SE2d 895) (1976) in the affirmative, and those findings are supported by the record and not clearly erroneous. Pressel v. State, 161 Ga. App. 488 (287 SE2d 780) (1982). No appeal was taken as to the bond. The handling of the appeal bond does not evidence any lack of impartiality by the trial judge.

Defendant has failed to show that the denial of the disqualification motion was error, and he does not point to anything in the trial of the case which might raise an inference of bias on the part of the trial judge.

3. Appellant also contends that the trial court violated OCGA § 17-8-57 in expressing an opinion as to what had been proven by the testimony of GBI agent Lang, who testified about his conversations with Smith.

On cross-examination, Lang was asked about Smith’s refusals to Lang’s requests for money. He was then asked whether or not he reported the refusals to Detective Bennett and said, “Try as I might I can’t get him to give me any money.” Lang stated that was exactly what happened and then attempted to explain Smith’s thoughts at the time. Defense counsel objected that Lang could not testify as to what Smith was thinking and then the State objected that Lang was merely trying to explain his answer and that defense counsel was interrupting.

The court ruled that it would let Lang testify as to facts that he knew but not to facts that he merely speculated or conjectured about, and it instructed Lang that he was permitted to explain his answer.

Decided October 4, 1988 —

Rehearing denied October 26, 1988

J. Converse Bright, for appellant.

Lang testified that, “. . . Smith was going to get the money from David Hall and, and subsequently, — or have Hall, have Hall pay me the money. And if he could have gotten this thing done for nothing without him putting any money up, then he’d have been that much better oif. He wouldn’t have been out, out front with any money.”

Defense counsel objected that, “. . . I’d like to instruct the witness that it is strictly speculating and argument and nothing — it hasn’t anything to do with explaining his answer or any facts. And the Jury should be told to disregard it. He’s just arguing the case.”

The court responded, “I will not instruct the Jury to disregard it. The witness has again reiterated exactly what occurred, apparently, from the tapes that have been played.” The defense made no further objection in this regard and cross-examination of Lang proceeded.

Appellant urges that the court’s final comments not only allowed Lang to speculate as to his (Smith’s) motives in refusing to pay the money, but also expressed an opinion that what Lang said was what had been proved.

“ ‘The statutory inhibition [OCGA § 17-8-57] against an expression or intimation of opinion by the trial court as to the facts of the case does not generally extend to colloquies between the judge and counsel regarding the admissibility of evidence. [Cits.]’ [Cit.]” Havard v. State, 175 Ga. App. 798, 799 (334 SE2d 381) (1985).

Moreover, the defense made no objection following the court’s comments. “ ‘(T)he question of whether [OCGA § 17-8-57] has been violated is not reached unless an objection or motion for mistrial is made.’ [Cit.]” Smith v. State, 158 Ga. App. 330, 331 (2) (280 SE2d 162) (1981). Appellant acknowledges this but complains that the court’s instructions to “proceed” following its comments foreclosed the defense from further exception short of contempt of court. The court’s simple and ordinary instruction to proceed does not constitute, perceptually or actually, an attempt to stymie further objection by the defendant.

In any event, the comments do not express an opinion as to what had been proved relative to the guilt of the accused but rather merely explained that the witness was repeating what had already been heard.

Judgment affirmed.

Birdsong, C. J., and Banke, P. J., concur.

H. Lamar Cole, District Attorney, for appellee.


text:
    76916.
    DEPARTMENT OF TRANSPORTATION v. A. R. C. SECURITY, INC.
    (375 SE2d 42)
   Beasley, Judge.

Condemnor Department of Transportation appeals the denial of its amended motion for new trial following judgment on a jury verdict. Compensation of $225,000 was awarded to condemnee A. R. C. Security, Inc., for .553 acres of land at the southwest corner of the intersection of Georgia Avenue and Pulliam Street abutting 1-75/85 near the Atlanta Stadium.

1. Department of Transportation contends that the trial court erred in overruling its motion to strike the testimony of the condemnee’s witness, Dr. Verner, and to instruct the jury to disregard it as speculative and conjectural and failing to conform to recognized methods of appraisal for the legal measure of damages. Department of Transportation further contends that the court erred in allowing evidence of value of the property supplied by Verner on two grounds: 1) Verner did not appraise the property but made only a land use evaluation; 2) Verner’s testimony was based on a range of value by projecting “savings” in the amount of $45,000 to the condemnee, which was improper, speculative, and non-probative.

Verner, an associate professor of real estate and chairman of the department of real estate at Georgia State University, was hired by A. R. C. to do a highest and best use analysis of the property. Verner defined the highest and best use as that which would leave the most profit for the land or the highest value for the land after all of the other factors of production were appropriately rewarded. He concluded that the highest and best use of the property was as a headquarters office site for A. R. C., the principal business of which was providing various security services in the Atlanta area. This was the purpose for which A. R. C. bought the property in 1979.

Verner performed an arithmetic analysis to identify the highest and best use given certain information about the characteristics of the site and information about passing traffic and income levels in the neighborhood as provided by his colleagues, Drs. Rabianski and Carn. He also familiarized himself with the operation and needs of A. R. C. by visiting the company office and interviewing the company’s owner. Verner visited the condemned site several times and drove through the neighborhood both alone and with Carn and Rabianski. He testified that the approaches that he used in forming his opinion were valid and appropriate methods of evaluating and appraising property as generally recognized within the evaluation and appraisal industry.

Department of Transportation argues that the data supplied by Carn and Rabianski, while possibly shedding light on what the economic trends might be in the future, had no probative value as to the market value of the property on the date of taking, so that Verner’s reliance on such “speculative application of economic theory information” in determining his conclusion as to the highest and best use rendered his own conclusions speculative, inadmissible and irrelevant.

“Generally, just and adequate compensation is the fair market value of the condemned property at the time of taking. [Cit.]” Canada West, Ltd. v. City of Atlanta, 169 Ga. App. 907, 909 (1) (315 SE2d 442) (1984). “However, market value is not always the fairest or most accurate method of measuring the loss to the condemnee. [Cits.]” Dixie Hwy. Bottle Shop v. Dept. of Transp., 150 Ga. App. 839, 840 (1) (258 SE2d 646) (1979), vacated 245 Ga. 314 (265 SE2d 10) (1980), on remand 154 Ga. App. 405 (268 SE2d 442) (1980). Property may have a “peculiar value which may be over and above its market value. [Cits.]” 150 Ga. App. 839 at 841 (4). When fair market value will not afford just and adequate compensation because the property is not of a type generally bought or sold in the open market, such property is “unique.” Housing Auth. of Atlanta v. Southern R. Co., 245 Ga. 229, 230 (1) (264 SE2d 174) (1980). While replacement cost new less depreciation, income, and comparable sales are the three recognized techniques for determining market value, unique property is measured by a variety of methods other than the fair market method of valuation. Id. See also Dept. of Transp. v. Eastern Oil Co., 149 Ga. App. 504 (1) (254 SE2d 730) (1979).

There was testimony that the property was unique to A. R. C. in that it was located right next to the freeway which carried large volumes of traffic past it, allowing many people from both Atlanta and out of town to see a sign advertising A. R. C. Connected with this was the opportunity to build a fortress-like structure for the company office which would convey the image of security and in effect advertise the company’s ability to deliver security and protection services. The property was in a neighborhood where it would qualify for industrial revenue bond financing, an advantage not existent in many other areas. In addition, the property was used for parking for stadium events. There was evidence that at the time A. R. C. bought the property it was virtually the only undeveloped site in the immediate area with a good view to and from the expressway. It was on a corner and was zoned for commercial use.

This constituted sufficient evidence of the property’s uniqueness to submit the question to the jury. Dept. of Transp. v. White, 173 Ga. App. 68, 71 (4) (325 SE2d 397) (1984). Relevant, then, were factors about the property other than those traditionally constituting a fair market determination, including the highest and best use analysis provided by Verner and consideration of a range of value. The data supplied by Carn and Rabianski and relied on in part by Verner was not speculative. It was based on personal observation and characteristics of the property at the time of taking. Moreover, there was evidence that the uses for the land considered by Verner were reasonably probable so as to have an effect on the value of the land at condemnation. See State Hwy. Dept. v. Thomas, 106 Ga. App. 849 (1) (128 SE2d 520) (1962).

“ Tt has long been the policy of the Georgia appellate courts to be liberal in allowing matters to be considered by the jury which might affect their collective mind in determining the just and adequate compensation to be paid the condemnee. . . .’ ” Dept. of Transp. v. Brooks, 153 Ga. App. 386, 389 (2) (265 SE2d 610) (1980).

It was not error to refuse to strike Verner’s testimony in its entirety.

2. Appellant claims that the court erred in allowing testimony of condemnee’s witness Stripling about income to be earned from sign rental.

Stripling was a real estate appraiser who had experience in appraising sign and advertising values up and down 1-75/85 in Atlanta. He was asked by condemnee’s counsel to give his opinion as to what an owner would have to pay to duplicate in the immediate area the sign exposure of the condemned property at the time of the taking. Department of Transportation’s counsel objected on two grounds: 1) that the question purported to use an off-premises sign rate to determine and establish the value and/or rate of an on-premises sign, which would constitute an inappropriate comparison of two different entities; 2) that at the time of acquisition by Department of Transportation there was no evidence of a sign of any type on the property.

The court overruled the objection. It concluded that the condemnee was entitled to present evidence of loss of an opportunity to put up a sign if it chose to, that it was an ingredient the jury could consider if it found it appropriate to do so under the evidence and instructions of law. Stripling then rendered his opinion that the condemnee would have to pay $4,000 a month or $48,000 a year to duplicate the advertising A. R. C. could have done on its own property for its own business.

Department of Transportation argues that although Stripling stated his testimony was based on his knowledge of sign values in the area, the foundation for his experience in evaluating such matters was vague and appeared to be based on his knowledge of off-premises billboard signs and outdoor advertising along 1-75 at locations other than the subject property.

Stripling testified in some detail and was not vague about his experience in evaluating signage. Further, Stripling’s testimony as a whole does not support the conclusion that his knowledge and evaluation were based solely on off-premises signage, i.e., signs advertising the business of another. In addition, it is not a valid objection that Stripling’s knowledge was based on signs on other property because it is undisputed that at the time of taking there was no signage on A. R. C.’s property so an evaluation of actual signage on the subject property was not possible.

Department of Transportation further takes issue with Stripling’s testimony on the bases that off-premises signage was not permitted on the condemned property and that the likelihood of a variance was practically nil. However, Stripling’s testimony of value of the signage opportunity to A. R. C. was specifically as to on-premises advertising, i.e., A. R. C. advertising its own business.

There being evidence that there was a reasonable probability that the property could be used for the signage purposes testified to by Stripling, see Georgia Power Co. v. Cole, 141 Ga. App. 806 (1), 807 (2) (234 SE2d 382) (1977), it was not error to permit Stripling’s testimony.

3. Department of Transportation also contends that the lower court erred in failing to grant its motion to strike the testimony of condemnee’s witness Scott as speculative and without factual basis.

Scott, an independent real estate appraiser, determined that the fair market value of the property at its highest and best use on the date of taking was $365,000 for the main portion of the property, not including the value of one-half of an alley located at the rear. In this valuation, Scott considered the interim use of the property as a parking lot for stadium events.

Department of Transportation argues that as to the parking, Scott had not used the figures in his income stream which were reflected on the condemnee’s financial records and that his testimony as to an income stream of $36,000 a year as income generated by the parking business at the stadium was contradictory to the income stream of $20,000 annually furnished by Verner. Thus, Department of Transportation concludes, the gross income stream of $36,000 used by Scott in appraising the property had no actual basis and was contradictory and speculative at best, rendering his appraisal inaccurate. Department of Transportation adds that Scott did not give evidence of any comparable sales to support his market approach, although he said he used them in rendering that portion of the appraisal.

Scott’s valuation was computed on a market approach analysis. The parking revenue information was supplied to Scott by A. R. C.’s owner. Even assuming that Scott’s estimate of income stream from the stadium parking was at variance with the condemnee’s financial records or Verner’s opinion, and even assuming the failure to provide evidence of comparable sales, these factors would affect weight and credit rather than admissibility. OCGA § 24-9-80.

4. Appellant contends that the trial court erred in denying its motion for mistrial or in lieu thereof its request for an instruction to the jury to disregard a portion of the testimony of A. R. C.’s owner, Chouinard.

A. R. C.’s counsel questioned Chouinard about meetings with representatives from Department of Transportation. Counsel next asked him: “. . . Then I believe you said you had some other meetings. When do you recall the other meetings with the State Highway Department?” Chouinard responded, “A lady from the State Highway Department walked into my office one day in the beginning of 1983 and handed me a check for $50,000 and says we are taking your property.”

Department of Transportation objected that the testimony as a reporting of pretrial negotiation or compromise prior to acquisition was highly prejudicial and irremediable, but this mischaracterizes the testimony. It merely described the contact between condemnee and condemnor in which the latter announced the price it had determined to pay. This is not a situation where an unaccepted offer to purchase was being used to prove value. Compare DeKalb County v. Noble, 122 Ga. App. 373 (177 SE2d 117) (1970); State Hwy. Dept. v. Hilliard, 114 Ga. App. 328 (151 SE2d 491) (1966).

5. Appellant further contends that the court erred in not giving its requests to charge regarding the inadmissibility of negotiations and settlement proposals in condemnation proceedings.

Inasmuch as there was no prejudicial statement of negotiation or estimate by the condemnor to show value of the property, see Division 4, refusing the charge was not error.

6. Department of Transportation contends that the trial court erred in charging the jury regarding the loss of business or profits when there was insufficient evidence to substantiate the actual loss of profits or that a business was actually conducted by condemnee on the subject property requiring compensation separate from the intrinsic value of the land. It posits that the entire parking operation was conducted by one Ennis, not condemnee, who paid the corporation a portion of what he took in as a result of the use of the property for parking during stadium events.

Ennis worked for Chouinard since 1972 and worked for A. R. C. managing stadium event parking. Out of the cash revenue from the parking, Ennis paid himself and his workers and gave the rest to Chouinard via a bookkeeper/secretary. The fact that Chouinard did not take a more direct role in the parking operation does not alter the character of the profit generated by the property as revenue for A. R. C.

Decided October 14, 1988 —

Rehearing denied October 26, 1988

Charles C. Pritchard, Michael J. Bowers, Attorney General, Roland Matson, Senior Assistant Attorney General, for appellant.

Glenville Haldi, for appellees.

While it is true that there was some variation in the evidence of revenue from the parking operation as between that given by Ennis and reflected by the records kept by Ennis’ wife and that testified to by other of the condemnee’s witnesses, this discrepancy does not render it improper to submit the issues of lost business or profits to the jury. The sufficient admissible evidence of business loss, not remote or speculative, coupled with the evidence of the property’s uniqueness, see Division 1, authorized the charge on business losses. See Dept. of Transp. v. 2.734 Acres of Land, 168 Ga. App. 541, 542 (1) (309 SE2d 816) (1983).

Judgment affirmed.

Birdsong, C. J., and Banke, P. J., concur.


text:
    76986.
    HAYES v. THE STATE.
    (375 SE2d 114)
   Beasley, Judge.

Defendant appeals his convictions for two counts of arson in the second degree, OCGA § 16-7-61, and escape, OCGA § 16-10-52, while awaiting trial on the arson charges. He enumerates two bases for error: the trial court erred in allowing a police officer to give hearsay and opinion testimony; the trial court erred in permitting certified copies of defendant’s previous convictions to be admitted into evidence.

1. The first enumeration of error concerns three different objections made while a police officer was testifying for the State. Each enumeration may properly contain only one error. OCGA § 5-6-40 states: “set out separately each error . . . .”; see Veit v. State, 182 Ga. App. 753, 755 (357 SE2d 113) (1987); Hester v. Baker, 180 Ga. App. 627, 628 (1) (349 SE2d 834) (1986); MacDonald v. MacDonald, 156 Ga. App. 565, 566 (1) (275 SE2d 142) (1980). By violating the code’s procedural requirements, appellant not only risks our enforcing that law and declining to consider the merits, but also by combining them leaves the culling out of the various assertions to the mercy of our perception. With this warning, we will consider in this case each error which it is apparent is complained of. Hester, supra.

(a) On appeal, defendant contends that the police officer’s testimony was inadmissible inasmuch as it constituted unsupported opin- . ion and placed defendant’s character in evidence. During the trial the first objection was that the officer’s relating what the prosecution’s witness told him was hearsay. Because the credibility and veracity of that witness were under attack, the State sought to show by the officer that the witness had made prior consistent statements to the investigators. The prior consistent out-of-court statement of a witness who takes the stand and is subject to cross-examination is admissible as substantive evidence. Richardson v. State, 256 Ga. 746, 747 (5) (353 SE2d 342) (1987); Lumpkin v. State, 255 Ga. 363, 365 (4) (338 SE2d 431) (1986); Cuzzort v. State, 254 Ga. 745 (334 SE2d 661) (1985).

(b) As to the next two portions of testimony, the interjections were merely: “Objection.” After these were overruled, further explanation of the second was given, that the officer’s recounting his out-of-court statement of what he thought the defendant might do was prejudicial.

Objections to the evidence must state the grounds upon which they are based. Tucker v. State, 133 Ga. 470 (4) (66 SE 250) (1909). Merely stating “I object” is not sufficient to constitute a legal objection. McGahee v. State, 133 Ga. App. 964, 966 (4) (213 SE2d 91) (1975); Griffin v. State, 123 Ga. App. 820 (3) (182 SE2d 498) (1971). By failing to raise the grounds for objection at the time the evidence was introduced, defendant waived his objections. Reaves v. State, 242 Ga. 542, 551 (6) (250 SE2d 376) (1978); Tyner v. Sheriff, 164 Ga. App. 360, 361 (3) (297 SE2d 114) (1982). “ ‘An objection to evidence on the ground that it is irrelevant, immaterial and prejudicial is “entirely too vague and general to present any question for determination by the trial court, and the overruling of this objection did not constitute reversible error.” ’ ” Hart v. State, 185 Ga. App. 141 (2) (363 SE2d 599) (1987).

2. The second enumeration of error involves objections to two . separate admissions of certified copies of defendant’s convictions of other crimes. This, too, should have been treated by two enumerations of error instead of commingled into one.

The first objection was addressed to admission of defendant’s former conviction of escape in 1985 from the Rabun County Jail. The prosecution introduced this evidence to counter and impeach defend- * ant’s assertion that the escape of June 6, 1987, on trial, was induced because he was innocent of the arson charges and scared of going back to jail. The State sought to prove that defendant simply had and followed a penchant for escape unrelated to his guilt or innocence of the crime for which he was being held. Defendant’s explanation of the reason for his escape opened the door to evidence to rebut his specific testimony. See Whitt v. State, 257 Ga. 8 (2) (a) (354 SE2d 116) (1987); Jones v. State, 257 Ga. 753, 759 (1) (a) (363 SE2d 529) (1988); Williams v. State, 257 Ga. 761, 762 (4-5) (363 SE2d 535) (1988).

The second objection was to two exhibits showing defendant’s convictions for thefts of two Pontiac Firebirds in February and October 1985 and burglary on the same date as the February car theft. The State introduced these exhibits after defendant volunteered the following unresponsive statements when being cross-examined: “Go ahead while he brought it up the conviction down there in Toccoa on the red Firebird ... I got too much of this background I wish you’d get out of my background, my background ain’t got nothing to do with this . . . No I did not [steal the Honda for which I am on trial for burning], if I did it I’d say just like I did on every other charge I’ve ever been to court with I’d come up here and say I did it and go on to prison and do my time and get out.”

During his testimony in presenting his defense, Hayes had stated that “if they want to look down on me about my past I could talk about my past if that’s what people wants, but I’m guilty of my past and ain’t nothing I can do about that, ...”

The State tendered the two exhibits after defendant’s statements on cross-examination, showing the pleas of guilty, the three crimes involved, and the sentences. The objection that these exhibits put defendant’s character in evidence and were irrelevant to the issues was overruled. On appeal the complaint is only about one of the car theft convictions, but which one is left to our guess. If the one not enumerated, and the burglary, remain in evidence, the one left for our consideration presents what may be a harmless error situation. Also, the argument on appeal is only that the evidence of the automobile theft was inadmissible because it put defendant’s character in issue. Appellant does not argue that it was not relevant.

In any event, we will consider both exhibits, that is, all three crimes. The question is controlled by the law set out in Jones v. State, 257 Ga. 753, 754, supra. OCGA § 24-9-20 (b) is the authority for appellant’s argument, but it does not end the inquiry. As the Supreme Court demonstrated in Jones, supra at 759, there are instances when past criminal conduct is admissible because relevant to some issue, even though defendant has not put his character in issue. That is the case here. Defendant admitted prior criminal conduct and thereby, as analyzed by the Supreme Court in Jones’ category (b), “raised an issue which may be fully explored by the State on cross-examination.” Thus the evidence was admissible under the exception provided in OCGA § 24-2-2.

Judgment affirmed.

Birdsong, C. J., and Banke, P. J., concur.

Decided October 26, 1988.

W. Brek Barker, for appellant.

Michael H. Crawford, District Attorney, Leonard Geldon, Assistant District Attorney, for appellee.


author: Benham, Judge.

text:
    77040.
    OMAC, INC. v. SOUTHWESTERN MACHINE & TOOL WORKS, INC.
    (374 SE2d 829)
   Benham, Judge.

Appellant and appellee entered into an agreement whereby appellee manufactured and sold to OMAC certain specified parts made from materials supplied by OMAC. Appellee filed suit to recover monies owed it, and appellant counterclaimed. A jury returned a verdict in favor of appellee, and appellant appeals, contending the trial court erred in charging the jury on the principles espoused in OCGA §§ 11-2-601; 11-2-602; and 11-2-606.

The contested instructions are part of the Sales Article of the Uniform Commercial Code which appellant contends is inapplicable because there was no sale involved. “A ‘sale’ consists in the passing of title from the seller to the buyer for a price.” OCGA § 11-2-106 (1). “Article 2 of the Uniform Commercial Code is expressly limited to transactions involving the sale of goods. [OCGA § 11-2-102]. ‘(A) contract for services and labor with an incidental furnishing of equipment and materials’ is not a transaction involving ‘the sale of goods’ and is not controlled by the [UCC]. [Cits.]” W. B. Anderson Feed &c. Co. v. Ga. Gas Distrib., 164 Ga. App. 96 (296 SE2d 395) (1982). The record does not contain a contract outlining the parties’ duties and responsibilities, but appellee certified that the work performed by it was done on materials supplied by appellant and conformed to blueprints and revisions supplied by appellant. The prices quoted (and presumably charged) by appellee for its work were based upon appellant’s supplying the materials. In essence, appellee agreed to perform a service, making appellant’s material into the parts appellant needed. Because it used materials supplied by appellant, appellee’s prices reflected only the labor cost of making the parts appellant ordered. Inasmuch as appellee sold a service and not goods to appellant, the UCC was inapplicable and the trial court erred in giving the charges excepted to.

Judgment reversed.

McMurray, P. J., and Pope, J., concur.

Decided October 26, 1988.

Donald D. Rentz, for appellant.

Jesse W. Walters, for appellee.


author: Deen, Presiding Judge.

text:
    77159.
    RYDER TRUCK RENTAL, INC. et al. v. CARTER et al.
    (374 SE2d 830)
   Deen, Presiding Judge.

The case sub judice arose out of a fatal night-time collision between appellees’ decedent and a trailer manufactured by appellant Great Dane Trailers, Inc. (Great Dane), and leased to another corporation, not a party to this appeal, by appellant Ryder Truck Rental, Inc. (Ryder). At the time of the accident the cab to which the trailer was attached occupied the southbound lane of the highway where the fatal collision occurred; the trailer, in a position perpendicular to the cab, was being backed across the highway’s northbound lane into a driveway. The decedent, driving in the northbound lane, apparently did not see the trailer in time and struck it, severing the top of his automobile and killing decedent and his passenger.

Appellees brought an action against several defendants, including appellants here. Ryder and Great Dane moved for summary judgment on certain allegations of the complaint. The trial court granted Ryder’s motion with respect to allegations that Ryder was negligent in not ascertaining that its lessee had certain licenses and insurance, but denied Ryder’s motion with regard to allegations of negligence in allegedly inadequately equipping the trailer with side lights and reflective devices and failing to give public notice of such alleged defects or deficiencies. The trial court also denied summary judgment to Great Dane on the issues of careless and negligent design of the trailer by allegedly failing to equip it with adequate lighting and reflective devices. Ryder and Great Dane received certificates of immediate review on these issues, and we granted an interlocutory appeal. Held:

OCGA § 9-11-56 (c) prescribes, in pertinent part: “[Summary] judgment . . . shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of Taw . . . .” Summary judgment should be granted only where there is no genuine issue of material fact, and the moving party is entitled to judgment as a matter of law. Malcolm v. Malcolm, 112 Ga. App. 151 (144 SE2d 118) (1965). The party opposing the motion must be given the benefit of all reasonable doubts and all favorable inferences that may be drawn from the evidence. Georgia Intl. Life Ins. Co. v. Huckabee, 175 Ga. App. 343 (333 SE2d 618) (1985). When the defendant is the movant, he has the burden of negating conclusively at least one of the essential elements of the plaintiff’s case. Tolbert v. Tanner, 180 Ga. App. 441 (349 SE2d 463) (1986).

Decided October 26, 1988.

J. Robert Persons, David A. Herrigel, Arnold C. Young, for appellants.

James B. Blackburn, Jr., for appellees.

Moreover, as a general proposition issues of negligence, diligence, contributory negligence, and proximate cause are not appropriate for summary adjudication but should be resolved by a jury. North v. Toco Hills, 160 Ga. App. 116 (286 SE2d 346) (1981). In a negligence case it must be demonstrated plainly and palpably that the defendants in no way contributed to the proximate cause in order for the trial court to sustain a motion for summary judgment by the defendants. Chastain v. Atlanta Gas Light Co., 122 Ga. App. 90 (176 SE2d 487) (1970).

We do not find the case sub judice such a “plain and palpable” case. We do not find that appellants have conclusively negated any essential element of appellees’ allegations. Negligence is the basic issue here and is therefore highly material to the case. We find particularly troubling, moreover, the fact that appellants rely so heavily on the logically shaky proposition that, since the lighting and reflective devices on the van (as attested by the affidavit of a qualified expert) were in compliance with a certain standard promulgated by the National Highway Transportation Safety Administration, then, ergo, neither the trailer nor its lighting and reflective devices could possibly have been a proximate cause of the fatal occurrence. Where so many relevant facts are available and can and should be sifted by reasonable jurors, we decline to foreclose the exploration of this central issue by adopting the non sequitur propounded by appellants.

Judgment affirmed.

Carley and Sognier, JJ., concur in the judgment only.


text:
    76510.
    CENTRAL OF GEORGIA RAILROAD v. LIGHTSEY.
    (374 SE2d 787)
   Beasley, Judge.

Central of Georgia Railroad appeals from a judgment entered on a jury verdict awarding Lightsey $196,206.86 on his FELA claim. (Federal Employers’ Liability Act, 45 USCA § 51 et seq.) It enumerates a number of errors, including denial of its pretrial motion to recuse the trial judge and its posttrial motion for new trial.

1. Lightsey, foreman of a track crew, was injured when a pushcart which he was riding on the rails collided with a pickup truck at a crossing. He filed a complaint in 1983 against the railroad.

In January 1985, after having filed several motions concerning which, except for one perfunctory one, Central asked that ruling be delayed until pretrial conference, Central filed a motion to recuse the judge to whom the case had been assigned. The motion contended that the judge was personally biased in favor of plaintiff’s attorneys and against Central, and that the local rules had been circumvented by assigning to this judge all FELA cases in which plaintiff’s attorneys represented the claimants. Plaintiff responded that the motion was untimely and legally insufficient, and the court so ruled.

We have thoroughly reviewed the record and the authorities and conclude that the trial judge erred in not referring to another judge the matter of his possible disqualification under Canon 3 C (1) (a) of the Code of Judicial Conduct. Consequently, as did the Supreme Court in State v. Fleming, 245 Ga. 700, 703 (1) (267 SE2d 207) (1980), we remand this case to the Superior Court of Chatham County for disposition of the motion. It shall be conducted pursuant to the procedure provided in USCR 25.3.

In the event the motion is denied, the judgment entered on the - jury verdict may be reentered and a new appeal taken. In the event the motion is granted, an interlocutory appeal may be sought under OCGA § 5-6-34 (b).

2. The other enumerations of error have been rendered moot at this time, and consequently we decline to rule on them. Fleming, supra at 704 (3).

Judgment reversed and case remanded with direction.

Birdsong, C. J., and Banke, P. J., concur.

On Motion for Rehearing.

Appellee contends that the issue upon which our opinion is based is controlled by Hunnicutt v. Hunnicutt, 248 Ga. 516 (1) (283 SE2d 891) (1981), which would require an opposite result. To the contrary. Hunnicutt had been considered and analyzed previously. The facts there differ to the extent at least that the motion was filed on the morning of the hearing and was the first time the party gave notice to the court of his claim of disqualification.

In the instant case the appellant avers that it took its complaint to the judge shortly after it completed its factual research to support its position as to the assignment of cases. After discussion the judge indicated that the matter would be taken up at the next judges’ meeting. Apparently counsel were not notified of any action being taken thereafter with respect to the cases already assigned, in that they remained as originally assigned. Consequently they filed a formal motion in January 1985 and asked for an evidentiary hearing. The trial did not commence until November 1986, so it was not imminent when the motion was filed.

Decided October 14, 1988 —

Rehearing denied October 27, 1988.

Burt DeRieux, Eileen M. Crowley, Cathleen M. Devlin, William F. Hinesley III, for appellant.

Billy E. Moore, John W. Jones, Paul Bennett, for appellee.

Although ex parte communications with the judge assigned to a case are generally forbidden, that factor does not affect the question of timeliness.

Considering the nature and magnitude of the defendant’s allegations, the context thereof, and the actions defendant took, it was error to conclude that the motion was untimely, as we have said before.


author: Birdsong, Chief Judge.

text:
    76863.
    FIREMAN’S FUND INSURANCE COMPANY OF GEORGIA v. MILEY et al.
    (375 SE2d 49)
   Birdsong, Chief Judge.

In a previous appearance of this subject matter before us, Miley v. Fireman’s Fund Ins. Co., 176 Ga. App. 527 (336 SE2d 583), we affirmed the trial court’s declaration that Fireman’s Fund was not liable to defend a negligence action by the parents of deceased Dondi Scott Miley. The clearly explained reason for the ruling was that there was a specific exclusion endorsement excluding coverage of the insured Nashville Grocery Company, of any claim involving a certain truck driver, Leonard C. Stone, whose driving competency record had been examined by Fireman’s Fund and found wanting. This exclusionary endorsement was clearly known to and executed by the president of Nashville Grocery Company; yet, Leonard C. Stone continued to drive a company truck with the eventuality that Dondi Scott Miley was killed. The reasons the insurance exclusion was held valid are eminently clear, logically correct, and equitable.

Following that decision and judgment, Mr. Miley’s parents qualified as executors of his estate, and in that new capacity again brought a personal injury suit, and sought to hold Fireman’s Fund to the insurance contract coverage. Fireman’s Fund filed a motion for summary judgment on substantive grounds, as well as conclusivity of the previous judgment. The trial court denied summary judgment to Fireman’s Fund and granted the plaintiff’s motion for summary judgment on grounds the previous declaratory proceedings were not res judicata either to Nashville Grocery, which was not a party to the earlier lawsuit, or to the co-administrators of the deceased’s estate, who happened to be, as his parents, foreclosed in the previous suit.

Decided September 13, 1988 —

Rehearing denied October 27, 1988

Thomas C. James III, for appellant.

Mitchell O. Moore, Craig A. Webster, M. Stan Ballew, for appellees.

Fireman’s Fund appeals. Held:

We have examined the substantive merits of Fireman’s Fund’s motion for summary judgment, and find the equities and the rectitude thereof to be as plain and unchanging today as they were in October 1985, when the question of insurance coverage in this case appeared before us the first time. The exclusionary endorsement excluding coverage of an accident involving Leonard C. Stone, was then, and is now, valid. This fact is born of the insurance contract between Fireman’s Fund and Nashville Grocery, and it does not change by the substitution of new plaintiffs. In so finding, it is not necessary for us to conclude these present plaintiffs (co-administrators) are estopped by that earlier judgment. If the policy exclusion is valid, which clearly it is and we have so held, it matters not who seeks to avoid it.

Judgment reversed.

Banke, P. J., and Beasley J., concur.

On Motion for Rehearing.

1. A motion for rehearing was filed by the winner.

2. The appellees’ motion for rehearing is without merit. Insurance coverage was very clearly excluded when they sued as parents, at 176 Ga. App. 527. The matter has been litigated. We cannot now hold the exclusion is invalid and open the matter up for the executors to sue — all their arguments notwithstanding. As we said, if the exclusion is valid, there is no coverage.

Motion for rehearing denied.


text:
    75390.
    ROBERTS v. J.A.T.T. TITLE HOLDING CORPORATION.
    Decided October 27, 1988.

      Marva Jones Brooks, Jeff F. Klein, for appellant.

      Charles E. Elrod, Jr., Randall A. Constantine, for appellee.
   Birdsong, Chief Judge.

The Supreme Court, in J.A.T.T. Title Holding Corp. v. Roberts, 258 Ga. 519 (371 SE2d 861), having reversed the decision of this court in Roberts v. J.A.T.T. Title Holding Corp., 185 Ga. App. 892 (366 SE2d 297), the prior judgment of this court is vacated and the judgment of the Supreme Court is made the judgment of this court. The judgment of the trial court is affirmed.

Judgment affirmed.

Deen, P. J., and Pope, J., concur.


text:
    76932.
    POOL MARKETS SOUTH, INC. v. MOORE.
    (374 SE2d 831)
   Beasley, Judge.

Plaintiff Pool Markets South, Inc., sought recovery of damages for breach of a contract to construct a swimming pool for defendant Moore. After a jury trial resulting in a verdict for Moore, Pool Markets appeals from the judgment entered on the verdict. On appeal Pool Markets contends that the trial court erred: 1) in charging the jury on the definition of consideration; 2) in failing to charge the jury on the parol evidence rule; 3) in charging the jury on the measure of damages and failing to give instructions on prejudgment interest and attorney fees.

1. The written requests to charge by Pool Markets were not timely under USCR 10.3 and it made no objections to the portions of the charge which it now enumerates as error on grounds 1 and 2. Where a party does not comply with OCGA § 5-5-24 (a) by objecting before verdict, error claimed on appeal will not be reviewed unless it is deemed to be substantial and harmful as a matter of law as provided by subsection (c). Bailey v. Todd, 126 Ga. App. 731, 733 (2) (191 SE2d 547) (1972). The exception under subsection (c) applies only when there has been a substantial error which was blatantly apparent and prejudicial and which resulted in a gross miscarriage of justice. Hunter v. Batton, 160 Ga. App. 849 (1) (288 SE2d 244) (1982). The errors here asserted do not rise to that level.

2. The third enumeration of error is without merit for the reason that where there is a verdict for defendant any error in the instructions as to damages is harmless. Greenway v. Griffith, 225 Ga. 632 (2) (170 SE2d 423) (1969); Jackson v. Miles, 126 Ga. App. 320, 322 (3) (190 SE2d 565) (1972).

Decided October 27, 1988.

Joseph Pelt III, David L. Miller, for appellant.

Joe W. Cook, for appellee.

Judgment affirmed.

Birdsong, C. J., and Banke, P. J., concur.


text:
    77266.
    HARRIS v. THE STATE.
    (374 SE2d 565)
   Deen, Presiding Judge.

Appellant Harris was convicted of child molestation and sentenced to ten years’ confinement and ten years’ probation. After denial of his motion for new trial, he appealed to this court, enumerating as error the general grounds; the trial court’s instructing the jury that in a child molestation case the uncorroborated testimony of the victim is alone sufficient to sustain a conviction; and the trial court’s granting of the State’s motion in limine that the defense not be permitted to introduce evidence that the child had access to, and sometimes watched, the Playboy Channel on television. Held:

1. We find the enumeration of the general grounds to be without merit. Examination of the trial transcript, together with the remainder of the record, reveals more than sufficient evidence to authorize the rational trier of fact to find appellant guilty as charged beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). We note in particular that the court below expressly ruled the six-year-old victim competent to testify, and that her detailed but uncorroborated testimony was sufficient alone to sustain the conviction. OCGA § 16-6-4; Padgett v. State, 175 Ga. App. 818 (334 SE2d 883) (1985). It is the prerogative of the court to determine the competency of a witness. OCGA § 24-9-7; Smallwood v. State, 165 Ga. App. 473 (301 SE2d 670) (1983). We find no error of law or insufficiency of evidence in the proceedings below.

2. In view of our holding in Division 1, supra, we find the challenged jury instruction to be a correct statement of relevant law. Padgett v. State, supra. This enumeration, too, is without merit.

3. The State’s motion in limine was properly granted, and the proffered evidence properly excluded, because it was legally irrelevant. “The past sexual experience of a child in a case such as this is irrelevant to the issue of whether molestation was committed by the defendant on trial. [Cit.]” Chastain v. State, 180 Ga. App. 312 (349 SE2d 6) (1986). “In a child molestation case evidence as to the victim’s reputation for nonchastity is not admissible. [Cit.] Nor may evidence be admitted to discredit the victim by showing her preoccupation with sex. [Cits.]” Vargas v. State, 184 Ga. App. 650 (362 SE2d 461) (1987); accord Woods v. State, 187 Ga. App. 105 (369 SE2d 353) (1988).

Decided October 27, 1988.

Wallace C. Clayton, for appellant.

Thomas J. Charron, District Attorney, Fonda Clay, Debra Bernes, Nancy Jordan, Assistant District Attorneys, for appellee.

Furthermore, even if arguendo the exclusion of the evidence were error, it was harmless because it was cumulative of other evidence admitted at trial. As the transcript clearly reveals, competent evidence was adduced showing that the Playboy Channel was available in the victim’s home and that there existed a distinct possibility that the child might have watched (and presumably received sexual information or stimulation from) that channel when no adults were aware of what she was doing. In light of this evidence appellant could not have been harmed by the court’s exclusion of what would have been redundant evidence. In order to warrant reversal of the judgment, an error must be harmful. Dill v. State, 222 Ga. 793 (152 SE2d 741) (1966). Moreover, in view of the other evidence brought out at trial, we find it highly probable that the alleged error did not contribute to the conviction. Johnson v. State, 238 Ga. 59, 61 (230 SE2d 869) (1976). This enumeration is devoid of merit.

Judgment affirmed.

Sognier, J., concurs. Carley, J., concurs in the judgment only.


author: Pope, Judge.

text:
    76568.
    CITY OF ATLANTA v. CLAYTON COUNTY BOARD OF TAX ASSESSORS.
    (375 SE2d 75)
   Pope, Judge.

The City of Atlanta appeals from a judgment of the trial court holding that a parcel of land it previously owned in Clayton County was not, at the time the city owned it, exempt from ad valorem taxation pursuant to OCGA § 48-5-41 (a) (1) (B) (i) or (ii). We agree that the land was not tax exempt and affirm the trial court’s decision.

The operative facts in this case were stipulated by the parties. The land in question was previously a residential neighborhood. When it was purchased by the city, the dwellings were removed or destroyed and the land is now vacant. The land is located wholly outside the territorial limits of the city and wholly within Clayton County. It is less than 300 acres in area. The city also owns another parcel of land within Clayton County in excess of 300 acres on which the city operates Hartsfield International Airport. At least twenty-five percent of the separate parcel on which the airport is located is developed by grading or other improvements. Facilities are located on the airport land which are actively used for public purposes. However, the land in question is separated from the airport land by Interstate Highway 75. The city admits this is a discrete tract of land which bears no functional relationship to the airport. A portion of the land in question was sold by the city to a private developer in 1986 and is now subject to ad valorem taxation. The trial court ruled that the land was also subject to taxation during the period it was owned by the city because it was not exempt from taxation pursuant to OCGA § 48-5-41 (a).

Generally, public property is exempt from ad valorem taxation. OCGA § 48-5-41 (a) (1) (A). However, an exception exists for property owned by one political subdivision located outside its own territorial limits. OCGA § 48-5-41 (a) (1) (B). Even land owned by one political subdivision within the territorial limits of another is exempt under certain circumstances. OCGA § 48-5-41 (a) (1) (B) provides, in pertinent part, that “[n]o public real property which is owned by a political subdivision of this state and which is situated outside the territorial limits of the political subdivision shall be exempt from ad valorem taxation unless the property is: (i) Developed by grading or other improvements to the extent of at least 25 percent of the total land area and facilities are located on the property which are actively used for a public or governmental purpose; [or] (ii) Three hundred acres or less in area . . . .’’In the case at hand, the particular tract of land in question is less than 300 acres in area. However, the city owns a total of far more than 300 acres of land in Clayton County. The threshold issue in this case is whether the tax exemption provided by OCGA § 48-5-41 (a) (1) (B) (ii) refers to total acreage owned by one political subdivision inside another or whether it refers to the size of the individual tract of land under consideration, regardless of total acreage held by the owner.

In City of Atlanta u. Spence, 242 Ga. 194 (249 SE2d 554) (1978), the Georgia Supreme Court upheld the constitutionality of the statute subjecting public land greater than 300 acres to taxation while exempting land of 300 acres or less. The court found that the quantity of land held by another political subdivision was a reasonable basis on which to distinguish between taxable and tax exempt land, “since the finances of the county could be adversely affected by large quantities of tax exempt land within its boundaries.” Id. at 197. The concern for the adverse impact upon public finances is equally applicable whether the property to be removed from the tax digest is held in one tract or many. We interpret OCGA § 48-5-41 to require the total quantity of land owned within the territory to be aggregated for purposes of determining whether it amounts to 300 acres or less. It is the total amount of land owned by one political subdivision in the territory of another that determines the tax exempt status of the land. Cf. City of Atlanta v. Spence, supra at (5) (in which the Georgia Supreme Court ruled the statute in question does not exempt 300 acres of a tract totaling more than 300 acres). To hold otherwise would permit one political subdivision to remove substantially all the property tax revenue from another political subdivision so long as it purchased property in separate tracts of 300 acres or less.

Decided October 12, 1988 —

Rehearing denied October 28, 1988

Marva Jones Brooks, Joe M. Harris, Jeff S. Klein, Michael L. Smith, for appellant.

Since the City is not entitled to a tax exemption for owning 300 acres or less of land, the only exemption provided by OCGA § 48-5-41 that might apply to the property is that contained in subsection (a) (1) (B) (i), which exempts “developed” property on which “facilities are located . . . which are actively used for public or governmental purpose . . . .” Tax exemptions are strictly construed in favor of the taxing authority. E.g., Annandale at Suwanee v. Gwinnett County Bd. of Tax Assessors, 242 Ga. 241 (248 SE2d 640) (1978); Leggett v. Macon Baptist Assoc., 232 Ga. 27 (205 SE2d 197) (1974). For this reason, for purposes of applying the exemption provided by subsection (a) (1) (B) (ii), we considered the parcel in question in combination with all other property owned in the territory of the taxing authority. See above. However, for purposes of applying the exemption provided by subsection (a) (1) (B) (i), the parcel in question is considered separately from the whole. See Clayton County Bd. of Tax Assessors v. City of Atlanta, 164 Ga. App. 864 (298 SE2d 544) (1982).

In Clayton County Bd. of Tax Assessors, a small portion of the larger airport complex was held not to be tax exempt because the parcel was leased to a private entity and the lease was found not to be for a public purpose. Id. at (3). In the case at hand, the parties have stipulated that the land in question is vacant. Even if it was being held for a public purpose, the land was not developed and contained no facilities actively used for a public purpose, as required by subsection (a) (1) (B) (i). Therefore, the land in question was not exempt from taxation.

Judgment affirmed.

McMurray, P. J., and Benham, J., concur.

Donald M. Comer, for appellee.


text:
    77249.
    MATHIS v. THE STATE.
    (375 SE2d 77)
    Decided October 12, 1988 —
    Rehearing denied October 28, 1988.
   Deen, Presiding Judge.

The appellant, Johnny Mathis, was convicted of selling cocaine in violation of the Georgia Controlled Substances Act. On appeal, he attacks the admission into evidence of a police officer’s identification testimony, and a portion of the jury charge.

Twice on the evening of January 16, 1987, Mathis sold crack cocaine to an undercover police officer. This officer reported back to the Albany Police Department, where he described Mathis and related that Mathis had identified himself as “Johnny Cool.” Mathis was not arrested at the time, because the undercover officer was “on loan” from another county for an ongoing operation which would have been jeopardized by any immediate arrests. In order to ascertain definitely the identity of the seller, the undercover officer viewed some photographs on file at the police station, from which he identified Mathis. Other police officers were then sent to locate Mathis, who was distinctively dressed in a yellow raincoat, blue and white cap, and white painter’s pants, and under some ruse to stop and identify him. Approximately two weeks later, Mathis was arrested. Held:

1. Evidence of a pre-trial identification is inadmissible if the pretrial identification procedure was impermissibly suggestive and resulted in a substantial likelihood of irreparable misidentification. Pack v. State, 182 Ga. App. 618 (356 SE2d 557) (1987). Even if such considerations apply where one police officer views photos on file at the police station in order to attach a real name to a person under investigation known by a nick-name, it is clear that no irreparable misidentification resulted here. At the trial, the undercover officer had no doubt, from his personal purchase of cocaine from Mathis, in identifying Mathis.

2. In instructing the jury on the form of the verdict, the trial court explained the possible guilty verdicts on the two counts and the possible verdicts of acquittal. There was no abnormality in this typical charge, and, contrary to Mathis’s contention, no intimation by the trial court of his opinion as to Mathis’ guilt.

Judgment affirmed.

Carley and Sognier, JJ., concur.

Stephen S. Goss, for appellant.

Hobart M. Hind, District Attorney, John L. Tracy, Assistant District Attorney, for appellee.


author: Sognier, Judge.

text:
    77236.
    OLIVER v. HOUSING AUTHORITY OF AUGUSTA.
    (374 SE2d 832)
   Sognier, Judge.

The Housing Authority of the City of Augusta (The Authority) brought dispossessory proceedings against Robert L. Oliver, a tenant in a public housing development owned and operated by the Authority. The trial court granted summary judgment in favor of the Authority on the issue of possession, and Oliver appeals.

The record reveals that the “Admission Policies [and] Continued Occupancy Policies and Procedures” of appellee, promulgated pursuant to applicable United States Department of Housing and Urban Development (HUD) regulations, provide that housing is “restricted to [ffamilies meeting the eligibility requirements” for occupancy (emphasis supplied). “Family” is defined as a group of two or more related people, a single elderly person (at least 62 years old), or a single person who: (a) is under a disability as defined in Section 223 of the Social Security Act or Section 102 (b) 5 of the Developmental Disabilities Services and Facilities Construction Amendments of 1970, or (b) meets a specific definition of “handicapped” or “displaced.”

Appellant, a single person, became a resident of public housing in Augusta in 1981. His application for admission represented that he was “without housing; Disabled” and that he was “supposed to start receiving a V.A. [disability] check.” A space on the application blank for appellee to indicate priority in allocating housing was marked “Dis.,” indicating that appellant was admitted to public housing on the basis that he was disabled. It is uncontroverted that appellant is not receiving Social Security or V.A. disability benefits, and appellant makes no claim that he is eligible because he is disabled. During a routine audit in 1986, HUD questioned the continued eligibility of certain of appellee’s tenants, including appellant. Because appellee agreed that appellant was not eligible, it proceeded to terminate his tenancy.

1. Appellant contends the trial court erred by granting summary judgment in favor of appellee because genuine issues of material fact exist as to whether appellant remains eligible for public housing. Appellant argues that his application for admission to public housing in 1981 indicates two bases for eligibility, rather than one, and that since his eligibility was also based on his status as a “displaced person,” he continues to be eligible. We do not agree.

Appellant argues that he was “displaced” because he was evicted from a hotel located at 2110 Walton Way on August 10, 1981, when it was “condemned.” However, this conflicts with appellant’s application for public housing, dated July 12, 1981, in which he listed his address as 1336 Conklin Avenue. The statement in appellant’s affidavit that he moved to the Conklin Avenue address for a period of two weeks after he was evicted from the Walton Way hotel on August 10, 1981, cannot be considered to be a “reasonable explanation” for the contradiction under Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27, 30 (2) (343 SE2d 680) (1986), because it fails to explain why the Conklin Avenue address was given by appellant approximately one month before his alleged eviction from the Walton Way hotel, when he was presumably still living there. Thus, under Prophecy Corp., appellant’s statement that he was evicted from the Walton Way hotel must be eliminated from consideration on summary judgment, id. at 28 (1), leaving only his statement that he was residing at 1336 Conklin Avenue when he applied for housing. It is thus not necessary that we decide whether appellant’s alleged eviction from the Walton Way hotel would have qualified him under appellee’s rules and regulations as a “displaced person.” Construing appellant’s remaining statement favorably to him as the respondent on motion for summary judgment, id., appellant could not have been admitted to public housing on the basis that he was a “displaced person” because he was living at the Conklin Avenue address and thus did not fall within the statutory definition of “displaced.” Accordingly, the trial court did not err by granting summary judgment in favor of appellee. See generally Lynch v. Ga. Power Co., 185 Ga. App. 256, 258-259 (2) (363 SE2d 777) (1987).

2. The record establishes that appellant was afforded access to the grievance procedure prior to appellee’s filing its affidavit for a dispossessory warrant, and that after notice, both appellant and his counsel failed to appear for the hearing. Consequently, we find no merit in appellant’s contention that he was denied an opportunity to address these matters in a formal grievance procedure as set forth in appellee’s rules and regulations.

3. Appellant finally asserts that appellee’s actions in evicting him were in direct retaliation for appellant’s vocal opposition to certain policies of appellee. However, in support of its motion for summary judgment, appellee submitted the affidavit of J. Madden Reid, appellee’s Executive Director, who stated upon personal knowledge that the termination of appellant’s tenancy was not in retaliation against him for any activity in which appellant may have been engaged, but was based on appellee’s determination that he was not eligible to occupy one of appellee’s apartments. Nothing in appellant’s affidavit submitted in opposition to the motion for summary judgment rebuts this evidence. Accordingly, the trial court did not err by finding that appellant’s allegations in this regard were unfounded. See generally Michelin Tire Corp. v. Irving, 185 Ga. App. 783, 784-785 (1) (366 SE2d 156) (1988).

Decided October 28, 1988.

E. Ronald Garnett, for appellant.

David E. Hudson, for appellee.

Judgment affirmed.

Deen, P. J., and Carley, J., concur.


author: Banke, Presiding Judge.

text:
    76623.
    STOVER et al v. ATCHLEY.
    (374 SE2d 775)
   Banke, Presiding Judge.

The appellee sued the appellants (his grandson and the grandson’s wife) to recover damages for conversion and battery. Evidence was presented at trial from which it could be inferred that the appellants had converted the appellee’s funds to their own personal use after being entrusted with his financial affairs and, in addition, that the appellant grandson had violently attacked the appellee on one occasion. The jury awarded the appellee $32,700 as compensatory damages and $50,000 as punitive damages for the conversion, as well as $25,000 as compensatory damages and $50,000 as punitive damages for the battery. The appellants bring this appeal from the denial of their motion for new trial. Held:

1. The, appellants contend that the appellee was not entitled to recover punitive damages on his conversion claim. We disagree. As a general rule, “[w]here a plaintiff pleads and proves actual pecuniary loss for which he or she seeks compensatory damages, and the tort complained of is of such an aggravated nature to warrant a charge on punitive damages [cit.], it is permissible for the jury to award both compensatory damages for the injury done and additional or punitive damages. . . .” Woodbury v. Whitmire, 246 Ga. 349, 351 (271 SE2d 491) (1980). Pursuant to this standard, the jury was authorized to award punitive damages for the conversion.

2. The appellant grandson asserts that the awards of $25,000 as compensatory damages and $50,000 as punitive damages for the battery were both excessive and duplicative. The testimony concerning the physical altercation revealed that the grandson had choked the appellee, spit upon him, and thrown him against a wall while exclaiming, “die old man, damn it, die.” There was evidence that the appellee had suffered cuts and bruises on his neck as a result of the attack; however, there was no evidence that he had sustained any hospital or medical expenses or suffered any other type of pecuniary loss as a consequence of the attack.

Decided October 6, 1988 —

Rehearing denied October 31, 1988

Generally, “any unlawful touching is a physical injury to the person and is actionable.” Newsome v. Cooper-Wiss, Inc., 179 Ga. App. 670, 672 (347 SE2d 619) (1986). Moreover, “[t]he law infers bodily pain and suffering from personal injury,” Cochran v. Lynch, 126 Ga. App. 866, 868 (192 SE2d 165) (1972), and “ ‘general damages’. . . are said to include . . . the bodily suffering endured.” County of Bibb v. Ham, 110 Ga. 340, 341 (35 SE 656) (1899).

The trial court charged the jury on general, special, nominal, and punitive damages and further charged on pain and suffering as an element of general damages. The only guideline for awarding damages for pain and suffering is the enlightened conscience of an impartial jury. See Wayco Enterprises v. Crews, 155 Ga. App. 775 (272 SE2d 745) (1980); OCGA § 51-12-12. If the award is not so flagrant as to “shock the conscience,” it will not be disturbed on appeal. See Central of Ga. R. Co. v. Nash, 150 Ga. App. 68 (1) (256 SE2d 619) (1979). See also Kiker v. Davis, 103 Ga. App. 289 (1) (118 SE2d 861) (1961).

In the present case, the jury was authorized to find that the appellee had suffered physical injuries as the result of a violent, physical attack by the appellant. “Thus, ‘(i)n the absence of any showing of actual bias . . ., we cannot say that the verdict returned by the jury in this case, and approved by the trial judge, is so excessive as a matter of law as to justify the inference of . . . bias.’ [Cit.] Simpson v. Reed, 186 Ga. App. 297, 300 (367 SE2d 563) (1988). Accord Brown v. Svc. Coach Lines, 71 Ga. App. 437 (1) (31 SE2d 236) (1944).

3. The appellant’s contention that the award of punitive damages for the battery constituted an impermissible double recovery must also fail. OCGA § 51-12-5 authorizes an award of punitive damages in addition to compensatory damages where there exist “aggravating circumstances.” It has been held that such damages are recoverable only where the defendant’s “actions showed wilful misconduct ... or that entire want of care which would raise the presumption of conscious indifference to consequences.” OCGA § 51-12-5.1 (b). See Rossville Apts. Co. v. Britton, 178 Ga. App. 194 (1) (342 SE2d 504) (1986). See also Dempsey Bros. Dairies v. Blalock, 173 Ga. App. 7 (1) (325 SE2d 410) (1984). Obviously, the evidence introduced in this case with respect to the battery was sufficient to authorize the jury to conclude that the appellant was guilty of wilful misconduct. It follows that an award of punitive damages was authorized.

Judgment affirmed.

Birdsong, C. J., and Beasley, J., concur.

Dwight T. Feemster, for appellants.

Thomas R. Herndon, for appellee.