author: Birdsong, Presiding Judge.

text:
    A94A0185.
    In the Interest of D. S. et al., children.
    (441 SE2d 412)
   Birdsong, Presiding Judge.

To review the trial court’s order placing temporary custody of the above named children in the Department of Family & Children Services for 18 months, we granted this discretionary appeal.

The trial court’s order, as to the facts, states only: “The petition was presented on the basis that the natural mother is unable to provide the necessary parental care and control of the minor children at the present time. The caseworker for the [Department of Family & Children Services (DFCS)] testified . . . that the natural mother has been living with a man who when arrested had a large amount of marijuana and pills in their house. The caseworker further stated that the kitchen was very dirty with food rotting. She also stated that there were live and dead roach bugs in the refrigerator with little or no food. The caseworker also testified that there was evidence of rodents in the home. The caseworker further testified that there had been a drug raid on the home of the natural mother in 1992 and that a large amount of drugs were found in the home at that time which were accessible to the children.”

This evidence does not constitute clear and convincing evidence of deprivation under OCGA § 15-11-2 (8). The fact that the petition was presented on a certain basis is without probative value. The caseworker’s testimony that the mother has been living with a man “who when arrested had a large amount of marijuana and pills in their house,” and that there had been a drug raid on the mother’s home in 1992 and a large amount of drugs was found in the home accessible to the children, is obviously hearsay unless the caseworker was present during the arrest and the drug raid. There is, further, a question whether the caseworker’s statements concerning drug raids and marijuana are supported by the evidence. Appellant denies these facts are true. The caseworker testified that the mother volunteered for a drug test and tested “clean.” The person arrested for drug activity was apparently the children’s father, who had left the home and to whose house the children were allegedly placed by DFCS when they were removed from their mother’s home. The caseworker’s “quandary” had to do with “smoke” (rumors). He had no opinion whether the mother is an appropriate mother, but said: “I don’t have any reason to have [an opinion] one way or the other ... I don’t have any reason to believe that she’s not or that she is. My concern again [is] just my quandary is [sic] keeps popping up.”

The entire record may show evidence from which clear and convincing evidence of deprivation may be found, but the trial court did not find or rely on such evidence.

Only after making the finding of deprivation may the court consider hearsay. In the Interest of J. C., 242 Ga. 737 (251 SE2d 299), appeal dismissed 441 U. S. 929 (99 SC 2046, 60 LE2d 657). In a ruling on a deprivation petition, the trial court is required to find deprivation specifically (OCGA § 15-11-33) and explicit findings of fact must be made in accordance with OCGA § 9-11-52. In the Interest of A. A. G., 143 Ga. App. 648 (239 SE2d 697); W. R. G. v. State of Ga., 142 Ga. App. 81 (235 SE2d 43). OCGA § 9-11-52 (a) provides that the trial court “shall . . . find the facts specially and shall state separately its conclusions of law.” The facts found must support the conclusions reached. A bare statement of some facts considered does not show that those facts support the conclusions so as to comply with § 9-11-52 (a) (Moore v. Farmers Bank of Union Point, 182 Ga. App. 94 (354 SE2d 692)), and a dry recitation that certain legal requirements have been met is insufficient to satisfy OCGA § 9-11-52 (a). Beasley v. Jones, 149 Ga. App. 317 (254 SE2d 472). The findings of fact required to be recited in deprivation cases “ ‘more adequately enable an appellant to complain of and appeal from the judgment rendered. Such findings and conclusions also enable an appellate court to more adequately and promptly review the judgment.’ (Emphasis supplied.) Brown v. Brown, 237 Ga. 201, 202 (227 SE2d 360).” Sills v. Bruce, 179 Ga. App. 697, 698 (347 SE2d 685). An intelligent review of the merits of this appeal is precluded without explanatory findings of fact by the trial judge. Id. and cases cited. We have repeatedly said we will not cull the record to find error for an appellant; the same goes for review of an order which is required by law to contain specific findings of fact constituting clear and convincing evidence of deprivation sufficient to remove children from their home.

The judgment is vacated and the case remanded with direction to the trial court to enter findings of fact and conclusions of law and a new judgment, after which the losing party may seek discretionary review. See Sills, supra.

Judgment vacated and case remanded.

Cooper and Blackburn, JJ., concur.

On Motion for Reconsideration.

On motion for reconsideration, the Department of Human Resources “requests clarification from the court as to its intention as far as placement of the minor children pending a resolution by the juvenile court.” This court has no intention with regard to placement of the minor children pending a proper finding of fact and conclusion of law by the trial court. We decline to issue an advisory opinion as to the department’s present duties. The legal status of the children after we vacated the order and remanded the case is obvious: a petition seeking temporary custody is pending, a hearing has been held and evidence adduced, but no legal order has been entered.

The department again extensively argues a mass of evidence which it says is in the record, or evidence which it says is not in the record as alleged by appellant. Whether such evidence is in the record was not properly before us, for the trial court’s order was insufficient on its face to support the award and we cannot review the evidence until a proper order is entered. We will not cull the record to find evidence to support a custody order which relied on illegal evidence and was wholly insufficient to present any issue for appellate review for the reasons stated in the opinion. The department continues to insist that even though a significant part of the evidence relied on by the court below was hearsay, we must comb the record to find evidence to uphold the juvenile court’s action. This assertion suggests that the juvenile court need not give legally sufficient reasons for removing children from their parents and deprives appellant of the right to have the trial court base its ruling on competent evidence.

Motion for reconsideration denied.

Decided January 25, 1994

Reconsideration denied February 28, 1994.

Davis, Kirsch & Wolfe, Dock H. Davis, for appellant.

Michael J. Bowers, Attorney General, William C. Joy, Senior Assistant Attorney General, Teresa E. Lazzaroni, Staff Attorney, Price & Pyles, T. Christopher Pyles, for appellee.


source: Caselaw Access Project

license: Public Domain

text:
    A94A0236, A94A0237.
    WATSON et al. v. MARSHALL et al. (two cases).
    (441 SE2d 427)
   Birdsong, Presiding Judge.

The trial court denied summary judgment to defendant Department of Transportation (DOT) in James D. and Robin Ann Marshall’s suit for damages arising when another driver drove the wrong way on 1-85 in Troup County and collided with their vehicle. We granted this interlocutory appeal.

The collision occurred in heavy fog. Agnes Greathouse was on her way to work on 1-85 and missed her usual exit. She decided to go to the next exit, and cross over 1-85 and go back, but the next exit was Exit 5 which merges into 1-185 southbound. She testified in deposition that she had never been this route before and did not see any signs telling her that she was exiting onto another interstate. Before her usual exit (Exit 4), there was a sign showing that Exit 5 leads to I-185. There was not a sign at the bottom of the ramp indicating that it leads onto 1-185. She turned a “hard left,” saw nothing to indicate she was going the wrong way on an interstate, and traveled five or ten minutes before she hit the Marshalls’ car. The fog was so thick she did not see the Marshalls’ car until it was on the hood of her truck; she could hardly see any signs except a sign that said “Columbus.”

Appellees contend DOT was negligent in failing to put a sign at the end of the ramp indicating that the ramp fed onto 1-185, and in failing to paint “channelizing” stripes, chevrons or yellow markings on the pavement between the merging interstate highways. They contend that if there had been such markings Ms. Greathouse would not have turned left across the pavement and onto 1-185 southbound. Appellees also contend that the foreseeability of danger at this point was much greater than at an ordinary exit, and that to the unknowing or inexperienced eye this intersection looked exactly like an intersection of a two-lane access road permitting a left hand turn and access across the bridge, which is what Ms. Greathouse thought. DOT contends that Ms. Greathouse would have had to make a 180-degree turn to get off 1-85 onto 1-185 southbound, but appellees contend Ms. Greathouse made a “hard left” turn as if turning onto a two-lane road, and if she was in the far right area of the ramp, she could have turned onto 1-185 without making a 180-degree turn.

DOT produced evidence that between the point where Ms. Greathouse first entered 1-85 and the ramp onto 1-185 there are four signs showing this exit leads to 1-185. DOT also produced expert testimony that the signage was adequate. Appellees produced expert opinion evidence that the signage was inadequate, and that although Ms. Greathouse’s driving behavior was “far out,” it was foreseeable at this dangerous exit. Held:

1. Judging the evidence in favor of appellees, as respondents, and giving them the benefit of every doubt and indulging every reasonable inference in their favor on DOT’s motion for summary judgment (Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474)), the evidence shows that Ms. Greathouse turned left off an exit into oncoming traffic on another interstate in fog so dense that she could not see or did not see the four signs showing that this exit led to another interstate. She turned in fog so dense she could not see appellees’ vehicle until she hit it. Without seeing a sign advising that this road would lead her back to 1-85 if she turned left, Ms. Greathouse turned left. In her deposition, she testified that she did not see any plastic bumps or reflectors on the pavement because she “really didn’t pay it much attention. ... I just know it was two lanes going that way, you know, and I just took on the right lane and went back.”

Whether she turned “hard left” or 90 degrees left or 180 degrees left is beside the point, for she turned where there were no signs indicating that she could do so safely, and without knowing where she was going or what she was doing. It cannot be speculated that a “wrong way” sign would have helped her, for neither was there a sign saying she was going the right way, yet she took that road nevertheless. She did not see four signs indicating that Exit 5 leads onto 1-185, so a jury cannot speculate that she would have seen any sign DOT could have posted. She concedes she “didn’t pay it much attention.” Nor can it be speculated that she would have seen painted chevrons or yellow markings in such dense fog or that such markings would have deterred her if she had seen them, for at the end of the ramp she tried to figure out where she was and although she saw no sign to tell her what this road was, she turned left on it. She proceeded onto a road heedless where it might lead, “figuring” that it would lead her back onto 1-85. A cardinal rule known by all reasonable drivers is that one turns onto a road leading on or off an interstate highway with caution, and only when one has reasonably ascertained that the road is not a wrong-way road. Ms. Greathouse could not reasonably ascertain where this road led for, by her own admission, she saw no signs. Her own negligence caused her to turn left into oncoming traffic where there was no sign indicating that this was safe conduct.

Decided February 3, 1994

Reconsideration denied February 28, 1994

Michael J. Bowers, Attorney General, George P. Shingler, Senior Assistant Attorney General, Eric A. Brewton, Assistant Attorney General, for appellants.

Adams & Ellis, George L. Lewis, Duffy & Feemster, Dwight T. Feemster, Jobeth Gosdeck, H. J. Thomas, Jr., for appellees.

2. Even assuming DOT was negligent in failing to post some additional marker indicating that a driver should not turn left off this ramp, and assuming that in the dense fog Ms. Greathouse could have seen such a sign, the evidence does not permit a reasonable inference that Ms. Greathouse would have heeded it. Assuming DOT did something negligent, we have said before that where a person is engaged in potentially dangerous conduct and does not know what he is doing but forges ahead to do it anyway, it cannot be reasonable, proper or warranted to do it. See McNeely v. Harrison, 138 Ga. App. 310, 313 (226 SE2d 112). This is more so true when one is doing a thing in unusually hazardous conditions. This collision was not caused by DOT’s failure to put up adequate signs; it was caused by Ms. Great-house’s turning onto an expressway without following any sign. Her conduct was unreasonable as a matter of law, and was not a hazard which the DOT should reasonably have foreseen. It must be concluded beyond any genuine issue of material fact that DOT’s negligence, if any, was not the cause of Ms. Greathouse’s turning left off this exit road. While the issue of proximate cause is generally a question of fact for the jury, it may be decided as a matter of law where the evidence is clear and leads to only one reasonable conclusion — that defendants’ acts were not the proximate cause of the plaintiffs’ injury. Id. at 312.

3. Further, we have examined the diagrams and photographs in evidence, and we think reasonable minds cannot differ that whatever the degree of left turn Ms. Greathouse had to make to turn into the oncoming traffic on 1-185 southbound, it is too sharp a turn backwards for any reasonable person to make on an interstate, especially in the fog and without signs. This could not have been a turn which DOT could reasonably have foreseen. Id. at 313.

The trial court erred in failing to grant summary judgment to DOT in the facts of this case.

Judgments reversed.

Cooper and Blackburn, JJ., concur.


author: Beasley, Presiding Judge.

text:
    A93A1727.
    A93A2361.
    DYCHES v. McCORKLE et al. DYCHES v. YOUNG et al.
    (441 SE2d 518)
   Beasley, Presiding Judge.

The question in these appeals is whether Dyches has a triable claim for damages against the Chatham County Metropolitan Planning Commission (MPC) and Board of Commissioners, as a result of the disapproval of his preliminary plan for a subdivision on the ground that his drainage plan did not comply with the Subdivision Regulations of Chatham County.

On February 12, 1992, Dyches submitted his application to the MPC requesting approval of a preliminary plan for Phase I of Chriswoodelle Subdivision on the Isle of Hope in Chatham County.

The Isle of Hope is described as an area of great charm, with high land values. Poor drainage, particularly during heavy rainfall on a high tide, is a recurrent annoyance. Fears that a new subdivision might disrupt the quiet environment and worsen drainage problems generated considerable public opposition to Dyches’ proposal. Initial concerns over other matters such as traffic were allayed, and the focus of the public controversy became drainage. The Dyches property is located on a section of Isle of Hope called Parkersburg, which is drained by a county drainage ditch or canal that flows through a tide-gate ultimately into the Skidaway River. Rain water flows toward the lowest point in the drainage area, which is a patch of wetlands, a small portion of which lies within the proposed subdivision. Dyches was granted permission by the U. S. Army Corps of Engineers to place fill dirt in his portion of the wetlands. Neighbors were concerned that construction of the subdivision would heighten existing drainage problems, by decreasing the storage area for rain run-off by filling wetlands and by increasing the speed of run-off onto adjacent properties.

The Subdivision Regulations require the subdivision permit to be denied if the projected increased run-off from the subdivision would overload the capacity of the channel downstream or increase flood stages upstream, unless improvements are made to provide storage capacity for the additional run-off to prevent such adverse effects, and unless equivalent flow and storage capacity is replaced and maintained within a flood plain easement. Sub. Reg. § 702.01.3b. In addition, all subdivisions shall be provided with drainage structures sufficient to accommodate a 50-year storm flood. Sub. Reg. § 601.02.

The MPC, charged with responsibility for administering the Subdivision Regulations, has the duty to inspect and approve or disapprove preliminary plans for subdivisions and to recommend approval or disapproval of final plats. Sub. Reg. § 700. If the MPC finds that the proposed design of the subdivision shown on the preliminary plan complies with the design requirements of the subdivision regulations, it shall approve the preliminary plan; if the MPC disapproves a preliminary plan, it shall give the developer the reasons for such disapproval in writing. Sub. Reg. § 702.04. When a developer receives approval of the preliminary plan, he may proceed with such things as opening streets and laying out lots. Sub. Reg. §§ 702; 702.04. With approval of the final plat, the developer can sell lots or construct houses.

Grading and drainage plans are to be approved by the city or county engineers and by the MPC to insure conformity with all applicable requirements of the ordinance and other city/county code provisions. Sub. Reg. § 700. However, the MPC staff has no technical expertise in drainage matters; and, prior to submission of Dyches’ application, it had been the unvarying custom of the MPC not to require developers to submit a grading and drainage plan prior to approval of a preliminary plan, but rather to approve the preliminary plan subject to later approval of drainage by the city or county engineer. The MPC was not informed that this practice was inconsistent with the Subdivision Regulations until this controversy arose. Beginning with Dyches’ application, the MPC process was changed so that a developer seeking approval of a preliminary plan must now submit a grading and drainage plan.

Consistent with the MPC’s customary process, the drainage information submitted by Dyches with his initial application was sufficient to warrant the MPC staff’s and county engineer’s recommendation of approval with conditions. No violations of Subdivision Regulations were found.

Following a hearing, the MPC on May 27, 1992, denied approval of the preliminary plan “due to the lack of specific information needed to determine the suitability of the site for a major subdivision.” In its decision, the MPC stated that it needed additional information concerning, among other things, storm water drainage. When the members of the MPC discussed their decision with the staff, the major concern of several members was the containment of increased run-off. Information was requested from Dyches concerning run-off during floods and the effect that the site fill would have on run-off. After the May 27 meeting, the MPC staff engaged in discussions with Dyches and his engineers and informed them that a drainage plan would be needed.

Dyches appealed the MPC’s denial of his preliminary plan to the Board of Commissioners, which was likewise provided with a recommendation by the MPC staff and county engineer. Pursuant to Dyches’ request that the Board place this matter on its agenda, it held public hearings on June 26 and July 17, 1992. At the latter hearing, the Board voted to uphold the MPC’s decision.

On July 20, Dyches filed a petition for mandamus and damages against the commissioners, in their representative capacities and individually. He stated that in accordance with administrative appeal procedures he had appealed the MPC’s denial of the preliminary plan to the county commission. On November 5, 1992, the superior court granted the commissioners’ motion to dismiss the petition on the ground that the Subdivision Regulations confer upon the MPC and not the commissioners the duty to approve or disapprove preliminary subdivision plans. Dyches appealed to the Georgia Supreme Court.

Meanwhile, Dyches returned to the MPC at its August 18, 1992, meeting with a drainage study by his engineers. This study concluded that the impacts of the proposed development would be minor and that the drainage area would not be adversely affected if proposed improvements were put in place. A drainage study does not, however, contain such things as construction drawings and specifications of drainage facilities, and it is not a drainage plan. The MPC tabled Dyches’ application because he did not submit a complete set of drainage plans as required by the Subdivision Regulations. Dyches’ engineers subsequently submitted a set of grading and drainage plans to the county engineer, who recommended approval.

Dyches’ application was considered by the MPC at a public hearing on December 1, 1992. At that time, Dyches submitted a complete set of grading and drainage plans to the MPC for the first time. At the hearing, residents requested that the proposed development be denied because of the drainage problem. Representatives of engineering firms retained by the residents stated that the proposed drainage system would not be adequate to accommodate the drainage from this development, because this is low land and the storage capabilities of the site will be taken away if it is filled properly. Assailing Dyches’ engineering report’s calculations and conclusions as to such things as storm water discharge, storage capacity, and excavation requirements, an Isle of Hope resident with an engineering background presented a list of reasons against approval of the application. An MPC member moved to deny the application based on “the need to protect the integrity of the neighborhood.” Another member stated that the reason for the denial was based on “the quandary regarding the dispute between the learned engineers.” The motion passed, with six members voting for it, two opposed, and one abstaining.

Pursuant to standard procedure, the MPC staff reviewed the minutes of the December 1 meeting and compiled a written decision based upon their opinion of the voting consensus. Since litigation was pending, they verified its accuracy with MPC members who had voted to disapprove the application, although this practice is not standard procedure.

The MPC decision states that its primary outstanding concern was the protection of adjacent properties from the potential flooding impacts of a 50-year storm event, following development of the site. The decision also states that the MPC could not conclusively find that the loss of the site’s natural storm water drainage and retention/ storage areas as a result of proposed filling would be effectively offset by the stormwater storage area proposed by Dyches.

This decision and other evidence show that there were MPC members who relied on the opinions of engineers opposing Dyches’ drainage plan, rather than their independent review of the plan and the Subdivision Regulations, in making their decision.

On January 8, 1993, Dyches filed a petition for mandamus and damages against the members of the MPC in their representative capacities and individually. As to whether Dyches was entitled to approval of the preliminary plan, the legal and factual dispute centered upon the county drainage ditch and tidegate, a proposed storage pond within Dyches’ property, and the extent to which replacing wetland with fill would aggravate flood “upstream,” i.e., in higher portions of the Isle of Hope. After conducting a de novo trial, the court granted the petition for mandamus. Based upon an analysis of the conflicting expert opinions, and a comparison of their respective credibility, the court found that although the proposed plan would slightly increase flood stages upstream, the storage pond does in fact provide adequate additional storage to compensate for the increased run-off. The court also found that the subdivision, if built according to the proposed grading and drainage plan, would worsen flooding in the drainage area during the 50-year storm event, but only incrementally, and that the drainage problems in general at Parkersburg would be greatly ameliorated if the county would add one additional tidegate to its canal. Based on these findings, the court concluded that the preliminary plan application complied with Subdivision Regulations and must be approved.

The superior court issued its mandamus order on March 11, 1993, directing the MPC to approve the preliminary plan at its next regular meeting. The court later gave the MPC until March 24 to file an appeal or approve the subdivision plan. At its regularly scheduled meeting on March 16, the MPC unanimously passed a motion giving its staff authorization to carry out the court order once a decision was made to appeal. No appeal was filed, and at its March 26 meeting, the MPC approved the preliminary plan for Phase I and the master plan for the proposed subdivision.

The next month, at its April 20 meeting, the MPC approved Dyches’ application for approval of the preliminary plan for Phase II of Chriswoodelle. The application was approved with five members voting in favor and one abstaining. Umbrage was taken by certain MPC members because of threats which they perceived Dyches’ attorney to have made against them. At trial, MPC members testified that they did not know Dyches personally, that they had nothing against him, and that they were just non-paid business people and citizens trying to make the right decision.

The superior court subsequently granted summary judgment in favor of the MPC members on Dyches’ claim for damages. Based on the MPC’s sovereign immunity, the court held that the MPC members are immune from suit in their official capacities. As to whether Dyches can recover against the MPC members in their individual or personal capacities, the court held that he must show that they acted maliciously toward him and that the necessary malice cannot be inferred from decisions concerning one matter or one petition, even if those decisions are without merit. The court ruled that plaintiff had not introduced sufficient evidence to support an inference of malice.

The Supreme Court transferred Dyches’ appeal against the county commissioners to this court because the mandamus became moot and the remainder of the appeal raises issues within this court’s jurisdiction. This has become Case No. A93A1727. On motion by Dyches, it was consolidated with his appeal against the MPC in Case No. A93A2361.

1. With respect to the issue of whether the county commissioners can be held liable for damages, Dyches argues in Case No. A93A1727 that as the final decision maker in the subdivision approval process, the county commission has the responsibility and obligation to hear appeals from MPC decisions on preliminary plans because the MPC is an advisory body with no authority to bind the county by its decisions.

The enabling statute for planning commissions was enacted in 1957. Ga. L. 1957, p. 420. As amended, the 1957 general Act was codified as Ga. Code Chapter 69-12 (Code Ann. §§ 69-1201 through 69-1233). Code Chapter 69-12 “was not carried forward into the Code of 1981, apparently because of the provision of Const. 1976, Art. IX, Sec. IV, Par. II (Ga. Code Ann. § 2-6102), which provided that ‘The General Assembly shall not, in any manner, regulate or restrict or limit the power and authority of any county, municipality, or any combination thereof, to plan and zone as herein defined.’ ” Code Chapter 69-12, Editorial Note to Code of 1981. We agree with the Attorney General’s opinion that the 1976 constitutional provision invalidated the 1957 Act because the Act regulated the zoning and planning power of cities and counties by establishing uniform procedural mechanisms for the implementation of that power. Op. Atty. Gen. 77-5. However, as pointed out, the invalidation of the general legislation did not rescind all those local ordinances enacted pursuant to it, and the local ordinances remain effective until amended or repealed by the city or county. Id.

The Savannah Metropolitan Planning Commission for Chatham County was established in 1955 by local act. Ga. L. 1955, p. 2535. Johnson v. Chatham County, 167 Ga. App. 283, 284 (2) (306 SE2d 310) (1983). By resolution in 1961, the county commission made it a joint city/county planning commission and elected to come within the scope of the 1957 Act as amended.

Section 3 of the 1957 Act (former Code Ann. § 69-1203) vested a planning commission with the principal power and duty to: (1) prepare a master plan; (2) prepare and recommend for adoption to the appropriate governing authority or authorities a zoning ordinance or resolution and map; (3) prepare and recommend for adoption regulations for the subdivision of land and to administer the regulations that may be adopted; and (4) prepare and recommend for adoption a plat or plats for an official map.

Consequently, the function of a planning commission, as a general rule under zoning laws, is to act as an advisory or recommending agency to the legislative department of a city or county in the passage of zoning ordinances and amendments. Macon Assn, for Retarded Citizens v. Macon-Bibb County Planning &c. Comm., 252 Ga. 484, 485 (314 SE2d 218) (1984); Royal Atlanta Dev. Corp. v. Staffieri, 236 Ga. 143, 145 (223 SE2d 128) (1976) and cits. However, both the enabling legislation and the Subdivision Regulations of Chatham County give the MPC authority to administer subdivision regulations after adoption by the governing authority. The Subdivision Regulations also give the MPC authority to give approval or disapproval to preliminary plats and to recommend approval or disapproval of final plats, although the enabling legislation (former Code Ann. § 69-1217) gave the planning commission authority to approve or disapprove both preliminary plans and final plats.

The first question in this case is whether the county commissioners, by refusing to overturn the MPC’s disapproval of Dyches’ preliminary plan, breached a duty owed to Dyches. The Subdivision Regulations make clear that the MPC and not the county commission has been given the duty of approving or disapproving preliminary plans, and no administrative appeal to the governing authority has been provided.® See also Royal Atlanta Dev. Corp., supra. Consequently, the county commissioners are not chargeable with any breach of duty.

2. In Case No. A93A2361, Dyches contends that the court erred in holding that the MPC members could only be held personally liable based upon a showing that they had acted maliciously and not for the negligent performance of their ministerial functions nor for the wilful and wanton abuse of their discretionary authority. Dyches argues that there are material issues of fact as to whether the MPC members acted maliciously, wilfully, or wantonly. He also charges them with bad faith.

Although the MPC does not have discretion to deny an application that is in compliance with subdivision regulations, it is questionable that its decision to disapprove the preliminary subdivision plan is aptly characterized as a ministerial act. See Vertner v. Gerber, 198 Ga. App. 645, 646 (402 SE2d 315) (1991); Rogers v. Mayor &c. of Atlanta, 110 Ga. App. 114, 121-122 (4) (137 SE2d 668) (1964).

In any event, whether the MPC members have immunity from suit is determined by OCGA § 51-1-20 (a). It does not distinguish between ministerial acts and discretionary functions. It provides, “A person serving with or without compensation as a member ... of any local governmental agency, board, authority, or entity shall be immune from civil liability for any act or any omission to act arising out of such service if such person was acting in good faith within the scope of his or her official actions and duties and unless the damage or injury was caused by the willful or wanton misconduct of such person.” OCGA § 51-1-20 (a); Johnson v. MARTA, 207 Ga. App. 869, 871 (2) (429 SE2d 285) (1993). See also Bunkley v. Hendrix, 164 Ga. App. 401 (296 SE2d 223) (1982).

Although OCGA § 51-1-20 (a) makes reference to good faith and not malice, the two concepts are interrelated. Neither, however, embraces negligence. “ ‘ “Bad faith” is not simply bad judgment or negligence, but it imports a dishonest purpose or some moral obliquity, and implies conscious doing of wrong, and means breach of known duty through some motive of interest or ill will. (Cit.)’ [Cit.]” Hendon v. DeKalb County, 203 Ga. App. 750, 758 (5) (417 SE2d 705) (1992). “Malice may consist in personal spite or in general disregard of the right consideration of mankind, directed by chance against the individual injured. [OCGA § 51-7-2.]” City of Hawkinsville v. Wilson & Wilson, 231 Ga. 110, 111 (3) (200 SE2d 262) (1973).

Nor do the concepts of wilful or wanton misconduct embrace negligence. “Wanton and wilful conduct differs from gross negligence. [Cit.] Wilful conduct is based on an actual intention to do harm or inflict injury; wanton conduct is that which is ‘ “so reckless or so charged with indifference to the consequences ... as to justify the jury in finding a wantonness equivalent in spirit to actual intent.” (Cit.)’ [Cit.]” Hendon, supra at 758.

It follows that the MPC members cannot be held personally liable based upon the mere negligent performance of their duties. See also Johnson v. Chatham County, supra (holding that a suit against the MPC is in effect a suit against a political subdivision and that the MPC is afforded sovereign immunity from a negligence claim).

The MPC members are not chargeable with bad faith or wilful or wanton misconduct arising from their May 27, 1992, denial of Dyches’ application, because it was not in compliance with the requirement in the Subdivision Regulations that it be accompanied by a set of grading and drainage plans. Dyches argues that they nonetheless can be held liable, because they violated his equal protection rights by continuing to approve other preliminary plans in accordance with customary procedure despite the sudden reversal in his case. The MPC staff members’ testimony upon which he relies in support of this allegation was that they did not recall how many preliminary subdivision plans subsequently have been required to have a separate drainage plan and were not aware of whether any such preliminary plans had been accompanied with a separate drainage plan as a requirement for approval. In contrast, one of the MPC members gave positive testimony that other applicants have been required to submit drainage plans as part of their application for preliminary approval. Dyches has failed to show discriminatory enforcement of the local ordinance. See Gouge v. City of Snellville, 249 Ga. 91, 94 (4) (287 SE2d 539) (1982) and cits.

Likewise, the MPC members are not chargeable with bad faith or wilful or wanton misconduct arising from their December 1, 1992, denial of Dyches’ application, because there is conflicting expert opinion evidence sufficient to create genuine issues of material fact and law on the question of whether the applicant met applicable requirements. This distinguishes City of Hawkinsville, supra, where the applicant for a business or license tax unquestionably met the only condition to its issuance, and plaintiff alleged a conspiracy as to certain city officials for wrongful denial.

Decided February 28, 1994.

Ingleshy, Falligant, Horne, Courington & Nash, Thomas A. Nash, for appellant.

Chamlee, Dubus & Sipple, George H. Chamlee, Emily E. Garrard, Ranitz, Mahoney, Coolidge & Mahoney, Thomas J. Mahoney, Jr., for appellees.

According to Dyches, the real reason for the MPC’s denial was not any objective criteria in the subdivision regulations but rather political pressure from neighborhood opponents to which MPC members bowed to further their own political interests. Notwithstanding this charge, there is insufficient evidence in the present record to support a finding of bad faith or wilful or wanton misconduct. See also Hendon, supra; Johnson, supra. The record is devoid of conduct that would lift the MPC members’ shield of immunity. McDay v. City of Atlanta, 204 Ga. App. 621, 622 (1) (420 SE2d 75) (1992).

Judgments affirmed.

Cooper and Smith, JJ., concur.

       At this meeting, it was announced that a letter from the county attorney stated that an amendment to the Subdivision Regulations, which had been passed by the MPC and gone before the county commission in July 1992, did not apply to Chriswoodelle Subdivision. Dyches states that this amendment gives the MPC express authority to deny approval of a preliminary plan based upon the public interest and was enacted for the purpose of defeating his application. However, there is no reference to the content of this amendment on the pages of the record cited by Dyches.

       Although the commissioners argue that the issue relating to damages, like the mandamus issue, is moot, it is not. Dyches seeks damages resulting from additional expense and delay in the approval of his preliminary plan. If the county commissioners had approved it, the additional expense and delay would have been reduced. The fact that the Supreme Court transferred this appeal to this court rather than dismiss it indicates that it, too, did not consider the appeal moot.

       However, Ga. Const. 1983, Art. IX, Sec. II, Par. IV states that authorization of the governing authority of each county and of each municipality to adopt plans and exercise the power of zoning “shall not prohibit the General Assembly from enacting general laws establishing procedures for the exercise of such power.” In 1985, the General Assembly enacted such laws. OCGA Chapters 36-66; 36-67; 36-67A.

         Apparently, § 703 of the Subdivision Regulations concerns the county commission’s approval or disapproval of the final plat. Section 703 does not appear at the page of the record cited by Dyches, and we have been unable to find it, so we are unable to review it.

       This does not mean that an aggrieved applicant is remediless. Dyches obtained mandamus relief in superior court.

        Royal held that approval or disapproval of a planned unit development by a planning commission, as opposed to issuance or withholding of a building or occupancy permit by the building inspector, was not an enforcement decision under former Code Ann. § 69-1211 (1) and thus was not appealable to a Zoning Board of Appeals.


text:
    A93A1844.
    HUNT v. THE STATE.
    (441 SE2d 514)
   Beasley, Presiding Judge.

The trial court allowed appellant to plead guilty to an indictment charging him with burglary, while reserving his right to appeal the denial of his motion to suppress. See Springsteen v. State, 206 Ga. App. 150 (424 SE2d 832) (1992); Mims v. State, 201 Ga. App. 277, 278 (1) (410 SE2d 824) (1991).

A sheriff’s deputy testified that on the morning in question he received a radio report of a burglary from county employee Yeoman. He stated that he had observed a black male run from behind a trailer, enter a pickup truck occupied by two other black males, and leave. Yeoman described the truck, the men, the road on which this truck was traveling, and its direction. The report was corroborated by two inmates working with Yeoman.

A lookout was posted, and the owner of the trailer was contacted by telephone. He stated that the front and back doors were locked when he left to go to work that morning; the deputy found the back door unlocked. The truck carrying appellant and the two others was thereafter stopped by city police responding to the lookout. The police patted them down and handcuffed them. The deputy and Yeoman went to the scene of the stop and Yeoman identified the truck and its occupants. They were taken to jail, and the truck was towed there and searched. Items found in the truck were soon thereafter identified by the owner as having come from the trailer.

Appellant moved to suppress the fruits of the search and any statements obtained from him or the passengers of the truck. He contended that the stop was without reasonable and articulable facts to warrant any suspicion that he had committed a crime, the search of the vehicle was without probable cause, and the arrest was based on the illegal search. After hearing, the court denied the motion, having found that at the time the truck was stopped and appellant arrested, there was probable cause to believe defendant had committed burglary. This was based on the deputy’s testimony that, prior to appellant’s truck being stopped, the deputy had discovered that the back door of the trailer was unlocked although the owner had stated he left it locked.

Under the facts of this case, there was no probable cause for an arrest of appellant at the time the police officers effected it.

When an officer operating under exigent circumstances posts a lookout, the arresting officer “need not personally be aware of all the facts which would support a probable cause determination so long as it can be established by evidence that the [arresting] officer’s actions were the end result of a chain of information-sharing, one link of which is an officer in possession of the ‘information requisite to support an independent judicial assessment of probable cause.’ [Cit.]” Parker v. State, 161 Ga. App. 37, 39-40 (4) (288 SE2d 852) (1982). In this case, there is no evidence that at the time the lookout was posted, the deputy possessed information requisite to support a probable-cause determination. See Davis v. State, 158 Ga. App. 271 (279 SE2d 720) (1981). Under the rule stated in Parker, his subsequently obtained knowledge cannot be imputed to the arresting officer.

However, the fact that the officers at the stop exceeded their lawful authority by arresting appellant through handcuffing him, rather than merely detaining him and patting him down, did not taint the search of the truck.

Decided February 28, 1994.

Lynn W. Wilson, for appellant.

Tommy K. Floyd, District Attorney, for appellee.

The stop of the truck was supported by reasonable and articulable suspicion, Montgomery v. State, 204 Ga. App. 534, 536 (2) (420 SE2d 67) (1992), although under Davis it was not supported by probable cause. Pursuant to the investigative stop, the police were authorized to detain it briefly. By the time police seized appellant’s truck by towing it to the jail, the deputy and Yeoman had appeared on the scene and established probable cause both to arrest appellant and search the truck. Under these circumstances, the fact that appellant was handcuffed prematurely did not invalidate the seizure and search of the truck. It was the product of a valid investigative stop and not an illegal arrest. For these reasons, Davis is distinguishable.

“Although the trial court did not deny appellant’s motion on this basis, a trial court’s ruling will be affirmed if it is right for any reason. [Cit.] ” Gamble v. State, 194 Ga. App. 765, 767 (1) (391 SE2d 801) (1990). Thus, the trial court did not err by denying appellant’s motion to suppress.

Judgment affirmed.

Cooper and Smith, JJ., concur.

       There is no evidence of any statements made by appellant. On appeal, he does not make reference to any statements, but only argues that the articles seized as a result of the search are inadmissible.


text:
    A93A2316.
    CROCKER v. DOUGLAS COUNTY.
    (441 SE2d 515)
   Beasley, Presiding Judge.

This case involves a slip and fall in a puddle of water on an interior stairwell landing of the Douglas County Courthouse. Defendant Douglas County was granted summary judgment and plaintiff Crocker appeals.

“ ‘(I)n order to state a cause of action in a case where the plaintiff alleges that due to an act of negligence by the defendant he slipped and fell on a foreign substance on the defendant’s floor, the plaintiff must show (1) that the defendant had actual or constructive knowledge of the foreign substance and (2) that the plaintiff was without knowledge of the substance or for some reason attributable to the defendant was prevented from discovering the foreign substance.’ Alterman Foods v. Ligón, 246 Ga. 620, 623 (272 SE2d 327) [(1980)]. [To warrant summary judgment, defendant must] show that (1) it had neither actual nor constructive knowledge of the foreign substance or that (2) plaintiff had knowledge of the substance. [Cits.]” Baggs v. Chatham County Hosp. Auth., 187 Ga. App. 834, 836 (2) (371 SE2d 653) (1988).

Plaintiff Crocker’s affidavit in opposition to summary judgment elaborated upon her deposition testimony, which was neither contradictory nor vague or equivocal. The affidavit stated, inter alia, the following. On April 6, 1988, Crocker went to the courthouse to register to vote, obtain records from a deed room, and locate a friend employed by the county. It began to rain lightly as she arrived between 8:45 and 9:00 a.m. She was first in the record room for about 20 to 30 minutes. As she left and started down the hallway toward the stairwell to go downstairs, she saw through the window that it was beginning to rain harder. She walked into the main lobby area. No one with a wet raincoat or dripping umbrella was standing inside the doorway, or near the entrance to the main courtroom, or around the stairwell. During the time she walked toward the stairs, she did not observe a single bucket or container which could have been recognized as catching water from a leaky roof.

There was no mat at the top of the stairway or at the top of the landing (described as the bottom of the first set of stairs and the top of the second set of stairs, leading from the upper to the lower portion of the courthouse). She walked down the stairs normally, holding the rail in her right hand, walking slowly, and watching where she walked. She reached the bottom of the first section of stairs (the landing) without incident.

As she turned to the right, preparing to continue down the second flight of stairs, she glanced up momentarily but looked back down as she was taking her next step. Her foot touched down close to the right corner of the stairs, in the direction she was facing, near the stair rail post. She simultaneously noticed she was stepping into a puddle of water. As her foot contacted the wet floor, she slipped and began to fall.

She fell from the landing to the bottom of the second stairway. There was no one on it when she fell, but after she fell she noticed many people who appeared to be coming out of the lower courtrooms. She tried to catch herself from falling but ended up crushing her left wrist.

The puddle was about the size of a basketball but because of the lighting conditions and the location of the puddle, it was virtually impossible to see until she was stepping into it. She could not alter her step in mid-stride because to do so would have put her at greater risk of falling down the stairway. There was absolutely no way she could have seen the puddle before she was stepping into it.

Her affidavit further states that at all times during the incident, she exercised the required degree of care of any normally prudent person under the same conditions or similar circumstances. There was absolutely nothing else she could have done to have avoided the fall.

Courthouse maintenance supervisor Clark averred in affidavit that during the time frame of Crocker’s fall, every entrance door to the courthouse had posted on it the notice, “Caution: Beware of slippery floors especially on rainy days. Please wipe your feet.” Clark was asked in deposition about what steps were taken by the maintenance crew when it was raining to ensure that people did not fall inside the courthouse and on the stairs leading down to the lower area. He testified that they used non-slip wax, had signs on the door stating, “Caution: Floor slippery when wet,” had eight-foot mats for each doorway coming in, and periodically went around and checked to see if anybody “shook umbrellas off or whatever” and got water on the floor so they could get it mopped up. Clark further testified that in April 1988, the courthouse was having problems with roof leaks; there were four leaks at that time which they had attempted to patch; the leaks were not entirely repaired until 1990; there had been a leak approximately ten to fifteen feet in the back hallway of the area of the stairwell; the roof leaks kept moving around; there had been roof leaks since he began working there in 1978; non-skid tape had been installed on the stairway in 1978 and had not been replaced; portions of the tape had torn off and had not been repaired; he knew of another fall on the stairway prior to Crocker’s; he had not filled out any accident reports recently and agreed that could be the result of finally getting a new roof.

According to safety management consultant McCarroll’s affidavit, he had personally inspected the stairway where the incident occurred. In his opinion, Crocker’s fall resulted from the formation of a basketball-sized puddle on the portion of the landing where she slipped as described in her deposition and from the incorrect placement of the non-skid tape on the landing. The puddle most likely resulted from a roof leak or some other water source that would provide a continuous source of water for an extended period of time. Because of certain physical characteristics, the water could not have come from a raincoat, umbrella, or from having been tracked from outside the courthouse.

He also stated that in high traffic areas such as a stairway, the non-skid tape should be replaced every two years. Much of the tape found on the stairway was useless and provided no protection at all because the rough surface was substantially worn away. Placement of the tape on the area where Crocker fell provided no protection whatsoever. The defects of the leak and misapplication of the non-skid tape occurred over an extended period of time and could and should have been corrected by maintenance or safety personnel long before Crocker’s incident occurred.

Finally, McCarroll averred, the puddle as described by Crocker would not have ordinarily been detectible by a casual user of the stairway until the person was in the process of actually stepping into it.

Decided February 28, 1994.

Hughes & Gibson, Ralph E. Hughes, for appellant.

Drew, Eckl & Farnham, James M. Poe, Mari L. Myer, for appellee.

The evidence on summary judgment left open at least the critical factual question of the county’s constructive knowledge of the water hazard on the stairwell which, it may reasonably be inferred, resulted from rain entering through leaks in the roof, of which the maintenance staff was aware. The county’s evidence did not establish its compliance with reasonable inspection and/or cleaning procedures such as would establish its lack of actionable constructive knowledge. Baggs, supra at 836 (3); Shiver v. Singletary, 186 Ga. App. 746, 747 (2) (368 SE2d 523) (1988). Nor did the county show as a matter of law that Crocker knew, or should have known, of the water hazard.

The county was not entitled to summary judgment.

Judgment reversed.

Cooper and Smith, JJ., concur.


text:
    A93A2363.
    WILLIAMS et al. v. FORTSON, BENTLEY & GRIFFIN et al.
    (441 SE2d 686)
   Beasley, Presiding Judge.

Ralph and Launa Williams purchased a house from Rex and Ed-dye Gibson and sued them for breach of contract, fraud, and negligence. They included as defendants a pest control company, the attorney who conducted the closing (Dillard), and the law firm with which the attorney is associated as an employee (Fortson, Bentley & Griffin). Their appeal is from the grant of Dillard’s and Fortson’s motion for summary judgment.

Plaintiffs had no communication with Dillard prior to closing. During closing they signed both a disclaimer of representation and a release and covenant not to sue. The disclaimer stated that legal services performed by the law firm were on behalf of the lender and not the borrower, and the borrower was encouraged to retain counsel to see that the borrower’s legal interests and rights were protected. Plaintiffs agreed on the release that it would be a defense to any action or proceeding against the lender or law firm. The Gibsons paid closing costs, including attorney fees, pursuant to the sales contract.

The complaint alleges that Dillard made representations to plaintiffs during closing that she was their attorney and would take care of them; that during closing she said the termite report was unacceptable because it stated that an additional inspection of the residence was required; that after closing the sellers provided a revised but still incomplete report in that it did not have a required diagram of previous pest infestations; that Dillard breached a duty she had assumed to plaintiffs by accepting this termite report and disbursing sales proceeds prior to communicating with plaintiffs regarding the revised report; that as a result of Dillard’s conduct, which constitutes legal malpractice, plaintiffs were damaged by purchasing a home with substantial termite damage; and that Dillard owed a duty of reasonable care to plaintiffs as parties who relied upon information she provided in pursuit of her business and profession.

In plaintiffs’ affidavits and depositions, they admitted that they signed the disclaimer and release at closing and were capable of reading and understanding them. However, they testified that they did not sign the disclaimer until at least halfway through closing, that Dillard told them it was not necessary for them to read everything presented for signature, that she rushed them through closing, and that she never told them she represented the lender. The sellers and Dillard testified that Dillard stated during closing that she represented only the lender.

The court held that, because of the representation disclaimer signed by plaintiffs, (1) no attorney-client relationship existed between plaintiffs and these defendants, and (2) plaintiffs cannot recover as foreseeable third parties who relied upon information provided by counsel.

1. Plaintiffs contend that summary judgment was improper on the issue of legal malpractice.

(a) Without citing authority, plaintiffs argue that verbal representations by Dillard throughout closing that were directly contrary to the disclaimer, possibly not signed by plaintiffs until much if not all of closing had transpired, raise questions as to its validity. They argue that since the representation disclaimer makes reference to “the transaction you are about to enter,” it should have been executed prior to closing.

“ ‘There are few rules of law more fundamental than that which requires a party to read what he signs and to be bound thereby. (Cits.) . . .’ [Cit.]” Hudson v. Windholz, 202 Ga. App. 882, 887 (3) (416 SE2d 120) (1992). See also Thomas v. Eason, 208 Ga. 822, 827 (2) (69 SE2d 729) (1952); Van Den Berg v. Northside Realty Assoc., 172 Ga. App. 591, 592 (2) (323 SE2d 839) (1984). None of plaintiffs’ assertions constitutes any exception to this rule.

(b) “ ‘ “It is generally held that an attorney-client relationship must be demonstrated before a plaintiff may recover in a legal malpractice suit. . . .” (Cits.)’ [Cit.]” Legacy Homes v. Cole, 205 Ga. App. 34, 35 (421 SE2d 127) (1992). As in Legacy Homes, there was no contact between plaintiffs and counsel prior to closing, and as in Carmichael v. Barham, Bennett, Miller & Stone, 187 Ga. App. 494 (370 SE2d 639) (1988), plaintiffs executed a representation disclaimer at closing. No attorney-client relationship has been demonstrated, and thus plaintiffs have no claim against these defendants for legal malpractice.

(c) Plaintiffs argue that once Dillard undertook to ensure that an acceptable termite report was delivered, her actions created a duty of care to them as third parties if not clients.

“Before an action for malpractice or negligence can lie against an attorney, there must be a legal duty from the attorney to the plaintiff. Like many states, the trend in Georgia has been to relax the rule of strict contractual privity in malpractice actions, recognizing that under certain circumstances, professionals owe a duty of reasonable care to parties who are not their clients.” Driebe v. Cox, 203 Ga. App. 8, 9 (1) (416 SE2d 314) (1992). Driebe held that the seller of real estate who brought his own attorney to closing but chose to rely upon the buyer’s attorney in drafting a warranty deed had no reason to rely on such attorney and therefore had no claim against him for negligence.

In Simmerson v. Blanks, 149 Ga. App. 478 (254 SE2d 716) (1979), relied on by plaintiffs, the court held that when in a real estate sale the buyer’s attorney promised the seller to file certain papers, he thereby became the seller’s voluntary or gratuitous agent with the duty to exercise slight diligence. This duty was conditioned upon the fact that the attorney should have realized that the gratuitous promise would cause the seller reasonably to rely upon him to perform it and to refrain from having it done by other available means.

Under certain circumstances a professional who supplies information has a duty of reasonable care and competence to foreseeable third parties who rely upon the information. Badische Corp. v. Cay lor, 257 Ga. 131 (356 SE2d 198) (1987); Roberts &c. Assoc. v. Rhodes-Haverty Partnership, 250 Ga. 680 (300 SE2d 503) (1983). The reliance must be justifiable, and this additional duty may be limited by appropriate disclaimers which would alert those not in privity with the supplier of the information that they rely upon it only at their peril.

The representation disclaimer precluded an actionable reliance on any promise by Dillard with respect to the termite report. This case resembles Driebe rather than Simmerson.

2. Plaintiffs contend that the court erred in granting defendants’ motion for summary judgment on the issue of breach of fiduciary duty.

The only fiduciary relationship which arguably existed between plaintiffs and these defendants is that of attorney and client. See Par-due v. Bankers First Fed. Savings &c. Assn., 175 Ga. App. 814 (334 SE2d 926) (1985) (holding that there is no fiduciary duty between a lender and borrower). As held in Division 1, no such relationship existed. Summary judgment was proper on this claim.

Decided February 28, 1994.

William R. Sotter, for appellants.

Smith, Gambrell & Russell, Matthew S. Coles, David A. Handley, Garcia & Singh, Tony D. Coy, Webb, Carlock, Copeland, Semler & Stair, Fred M. Valz III, for appellees.

3. Since the court correctly granted summary judgment to the defendants on the question of duty, negligence is not an issue. First Fed. Savings Bank of Brunswick v. Fretthold, 195 Ga. App. 482, 485 (394 SE2d 128) (1990).

Judgment affirmed.

Cooper and Smith, JJ., concur.


author: McMurray, Presiding Judge.

text:
    A93A2555.
    PERKINS v. THE STATE.
    (441 SE2d 511)
   McMurray, Presiding Judge.

Defendant was convicted of child molestation, cruelty to children and peeping Tom. The trial court merged the peeping Tom conviction with the cruelty to children conviction and sentenced defendant to serve 15 years in confinement for cruelty to children to be followed by 15 years on probation for child molestation. Defendant moved for a new trial. The motion was denied and defendant appealed. Held:

1. On the eve of trial, defendant sought and obtained a psychiatric evaluation to determine his competency to stand trial. Based on the results of the evaluation, defendant was deemed competent and the case went on in spite of defense counsel’s assertions that defendant was unable to assist with his defense. In the midst of the trial, but outside the presence of the jury, defendant physically attacked the assistant district attorney without provocation. After defendant was subdued, defense counsel moved for a mistrial, arguing that defendant was not in his right mind. The trial court denied the motion.

Defendant raised the issue of his competency in his motion for a new trial and the parties presented evidence in that regard. The trial court did not make a specific finding with regard to defendant’s competency; it simply denied the motion for a new trial.

Defendant asserts the trial court erred in failing to grant his motion for a mistrial and hold a hearing on the issue of competency. See Baker v. State, 250 Ga. 187, 190 (297 SE2d 9) (if at any time while criminal proceedings are pending, the trial court observes facts raising doubt as to competency of defendant, the issue of competency should be settled without delay). Based on the evidence presented at pretrial and post-trial proceedings, it cannot be said that the trial court erred in failing to conduct a competency hearing in the midst of trial. Hosick v. State, 262 Ga. 432, 434 (3) (421 SE2d 65). See also Harris v. State, 256 Ga. 350, 351 (2), 352 (349 SE2d 374) (fact that trial court went forward with trial after considering testimony concerning defendant’s competency is sub silentio finding of competency).

2. Defendant enumerates error upon the failure of the trial court to sever Count 1, charging him with molesting his three-year-old niece, from Counts 2 and 3, charging him with cruelty to children and peeping Tom as to a thirteen-year-old girl that he followed into the bathroom at a movie theater. In this connection, he argues that the child molestation charge and the cruelty to children and peeping Tom charges are unrelated and points out that they occurred approximately four months apart.

“[A] defendant has a right to severance ‘where the offenses are joined solely on the ground that they are of the same or similar character . . . “because of the great risk of prejudice from a joint disposition of unrelated charges.” ’ [Cits.] However, where the joinder is based upon the same conduct or on a series of acts connected together or constituting parts of a single scheme or plan, severance ‘lies within the sound discretion of the trial judge since the facts in each case are likely to be unique.’ [Cits.]” Coats v. State, 234 Ga. 659, 662 (4) (217 SE2d 260).

The evidence demonstrated that the cruelty to children and peeping Tom charges stemmed from sexual acts: Defendant peered at the 13-year-old girl when she went into the bathroom stall and he tried to open the stall door. (The girl testified that she saw defendant looking at her and that she was terrified by the entire experience. She also testified that she thinks about the incident every day and continues to suffer mental anguish.) Thus, the child molestation and the cruelty to children and peeping Tom charges were predicated upon acts constituting a single scheme or plan to prey upon young female victims and satisfy the sexual desires of defendant. It cannot be said that the trial court abused its discretion in denying defendant’s motion to sever.

3. The trial court did not err in admitting similar transaction evidence consisting of the molestation of defendant’s former stepdaughter. The evidence corroborated the victims’ testimony by demonstrating defendant’s lustful disposition and his propensity to seek sexual gratification from young girls. See Warren v. State, 95 Ga. App. 79, 80 (1a) (97 SE2d 194).

Decided February 28, 1994.

David C. Butler, for appellant.

Thomas J. Charron, District Attorney, Debra H. Bernes, Nancy I. Jordan, Assistant District Attorneys, for appellee.

4. Defendant asserts the trial court erred in refusing to grant a motion for mistrial because the assistant district attorney referred to a similar transaction in his opening statement (involving yet another girl of tender years) but evidence of that transaction was not presented (because the girl could not recount the circumstances). We find no error.

After the girl took the stand, the parties stipulated, and the trial court instructed the jury, that the girl’s testimony, such as it was, added nothing to the case one way or the other. Thereafter, the State called additional witnesses to the stand and rested. The defense rested without calling any witnesses and court was adjourned. It was not until the next day that defendant moved for a mistrial.

The motion for a mistrial was not timely and must be considered waived because of the delay in making it. Worley v. State, 201 Ga. App. 704, 705 (411 SE2d 760). Even if the motion had been timely, we would find no error because the assistant district attorney’s opening statement does not appear in the record. Thus, we have no way of knowing just what the assistant district attorney said about the girl’s expected testimony and we cannot discern whether defendant was prejudiced by his remarks.

5. The trial court did not err in instructing the jury in a preevidentiary charge that defendant “may also present evidence, but ... is not obligated to do so. The burden is always on the State to prove each essential element of each of the offenses charged beyond a reasonable doubt. The law never imposes upon the Defendant in a criminal case the burden of testifying, calling any witnesses, or introducing any evidence.” See Rowe v. State, 162 Ga. App. 742 (293 SE2d 358); Jones v. State, 137 Ga. App. 612 (2) (224 SE2d 473).

6. The trial court did not err in refusing to charge the jury on sexual battery. “[S]exual battery is not a lesser included offense of child molestation as a matter of law. See Teasley v. State, 207 Ga. App. 719 (429 SE2d 127) (1993). Therefore, in a case such as this where the defendant is indicted only for child molestation [with regard to his niece], there would never be any reason for the court to charge the jury on sexual battery as a lesser included offense. Such a charge would be error.” Proper v. State, 208 Ga. App. 471, n. 1 (431 SE2d 133).

Judgment affirmed.

Johnson and Blackburn, JJ., concur.


author: Smith, Judge.

text:
    A93A2167.
    B & C TIRE & BATTERY, INC. et al. v. COOPER TIRE & RUBBER COMPANY.
    (441 SE2d 468)
   Smith, Judge.

Cooper Tire & Rubber Company brought suit on a commercial account against B & C Tire & Battery, Inc., Bobby Franklin, and Lamonta Franklin. Cooper alleged that B & C owed $353,006.07 on the account and that the Franklins were personally liable for that amount under the terms of a guaranty agreement. All three defendants answered and admitted that B & C had defaulted under the terms of its commercial credit agreement with Cooper. However, all three denied that the amount owed was as stated in the complaint. The Franklins also alleged that the copy of the guaranty agreement attached to Cooper’s complaint was incomplete and that the agreement also included a letter, a copy of which was attached to their answer. Cooper moved for summary judgment, which was denied. At the close of evidence at trial, the court directed a verdict against the Franklins in the amount of $200,000. The jury returned a verdict against B & C in the amount of $343,023.59, and judgment was entered accordingly.

The record reveals that in December of 1991, B & C, which owned three retail stores in South Georgia, had been dealing with its supplier, Cooper Tire, on a credit basis for approximately thirteen years. Its credit line had been $300,000 until 1987. In that year, B & C asked to increase its credit line to $500,000. Cooper agreed, provided the Franklins executed a personal guaranty for up to $200,000, which they did. The guaranty provides, in pertinent part, as follows: “We, the undersigned, do hereby jointly and severally . . . guarantee to you . . . : (1) the prompt and punctual payment by the purchaser of the purchase price of all goods, wares and merchandise which you have heretofore sold and hereafter sell to the purchaser, and (2) the due and punctual performance by purchaser of any and all contracts heretofore and hereafter entered into with you, both up to a combined maximum of two hundred thousand dollars ($200,000.00[)].”

When this guaranty agreement was executed, the Franklins prepared a memorandum of understanding. It was signed by James Brumley, the same representative of Cooper Tire who witnessed the guaranty agreement. The memorandum, typed by Mrs. Franklin, reads as follows: “Gentlemen: In reference to the personal guarantee from Bobby Y., and Lamonta Franklin to Cooper Tire Co., we are signing it with the following understanding that was relayed to us by Mr. Kevin Donahu, and Jack Clay, of Cooper Tire from the Credit Dept. in Findlay Ohio. The agreement was that a $500,000+ credit line would be extended to B&C Tire & Battery Inc., Folkston, Georgia if we executed an [sic] personal guarantee for $200,000 for this corporation. In case of credit line reduction the line of personal guarantee shall be reduced by same amount. The above stipulations reflects [sic] the reasons behind the signing of a personal guarantee for B&C Tire & Battery Inc[.], Folkston, Ga., to Cooper Tire Co. from Bobby Y. and Lamonta Franklin. Acknowledgement of this is reflected by signatures of both Bobby Y. Franklin, and a Cooper Representative.”

In this appeal, the sole enumeration of error is the Franklins’ contention that the trial judge erred by granting a directed verdict against them based upon his determination that the memorandum was not a part of the guaranty agreement. The Franklins contend that the entire agreement between the parties consisted of both the guaranty agreement itself and the memorandum of understanding.

1. The Franklins first argue that they are personally liable only for corporate debt exceeding the corporation’s previous $300,000 credit line, up to a maximum amount of $200,000. A $300,000 line of credit had been in place for years and had been extended to the corporation without the requirement of a personal guaranty. The Franklins argue that they understood their personal guaranty to be consideration only for the expansion of the corporation’s credit line. They maintain they therefore are not liable for corporate credit extended under the old credit limit — all debt under $300,000 — to which the personal guaranty did not apply. Since a jury in this case found the corporation owed Cooper Tire $343,123.59, the Franklins contend they would be liable only for $43,123.59.

The appellants correctly assert that a written contract may consist of multiple documents. Bd. of Regents v. Tyson, 261 Ga. 368, 369 (1) (404 SE2d 557) (1991). It is also true that “[w]here instruments are executed at the same time in the course of the same transaction, they should be read and construed together. [Cit.]” Hardin v. Great Northern Nekoosa, 237 Ga. 594, 597 (229 SE2d 371) (1976). However, we cannot agree with appellants’ contentions for two reasons.

First, we find nothing in the record to support appellants’ argument that the trial court did not consider the memorandum. The trial court carefully considered the exact language of the guaranty agreement, found that it clearly set forth that the Franklins were personally liable for the corporation’s account up to a maximum of $200,000, and found that the memorandum “does not, in my opinion, change the matter in any way.”

Second, Cooper Tire points out that at the time they were deposed, appellants failed to assert their understanding that their personal liability was limited to amounts over $300,000. Even assuming that is true, we acknowledge that the Franklins’ position may very well reflect their understanding of their personal liability at the time they signed the documents. The terms as understood by the Franklins may have constituted a reasonable agreement; nonetheless, we agree with the trial court that even when read together, the documents are unambiguous and clearly do not reflect the Franklins’ understanding. On the contrary, the plain language of both documents indicates that the Franklins are liable for the debt of the corporation up to a maximum of $200,000. “Where the terms of a written contract are clear and unambiguous, the court will look to the contract alone to find the intention of the parties. Such a contract is the only evidence of what the parties intended and understood by it. No construction is required or even permissible when the language employed by the parties in the contract is plain, unambiguous and capable of only one reasonable interpretation.” (Citations and punctuation omitted.) Paige v. Jurgensen, 204 Ga. App. 524, 525 (419 SE2d 722) (1992). The trial court did not err in directing a verdict on that basis against the Franklins for $200,000.

2. Alternatively, the Franklins argue that since Cooper Tire reduced its credit to B & C Tire to zero, their personal liability was also reduced to zero under the terms of the memorandum portion of the agreement. They contend they therefore are not liable under the guaranty for any amount.

We agree with appellants that they would not be liable in any amount if the evidence established that Cooper Tire had reduced B & C’s credit line to zero. However, the evidence does not support that contention.

Mr. Franklin’s testimony on this issue was in conflict. He testified at one point that he never received notification that the corporation’s credit line was being reduced. He also testified that he placed an order on January 27, 1992, and was told that the order was not accepted because his “credit was cut.”

Paul Johnson, Cooper Tire’s regional credit manager, testified that Cooper Tire never notified B & C that it had reduced its line of credit. B & C Tire was billed in December 1991 for $243,000. Under the terms of the credit agreement, the amount billed was due by January 20, 1992. Johnson testified that he did refuse to ship the order placed on January 27, 1992, not because the credit line had been reduced, but because B & C had already exceeded its line of credit by purchasing over $600,000 worth of tires for which no payment had been received. Of this amount, $243,000 was overdue. Although Bobby Franklin testified he paid the December invoice, he admitted that the check he remitted in payment of that invoice was returned by Cooper Tire because it was not signed. He further admitted that the invoice has never been paid.

Decided February 14, 1994

Reconsideration denied March 1, 1994

Adams & Brooks, John B. Adams, for appellants.

Thomas & Settle, W. Vincent Settle III, for appellee.

Viewing the evidence in its entirety, it is clear that the line of credit was not reduced. Indeed, it is because over $600,000 remained owing after the last shipment that this action arose.

A motion for directed verdict may be granted “[i]f there is no conflict in the evidence as to any material issue and the evidence introduced, with all reasonable deductions therefrom, shall demand a particular verdict. . . .” OCGA § 9-11-50 (a). In reviewing the grant of a directed verdict the evidence must be construed most favorably to the party opposing the motion. Gantt v. Patient Comm. Sys., 200 Ga. App. 35, 36 (1) (406 SE2d 796) (1991). Even viewing the evidence in the light most favorable to the Franklins, the evidence introduced, with all reasonable deductions therefrom, demanded a verdict for Cooper Tire and against the Franklins for $200,000 on the guaranty.

3. Cooper Tire filed a motion for supersedeas bond after this appeal had been pending for several months. Because this opinion is being issued only a few days after receipt of that motion, it is hereby denied. Upon remittitur, however, the trial court may entertain a renewed motion for supersedeas bond should further appellate review be sought.

Judgment affirmed.

Beasley, P. J., and Cooper, J., concur.


text:
    A93A2312.
    THE STATE v. SCHUMAN.
    (441 SE2d 466)
   McMurray, Presiding Judge.

Defendant Victor Schuman was indicted for theft by deception in that he “did obtain property, to wit: United States currency in an amount greater than $500.00, the property of Judith Rausher, with the intention of depriving the owner of said property, by the following deceitful means, by representing to Judith Rausher that he would provide her a first mortgage on certain real property located in Land Lot 48 of the 18th District of DeKalb County in exchange for $300,000.00 which representation was false and which the accused knew or believed to be false.” Defendant Schuman was also indicted on two counts of theft by taking. Defendant filed motions to dismiss the indictment, alleging, in pertinent part, that “the instant prosecution [is] a violation of Article I, Section I, Paragraph XXIII of the Constitution of the State of Georgia [and] is the result of a disgruntled business associate of the Defendant who, after feeling frustrated in pursuing the alleged debt in United States Bankruptcy Court, convinced the Office of the District Attorney to pursue the debt via a criminal prosecution.” Defendant also filed general demurrers to the indictment, alleging, in pertinent part, that “the indictment. . . fails adequately to charge the Defendant with any offense against the laws of the State of Georgia [and] fails to sufficiently set out the charge of theft by deception and the additional two charges of theft by taking.”

After a hearing, the trial court entered the following order: “The transaction which forms the basis of the present criminal prosecution concerns a loan agreement between a Limited Partner and a General Partner. Said agreement was knowingly and voluntarily entered into by both parties with the loan documents, which included a Promissory Note and a Deed to Secure Debt, setting forth the specific rights of each party and the specific remedies in the event of default.

“Upon default the Limited Partner exercised her rights pursuant to the loan documents, foreclosed on both parcels of property which collateralized the loan, incurred no loss, and may have realized a gain.

“Prior to and during the initiation of the present criminal proceeding, the dispute which is the subject of the present criminal prosecution was the subject of a civil proceeding in Bankruptcy Court.

“Based upon the facts and circumstances of the loan transaction at issue, there is insufficient evidence of the Defendant’s criminal intent.

“Based upon the foregoing, the Court finds that the present case is civil in nature and to allow the present prosecution to continue would constitute a violation of the Defendant’s right to due process of law as provided by the Constitution of the State of Georgia and the Constitution of the United States.

“Article I, Section I, Paragraph XXIII of the Constitution of the State of Georgia states ‘there shall be no imprisonment for debt.’ This provision has been interpreted as standing for the proposition that ‘our criminal laws can not be invoked to enforce the payment of debt.’ Ray v. State, 40 Ga. [App.] 145, 146 (1929); see also Messenger v. State, 209 Ga. 340 [(72 SE2d 460)] (1952).

“Based upon the foregoing and for other good cause shown, it is HEREBY ORDERED that the indictment in the instant case be dismissed with prejudice.” The State filed this appeal pursuant to OCGA § 5-7-1 (1). Held:

1. “It is the substance and function of a motion and not its nomenclature that controls. State v. Allen, 192 Ga. App. 730, 734 (386 SE2d 394). The substance and function of [defendant Schuman’s] motion [to dismiss] is that of a demurrer. See generally Ga. Crim. Trial Prac., §§ 14-19, 14-20 (1992 ed.). However, the [motion to dismiss] in this case is a speaking demurrer, as it attempts to add facts not otherwise apparent on the face of the indictment by means of stipulation. ‘ “A speaking demurrer is one which alleges some new matter, not disclosed by the pleading (indictment) against which the demurrer is aimed and not judicially known or legally presumed to be true. Such a demurrer presents no question for decision, and should never be sustained.” ’ (Citations omitted.) Walters v. State, 90 Ga. App. 360, 365 (83 SE2d 48). Speaking demurrers present no legal authority for quashing an indictment. Id. Speaking demurrers are void. Ga. Crim. Trial Prac., supra at p. 381, § 14-20. ‘A demurrer may properly attack only defects which appear on the face of the indictment and a demurrer which seeks to add facts not so apparent but supply extrinsic matters must fail as a speaking demurrer.’ State v. Holmes, 142 Ga. App. 847, 848 (237 SE2d 406). Here the procedure used was ‘in effect an attempt to convert the hearing on the demurrer into what, in civil practice, would be termed a motion for summary judgment.’ Id. at 849. There is ‘no authority for such practice.’ Id.” State v. Givens, 211 Ga. App. 71, 72 (438 SE2d 387). It follows that the trial court in the case sub judice erred in dismissing the indictment “with prejudice.”

Decided February 14, 1994

Reconsideration denied March 1, 1994

J. Tom Morgan, District Attorney, Thomas S. Clegg, Assistant District Attorney, for appellant.

Michael K. McIntyre, for appellee.

We do not reach issues relating to the sufficiency of the indictment as raised in defendant Schuman’s general demurrers since the trial court did not reach these issues. See Romano v. State, 193 Ga. App. 682 (1) (388 SE2d 757). However, we note that the allegations of the indictment seem to allege violations of OCGA §§ 16-8-3 (a), (b) (5) and 16-8-2 and that “[e]very indictment of the grand jury which states the offense in the terms and language of [the] Code or so plainly that the nature of the offense charged may easily be understood by the jury shall be deemed sufficiently technical and correct.” OCGA § 17-7-54 (a).

2. Defendant Schuman’s motion for reconsideration of his motion to dismiss this appeal is hereby denied.

Judgment reversed.

Johnson and Blackburn, JJ., concur.


text:
    A93A2406.
    WINN DIXIE STORES, INC. v. CARROLL.
    (441 SE2d 432)
   Smith, Judge.

Patricia Carroll filed a complaint against appellee Winn Dixie alleging that Winn Dixie’s negligence caused her personal injuries. The trial court denied Winn Dixie’s motion for summary judgment, and granted a certificate of immediate review. We granted Winn Dixie’s application for interlocutory appeal, and we now reverse.

In a “slip and fall” case, “not only must the plaintiff show that the defendant had knowledge of the presence of the foreign substance, but the plaintiff must also show that he was without knowledge of its presence. The customer must exercise ordinary care for his own safety, and must by the same degree of care avoid the effect of the merchant’s negligence after it becomes apparent to him or in the exercise of ordinary care he should have learned of it. He must make use of all his senses in a reasonable measure amounting to ordinary care in discovering and avoiding those things that might cause hurt to him.” (Citations and punctuation omitted; emphasis supplied.) Alterman Foods v. Ligon, 246 Ga. 620, 623 (272 SE2d 327) (1980).

We assume, without deciding, that Winn Dixie had constructive knowledge of the hazard in question. However, if a plaintiff is unable to prove either element of the Alterman test, a failure of proof results. Smith v. Wal-Mart Stores, 199 Ga. App. 808, 810 (406 SE2d 234) (1991). In this case, the evidence demands a finding that Carroll failed to exercise ordinary care for her own safety. She acknowledged in her deposition testimony that the unidentified foreign substance on the floor was visible “if you stood there and looked at it,” that she did not look down at the floor as she traveled the same path three times, and that nothing distracted her or diverted her attention.

Carroll contends in her affidavit that her view of the floor was obstructed by a display rack, and that her attention was diverted by that same rack. However, if on motion for summary judgment a respondent’s affidavit and deposition testimony are in unexplained conflict, the contradictory testimony is construed against the respondent. Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27, 28 (1); (2) (343 SE2d 680) (1986). On her deposition, Carroll testified that the display rack did not obstruct her view of the floor and that she was returning to her shopping cart after obtaining her purchase from the display rack and was not distracted by anything at the time of her fall. Moreover, a product on store shelves does not in itself constitute a distraction. Riggs v. Great Atlantic &c. Tea Co., 205 Ga. App. 608, 610 (423 SE2d 8) (1992). Carroll’s deposition testimony “is fatal in this case.” Jester v. Ingles Market, 206 Ga. App. 327, 329 (425 SE2d 323) (1992). There is no remaining disputed issue of material fact, and the trial court erred in denying Winn Dixie’s motion for summary judgment.

Decided February 4, 1994

Reconsideration denied March 1, 1994

Young, Clyatt, Turner, Thagard & Hoffman, Daniel C. Hoffman, Sherry S. Harrell, for appellant.

Kunes & Kunes, G. Gerald Kunes, for appellee.

Judgment reversed.

Beasley, P. J., and Cooper, J., concur.


text:
    A93A2559.
    ROSSEE OIL COMPANY, INC. v. BELLSOUTH TELECOMMUNICATIONS, INC.
    (441 SE2d 464)
   McMurray, Presiding Judge.

Rossee Oil Company, Inc. (“Rossee”) brought an action against BellSouth Telecommunications, Inc. (“BellSouth”), alleging that Bell-South entered its property without authority and buried telephone cable; that BellSouth’s wilful and wanton trespass warrants exemplary damages and that BellSouth’s bad faith authorizes attorney fees and expenses of litigation. BellSouth moved for summary judgment on Rossee’s claims for punitive damages, attorney fees and expenses of litigation, arguing that Rossee is entitled to only such damages as would be authorized in a condemnation proceeding; that punitive damages and expenses of litigation are not authorized where a public service company encroaches upon land for the good of the public and that “no independent ground for punitive damages exists [because Rossee failed to] prove by clear and convincing evidence that [Bell-South’s] actions showed willful misconduct, malice, fraud, wantonness, oppression, or that entire want of care which would raise the presumption of conscious indifference to consequences.”

In support of BellSouth’s motion for summary judgment, Mitchell J. Anderson deposed that he is the BellSouth engineer responsible for placement of telephone cable on Rossee’s property and that he was “under the belief that the DOT right-of-way encompassed the property upon which [BellSouth’s] cable was to be located ...” because “the DOT representative informed me that there would be no conflicts at that location and that it would be fine for us to relocate there.” In opposition, M. S. Rainey deposed that he is the president of Rossee; that BellSouth did not have permission to bury cable on Rossee’s property; that he had no knowledge of BellSouth’s activities on Rossee’s property until at least eight days (April 19, 1991) after burial of the cable was complete; that Mitchell J. Anderson then assured him that the cable would be removed from Rossee’s property and that BellSouth failed to honor this assurance.

The trial court granted BellSouth’s motion for summary judgment with regard to punitive damages, attorney fees and expenses of litigation. This appeal followed. Held:

In Oglethorpe Power Corp. v. Sheriff, 210 Ga. App. 299 (436 SE2d 14), this Court affirmed that punitive damages are available in an action against a public utility corporation for intentional conversion and trespass to realty. Id. at 302 (5), supra, certiorari denied by the Supreme Court of the State of Georgia (Case No. S94C0046, decided December 3, 1993). We find no authority precluding such damages against a public service company such as BellSouth where there exists clear and convincing evidence from which a jury could find that BellSouth’s actions in committing the intentional tort showed one or more of the criteria for the award of punitive damages as stated in OCGA § 51-12-5.1 (b), “particularly ‘that entire want of care which would raise the presumption of conscious indifference to consequences.’ ” Oglethorpe Power Corp. v. Sheriff, 210 Ga. App. 299, 301 (4a), supra. In the case sub judice, Mitchell J. Anderson’s explanation as to why he ordered the burial of cable over Rossee’s property, i.e., because “the DOT representative informed me that there would be no conflicts at that location and that it would be fine for us to relocate there,” does not negate genuine issues of material fact regarding Bell-South’s entire want of care in securing actual authority for placement of cable over Rossee’s property. See Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474). Consequently, the trial court erred in granting summary judgment in favor of BellSouth on Rossee’s claim for punitive damages. The trial court also erred in granting summary judgment as to the issues of attorney fees and expenses of litigation. “ ‘Questions of bad faith, stubborn litigiousness, and unnecessary expense, under OCGA § 13-6-11, are generally questions for the factfinder.’ Manderson & Assoc. v. Gore, 193 Ga. App. 723, 735 (9) (389 SE2d 251). . . . Additionally, a legitimate award of damages for an intentional tort, such as trespass or intentional conversion, generally will support a claim for expenses under OCGA § 13-6-11 ‘ “under the theory that the intention evokes that ‘bad faith’ necessary for recovery under” ’ the statute. Wisenbaker v. Warren, 196 Ga. App. 551, 552 (2) (396 SE2d 528).” Oglethorpe Power Corp. v. Sheriff, 210 Ga. App. 299 (3), 300, supra.

Decided February 14, 1994

Reconsideration denied March 1, 1994.

Martin L. Fierman, for appellant.

Rhona E. Reynolds, for appellee.

Judgment reversed.

Johnson and Blackburn, JJ., concur.

       Based on an interrogatory response that a representative of Rossee visited the subject property “2-3 times each week [for a] general inspection” during the month BellSouth buried cable on Rossee’s property (sometime between April 1 and 11, 1991), BellSouth states that M. S. Rainey knew that it was installing cable on Rossee’s property at the time the cable was being planted. This conclusion is not supported by the above admission and is contradicted in the affidavit of M. S, Rainey.