author: Miller, Judge.

text:
    A01A0191.
    McGREGOR v. BOARD OF REGENTS OF THE UNIVERSITY SYSTEM OF GEORGIA.
    (548 SE2d 116)
   Miller, Judge.

In Blondell McGregor’s lease of certain premises from Nations-Bank of Georgia, he agreed that if all the premises were taken in any manner for public use, the lease would immediately terminate, the rent would be apportioned as of the date of termination, and he would have no claim against NationsBank or the condemning authority for the value of the unexpired term of the lease or otherwise. He further agreed that all compensation paid upon the taking would belong to NationsBank without any participation therein by him. The question on appeal is whether this language waived McGregor’s right to seek compensation from a condemnor upon the condemnor’s taking the leased premises for public use. We hold it did and therefore affirm summary judgment in favor of the condemnor.

The undisputed facts show that in 1995 McGregor leased a portion of a building in downtown Atlanta to operate a restaurant. The lease as amended was to expire in November 2000. With regard to the possibility of a public taking, the lease provided:

In the event that all of the Premises shall be condemned or taken in any manner for any public or quasi-public use, this Lease shall forthwith cease and terminate as of the date of vesting title. ... If this Lease is terminated in accordance with the provisions of this paragraph, then the rent shall be apportioned and adjusted as of the date of termination and Lessee shall have no claim against Lessor or the condemning authority for the value of the unexpired term of this Lease or otherwise. All compensation awarded or paid upon a total or partial taking of the Premises or the Building or any part thereof shall belong to and be the property of Lessor without any participation therein by Lessee or by an Agent, if any.

In September 1998 the Board of Regents of the University System of Georgia, a governmental authority with the power of eminent domain, notified McGregor that it intended to acquire the entire building in ten days and that therefore his lease would terminate as of that time. Although no condemnation proceedings were filed, the parties agree that the Board then acquired the building for public purposes under threat of condemnation. Thus, in the language of the lease and as understood by the parties, the property was “taken in any manner” for a public use.

McGregor filed an inverse condemnation action against the Board, claiming that the Board was required to pay him just and adequate compensation for his leasehold interests. Arguing that under the lease McGregor had assigned or waived any rights to compensation, the Board successfully moved for summary judgment, which McGregor appeals.

This Court diligently protects the sacred right of property owners to just and adequate compensation before private property is taken or damaged for public purposes. And a leasehold interest, including a usufruct, is a property right that cannot be taken for public use without first paying just and adequate compensation. Nevertheless, “[a]bsent a public policy interest, contracting parties are free to contract to waive numerous and substantial rights. . . ” Thus, a lessee may in the lease assign away or waive its right to just and adequate compensation in any type of condemnation proceedings, which assignment or waiver we will enforce.

Here McGregor expressly agreed that, in the event the lease was terminated by condemnation, the lessee would have “no claim against. . . the condemning authority” for compensation of any loss to the value of the leasehold arising out of the taking. He further agreed that any proceeds paid for a public taking of the building would be the property of NationsBank without participation by McGregor, thus effectively assigning to NationsBank any condemnation compensation possibly due him. He thus contracted away his constitutional right to compensation.

Decided April 30, 2001

Reconsideration denied May 16, 2001

Chamberlain, Hrdlicka, White, Williams & Martin, Richard N. Hubert, for appellant.

Thurbert E. Baker, Attorney General, R. O. Lerer, Senior Assistant Attorney General, Zachary & Segraves, Kenneth L. Levy, Kenneth W. Carpenter, for appellee.

McGregor cites three cases for the proposition that a lessee may pursue an action against the condemning authority despite similar lease language. Franco’s Pizza &c. v. Dept. of Transp. and Dept. of Transp. v. Calfee Co. of Dalton are distinguishable in that, although in both cases the lessee waived its right to seek compensation from the lessor, in neither case did the lessee purport to waive its right to seek compensation from the condemning authority. In fact, in Franco’s Pizza that right was expressly preserved. Simmerman v. Dept. of Transp. is distinguishable in that it did not address the lessee’s right to pursue an action against the condemnor. Rather, Simmerman focused on the right of the lessee to sue the lessor. Since the lessee’s assignment of the condemnation proceeds to the lessor contained an express acknowledgment of the lessee’s right to pursue an action against the lessor for the lessee’s portion of the proceeds, Simmerman allowed the lessee to receive a portion of the award given the lessor.

Here the contract language is clear that (1) McGregor waived his right to seek condemnation proceeds from the condemnor and (2) he assigned to NationsBank any condemnation proceeds paid for his leasehold interests. Thus, the court correctly granted summary judgment in favor of the Board.

Judgment affirmed.

Andrews, P. J., and Eldridge, J., concur.

       OCGA § 20-3-58 (a).

       Ga. Const, of 1983, Art. I, Sec. Ill, Par. I; Wilson v. State Hwy. Dept., 85 Ga. App. 907, 910 (70 SE2d 535) (1952); see Whipple v. County of Houston, 214 Ga. 532, 538-539 (2) (105 SE2d 898) (1958) (this imperative duty of the State protects the most humble person against tyrannical abuse of the State’s powers).

        Franco’s Pizza &c. v. Dept. of Transp., 178 Ga. App. 331 (1) (343 SE2d 123) (1986).

       (Citations and punctuation omitted.) Imaging Systems Intl. v. Magnetic Resonance Plus, 227 Ga. App. 641, 644 (1) (490 SE2d 124) (1997).

        Henson v. Dept. of Transp., 160 Ga. App. 521, 522 (1) (287 SE2d 299) (1981) (whole court).

       Id. (“ ‘The form of an assignment of a chose in action is immaterial.’ ”) (citations omitted).

       See Dept. of Transp. v. Calfee Co. of Dalton, 202 Ga. App. 299 (414 SE2d 268) (1991) (whole court); Franco’s Pizza, supra, 178 Ga. App. at 331; Simmerman v. Dept. of Transp., 167 Ga. App. 383, 384-385 (1) (307 SE2d 4) (1983).

       Supra, 178 Ga. App. at 331-332 (1).

       Supra, 202 Ga. App. at 300-301 (1).

       Id.; Franco’s Pizza, supra, 178 Ga. App. at 331-332 (1).

       Supra, 178 Ga. App. at 332 (1).

       Supra, 167 Ga. App. at 384-387 (1).

       Id. at 387 (1).

       See Henson, supra, 160 Ga. App. at 522 (1).


source: Caselaw Access Project

license: Public Domain

text:
    A01A0717.
    BECKETT v. MONROE.
    (548 SE2d 131)
   Miller, Judge.

James Monroe’s vehicle rear-ended that of Virginia Beckett, damaging her vehicle and allegedly injuring her. In the trial of Beckett’s tort suit against Monroe, the jury found for Monroe, apparently concluding that Beckett’s negligence equaled or exceeded any negligence of Monroe. Beckett appeals, enumerating as error the admission of a police diagram and the denial of her motion for new trial. We affirm. Monroe’s testimony that the diagram was accurate authorized its admission, and under the “any evidence” standard of review, the court did not abuse its discretion in denying the motion for new trial.

Construed in favor of the verdict, the evidence showed that on a clear afternoon, Beckett stopped at a yield sign as she was waiting to turn right from an intersecting street onto Bobby Jones Boulevard. Monroe waited behind her. A traffic light also monitored traffic at this intersection. After the light changed to green, Beckett proceeded forward past the yield sign about one or two car lengths until she was driving parallel to Bobby Jones Boulevard in the access lane. As Monroe glanced over his left shoulder to ensure no cars were coming, he accelerated, when suddenly Beckett stopped her vehicle to recheck traffic (traffic was clear) proceeding on Bobby Jones Boulevard. Monroe’s vehicle struck Beckett’s vehicle from behind, allegedly causing severe injury to Beckett’s shoulder.

1. Beckett first complains about the admission of a police diagram of the accident. At trial she testified that at the time of the collision, she was not yet completely past the yield sign and was at an angle, not parallel to, the access road to Bobby Jones Boulevard. Monroe testified that a police diagram of the accident accurately portrayed the position of the cars on the roadway at the time of the collision, which showed that Beckett was past the yield sign and completely in the access lane and parallel to Bobby Jones Boulevard. When Monroe offered the diagram into evidence, Beckett objected, arguing that it was inadmissible as written hearsay. The court admitted the diagram.

Citing Fine v. APAC-Ga., Beckett argues that the diagram was inadmissible as a police report containing hearsay statements, opinion evidence, and conclusions. Beckett misapprehends the document. It is not a police report with statements and opinions; it is a diagram. Albeit drawn by a police officer, the diagram was described by Monroe as an accurate depiction of the accident. Diagrams “are admissible simply on the basis of testimony that they are substantially accurate representations of what the witness is endeavoring to describe.” “ [I] t is not essential that the witness testifying to the correctness of the drawing ... be the one who made it.” Thus, a sketch or diagram of an auto accident is admissible through a witness who testifies the drawing is substantially accurate, even though the drawing was not prepared by the witness or the author is unknown.

Beckett contends that the officer’s name, position, and badge number at the bottom of the diagram convert it from a diagram depicting Monroe’s testimony to a document recounting the nontestifying officer’s opinion. Merely showing the author’s name does not destroy the admissibility or otherwise change the nature of the diagram. Moreover, nothing on the diagram here indicates whether the officer felt that this was how the accident occurred or whether he was just recounting what others had told him. Since we have consistently held that diagrams drawn by someone else (whether identified or not) may be admitted through a witness who confirms the accuracy of the drawing, we hold that the court did not err in admitting the diagram here.

2. Beckett urges that the court erred in denying her motion for new trial. She contends that since at the time of the collision Monroe was looking over his shoulder, the evidence weighed heavily in favor of a plaintiff’s verdict. “The grant or denial of a motion for new trial is a matter within the sound discretion of the trial court and will not be disturbed if there is any evidence to authorize it.”

Rear-end collision cases are particularly well suited for jury determination. The issues of liability, degree of liability, or lack of liability on the part of any of the drivers involved should be resolved by a jury and not by trial and appellate judges, except in those rare circumstances when a party admits liability or the facts are undisputed. Atlanta Coca-Cola Bottling Co. v. Jones explains:

All drivers of vehicles using the highways are held to the exercise of due care. A leading vehicle has no absolute legal position superior to that of one following. Each driver must exercise ordinary care in the situation in which he finds himself. The driver of the leading vehicle must exercise ordinary care not to stop, slow up, nor swerve from his course without adequate warning to following vehicles of his intention so to do. The driver of the following vehicle, in his turn, must exercise ordinary care to avoid collision with vehicles, both those in front and those behind him. Just how close to a vehicle in the lead a following vehicle, ought, in the exercise of ordinary care, be driven, just what precautions a driver of such a vehicle must in the exercise of ordinary care take to avoid colliding with a leading vehicle which slows, stops, or swerves in front of him, just what signals or warnings the driver of a leading vehicle must, in the exercise of due care, give before stopping or slowing up of his intention to do so, may not be laid down in any hard and fast or general rule. In each case except when reasonable minds may not differ, what due care required, and whether it was exercised, is for the jury.

Decided April 30, 2001

Reconsideration denied May 16,2001

Elwyn G. Beddingfield, Douglas M. Nelson, for appellant.

Fulcher, Hagler, Reed, Hanks & Harper, David P. Dekle, for appellee.

Under Georgia law, a plaintiff whose negligence is equal to or greater than the defendant’s is not entitled to recovery. Here a jury could have found that Beckett’s sudden stopping in the access lane on this clear day, after having passed the yield sign and while the light was green and no traffic was proceeding, constituted negligence that equaled or exceeded any negligence of Monroe. Or the jury could have found that Monroe was not negligent. The court did not abuse its discretion in denying Beckett’s motion for new trial.

Judgment affirmed.

Andrews, P. J., and Eldridge, J., concur.

       192 Ga. App. 895, 897 (1) (386 SE2d 692) (1989).

       (Citation and punctuation omitted.) J. B. Hunt Transport v. Brown, 236 Ga. App. 634, 636 (1) (512 SE2d 34) (1999).

       (Citations omitted.) Clarke County School Dist. v. Madden, 99 Ga. App. 670, 677 (2) (110 SE2d 47) (1959); see Bagley v. City of Alma, 178 Ga. App. 474 (1) (343 SE2d 740) (1986) (“the testimony proving the correctness of the map need not come from the preparer of the map so long as the witness has had an opportunity to know whether it is correct. [Cit.]”).

        Rouse v. Fussell, 106 Ga. App. 259, 263 (5) (126 SE2d 830) (1962); Casteel v. Anderson, 89 Ga. App. 68, 71 (1) (78 SE2d 831) (1953). Cf. Fountain v. DeKalb County, 154 Ga. App. 302, 304 (3) (267 SE2d 903) (1980) (“A trial court has discretion as to admissibility of a diagram or sketch....”).

       (Citations and punctuation omitted.) Glenridge Unit Owners Assn. v. Felton, 183 Ga. App. 858, 859 (3) (360 SE2d 418) (1987).

        Atlanta Coca-Cola Bottling Co. v. Jones, 236 Ga. 448, 450-451 (224 SE2d 25) (1976); accord Leonard v. Dixon, 246 Ga. App. 83, 84 (1) (538 SE2d 781) (2000).

       Supra, 236 Ga. at 450.

       (Citations and punctuation omitted.) Id.

        Bridges Farms, Inc. v. Blue, 267 Ga. 505 (480 SE2d 598) (1997); see Jones v. Aired, 43 Ga. App. 312 (158 SE 802) (1931).

       Compare Thomas v. Kite, 206 Ga. App. 80 (1) (424 SE2d 305) (1992) (court should have granted plaintiff directed verdict where there was no evidence of any negligence by driver of plaintiff’s vehicle nor evidence excusing defendant’s actions, who admitted she took her eyes off the road to glance at a person selling flowers).


text:
    A01A0806, A01A0807.
    SCOTT v. BATTLE; and vice versa.
    (548 SE2d 124)
   Miller, Judge.

Plaintiff Lee Scott initiated this case by petitioning for a writ of possession, alleging that defendant Donald E. Battle d/b/a Divine Faith Outreach Ministries (also known as Divine Faith Ministries) failed to pay $36,000 in rent. Battle answered and counterclaimed, first for attorney fees and then for fraudulent inducement, unjust enrichment, breach of contract, conversion of personalty, and punitive damages, based on allegations that Scott misrepresented to Battle that the premises could be used in part as a day-care facility but that, after Battle spent $100,000 to clean and improve the property, Scott refused to cooperate and sign necessary documents to obtain a county permit and converted certain personalty left on the premises when Battle vacated.

By consent, a writ of possession was issued and the premises were returned to Scott, while issues of past due rent and those raised in the counterclaim were tried before a jury. The jury found for Battle against Scott on the claim for rent and further found for Battle against Scott on the counterclaim, awarding Battle $75,000. In a special interrogatory, the jury found by clear and convincing evidence that Scott engaged in “willful misconduct, malice, fraud, wantonness, oppression, or that entire want of care [raising] the presumption of conscious indifference to the consequences [,]” and imposed punitive damages in the amount of $571,000. The trial court denied Scott’s motions for judgment notwithstanding the verdict and for new trial but reduced the punitive damage award to $250,000.

In Case No. A01A0806, Scott enumerates the denial of his motion for new trial, arguing that Battle’s counterclaim was supported only by illegally admitted evidence and that the punitive damage award was unauthorized. Scott further contends the trial court erroneously construed the lease agreement and so erred in admitting parol evidence. In Case No. A01A0807, Battle objects to the final judgment reducing the jury’s punitive damage award to $250,000. We affirm in each case.

Viewed in the light most favorable to Battle, who obtained the verdicts, the evidence showed the following: Battle as Buyer and Scott as Owner signed a one-page document containing Battle’s offer (subject to a financing contingency) to purchase Scott’s real property on Tara Boulevard in Jonesboro for $1,358,000. The document recites that a $9,000 “Deposit herewith paid” was made, yielding $1,349,000 as the “Mortgage Amount.” The document further provides: “Borrower [sic] shall lease the . . . property for $9,000 per month for a period of two years [,]” during which time the purchase could be completed. “This offer [was] also subject to [additional] stipulations[,]” such as “Buyer/Tenant” shall have possession within “60 days of signing this agreement,” and Owner agrees that Buyer may immediately open a restaurant and use unoccupied office space “upon the signing of this agreement.”

Scott admitted that this document was merely an “ ‘outline agreement of [the parties’] understanding, and [that they] were supposed to sign a more detailed lease and sales contract at a later date,’ ” but never did. Battle testified that the complete agreement, never reduced to writing, contemplated that the premises would be used for a 24-hour day-care center that would generate $35,000 in monthly income. Also a teen club was envisioned. Scott seemed enthusiastic over the prospect of the property being cleaned and renovated to house Battle’s Outreach program. Volunteers performed substantial renovations of the building, clearing out truck loads of accumulated junk and adding ceramic tile and plush carpet to the floors, new seating in a restaurant area, new paint on the walls, new wiring and properly grounded outlets inspected by the fire marshal, and installed a crash door on every outlet. Also new sprinkler heads were installed at the direction of the fire marshal. After Battle refused a demand that he share the proceeds of the Divine Ministries with Scott, however, Scott as owner of the premises refused to cooperate with Battle to obtain the necessary loans and permits to complete the needed renovations. This in turn deprived Battle of substantial anticipated revenues, and he stopped trying to pay the rent. By that time, Battle’s improvements to the property had added $300,000 in market value.

Case No. A01A0806

1. The third enumeration will be considered first. Here, Scott contends the trial court erred in admitting parol evidence to contradict and alter the terms of the written contract.

“Parol contemporaneous evidence is generally inadmissible to contradict or vary the terms of a valid written instrument.” Parol evidence is admissible, however, to show a subsequent agreement; to show the contract was obtained by fraud; to show the complete agreement when the writing is not the entire contract between the parties and so the contract is partly in writing and partly in parol; and to show a failure of consideration. And “[w]hen a contract is not wholly in writing, but is partly in writing and partly in parol, the entire contract is considered as one in parol.”

Scott admitted under oath that the writing at issue did not constitute the final agreement. There is no merger clause to this offer/ agreement. And the writing does not specify a date by which the two-year lease must commence nor expressly commit Scott to lease the premises. Even assuming, without deciding, that the ambiguous writing constituted an enforceable agreement, the trial court did not err in permitting Battle to testify that he and Scott subsequently agreed on additional terms such as Battle cleaning and improving the premises so he, as the sole tenant, could use the facility for income-generating day care, which purpose Scott later maliciously undermined.

2. The first enumeration contends the trial court abused its discretion in denying Scott’s motion for new trial. Scott argues that Battle’s alleged interest in the improvements made to the property was proven solely with illegally admitted evidence. Specifically, he argues that no damages were authorized by Battle’s counterclaim because all the monies expended and work donated came from Divine Faith Ministries, Inc., a separate legal entity from Battle’s trade names and not a party to this action.

Battle testified he owned the improvements and attempted to show his interest in the donated expenditures and property with a resolution of the Board of Directors of Divine Faith Ministries, Inc. authorizing loans to Battle’s Outreach program (an unincorporated entity) which were to be repaid over three years. This resolution was purportedly executed by Battle and other Board members on July 20, 1998, in the presence of Brenda F. Jones, Notary Public. Scott challenged the authenticity of this document on the basis that Jones was not authorized to serve as a lawful Notary Public in Clayton County until January 1999. “[T]he Georgia rule favors admissibility. If the relevancy of the offered evidence is in doubt, it should be admitted and sent to the jury under proper instructions. This is true no matter how slight the probative value, and even though it is prejudicial to the opposing party.”

Battle himself confirmed that the document accurately represented what took place at a Divine Faith Ministries, Inc. board meeting on July 20, 1998, and that it was not prepared at a later date. Consequently, Scott’s circumstantial challenge to the document’s authenticity did not deprive it of all probative value and the trial court correctly admitted it, for whatever weight the jury chose to give it. The $75,000 compensatory damages awarded by the jury was within the range of the evidence and appears to be calculated to recompense Battle only for his special interest in the property, consistent with the benefit unjustly conferred on Scott. The trial court did not abuse its discretion in refusing a new trial as to Battle’s counterclaim.

3. The jury awarded Battle $571,000 in punitive damages, which sum represented the total damages demanded by Scott in a separate suit against Battle in superior court. In framing a judgment, the trial court reduced the award to the $250,000 limit imposed by OCGA § 51-12-5.1 (g). Scott nevertheless contends the trial court erred in refusing a new trial regarding punitive damages, arguing the jury’s award “was manifestly based on undue passion and prejudice . . . and was patently awarded for the improper purpose of compensating Battle.”

In Georgia, the purpose of punitive damages is to deter the repetition of reprehensible conduct by the defendant, and they are not awarded as compensation to a plaintiff. Subject to OCGA § 51-12-5.1 (g), the amount of punitive damages to be awarded (if any) is determined according to the enlightened conscience of a fair and impartial jury. “There is no other measure of damages for such a case.” Here, the jury’s award, matching the amount Scott demanded for damage Battle allegedly caused the property, is rationally related to the legitimate goal of depriving the tortfeasor of the profitability of his wrongdoing. Under the circumstances, the trial court did not abuse its discretion in refusing to overrule the jury’s award of punitive damages in its entirety.

Case No. A01A0807

4. In two related enumerations of error, Battle contends the trial court erred in reducing the jury’s punitive damage award to the $250,000 authorized by OCGA § 51-12-5.1 (g). We disagree.

Unless the claim involves product liability or unless there is a finding that the defendant acted (or failed to act) with a specific intent to cause harm, OCGA § 51-12-5.1 (g) provides that the amount of punitive damages which may be awarded “shall be limited to a maximum of $250,000.00.” In McDaniel v. Elliott, the Supreme Court of Georgia adopted a “bright line rule requiring a party to request both a charge on specific intent to cause harm and a separate finding of specific intent to cause harm by the trier of fact in order to avoid the [OCGA § 51-12-5.1 (g)] cap on punitive damages.”

Battle’s portion of the pre-trial order does not request any special interrogatories with respect to punitive damages. And while the trial court’s verdict form includes the special interrogatory on whether plaintiff (Scott) acted with wilful misconduct, malice, fraud, wantonness, oppression, et cetera, so as to authorize the imposition of punitive damages in some amount, it does not include a special interrogatory on whether there was specific intent to cause harm. Battle concedes he did not request such an interrogatory nor any jury instruction on specific intent to cause harm. Nevertheless, he contends that Scott procedurally waived any right to request a reduction in punitive damages because he failed to request a special interrogatory or a jury charge on specific intent to cause harm, because he failed to object to the charge as given and to the form of the verdict, and because he did not raise this issue until a post-trial hearing on a motion for new trial.

(a) Punitive damages in an amount greater than $250,000 are not authorized under Georgia law unless and until certain conditions are met. As the claimant for punitive damages, Battle was the party who bore the onus to meet the procedural requirements, for it was he who was attempting to alter the status quo. Therefore, Battle had the responsibility to request appropriate special interrogatories and jury instructions tailored to the necessary finding of specific intent to cause harm. Moreover, Scott did not waive any valid exception to a verdict arguably in excess of that authorized by law by failing to object to the court’s proposed verdict form or to the verdict itself immediately upon its return. Such an exception is timely if raised before the entry of judgment or in any timely post-judgment motion, including a motion for new trial.

Decided April 30, 2001

Reconsideration denied May 16, 2001

King & Spalding, Paul J. Murphy, Ranee L. Craft, Joseph R. Baker, for appellant.

Rowen & Klonoski, Sharon L. Rowen, for appellee.

(b) It is undisputed that Battle failed to fulfill the requirements of the bright line rule requiring both a charge on specific intent to cause harm and a separate finding of specific intent to cause harm by the trier of fact in order to avoid the $250,000 cap on punitive damages. In framing its judgment, the trial court correctly reduced the award to the maximum authorized by OCGA § 51-12-5.1 (g).

Judgments affirmed.

Andrews, P. J., and Eldridge, J., concur.

       (Emphasis supplied.)

       OCGA § 24-6-1.

        Covington v. Brewer, 101 Ga. App. 724, 729-730 (3) (115 SE2d 368) (1960).

        Crooker v. Hamilton, 3 Ga. App. 190, hn. 4 (59 SE 722) (1907).

        Boynton v. Twitty, 53 Ga. 214, 218-219 (1874).

       (Citations omitted.) Shutt & Co. v. Andrews, 47 Ga. App. 530, 531 (2) (171 SE 219) (1933). Accord Plumlee v. Davis, 221 Ga. App. 848, 852 (3) (473 SE2d 510) (1996).

       (Citations and punctuation omitted.) Patton v. Smith, 119 Ga. App. 664, 665 (2) (168 SE2d 627) (1969).

       Cf. Ford Motor Co. v. Hanley, 128 Ga. App. 311, 316 (4) (196 SE2d 454) (1973).

       See Witt v. Nesar, 145 Ga. 674, 676 (89 SE 747) (1916).

       See Zampatti v. Tradebank Intl. &c., 235 Ga. App. 333, 340 (5) (508 SE2d 750) (1998) (measure of damages under quantum meruit or unjust enrichment is based on the value of the benefit conferred and not upon the cost to render the service).

        Hosp. Auth. of Gwinnett County v. Jones, 261 Ga. 613, 614 (1) (409 SE2d 501) (1991).

       OCGA § 51-12-5.1 (c).

       For any tort action not involving product liability or a specific intent to cause harm, “the amount [of punitive damages] which may be awarded . . . shall be limited to a maximum of $250,000.00.” OCGA § 51-12-5.1 (g).

        Roberts v. Chapman, 228 Ga. App. 365, 367 (3) (492 SE2d 244) (1997).

        Central R. & Banking Co. v. Roberts, 91 Ga. 513, 519 (6) (18 SE 315) (1893).

       See Holman v. Burgess, 199 Ga. App. 61, 63 (404 SE2d 144) (1991).

       269 Ga. 262 (497 SE2d 786) (1998).

       (Emphasis supplied.) Id. at 265 (3).

       Id. at 263-264 (1).

       See, e.g., Brundage v. Wilkins, 121 Ga. App. 652, 654 (7) (175 SE2d 108) (1970) (holding: “defendant, as a claimant [via counterclaim], has the same burden as a plaintiff”).

       See OCGA § 51-12-12 (b).


author: Andrews, Presiding Judge.

text:
    A01A0353.
    DEAN v. CITY OF JESUP et al.
    (549 SE2d 466)
   Andrews, Presiding Judge.

Roscoe Dean, Jr. appeals from the trial court’s dismissal of his request for declaratory judgment. The court dismissed the declaratory judgment action after finding that all issues raised by the request were moot. We agree and affirm.

This case arose when the City of Jesup granted property owners’ requests that the City abandon its easement rights to several streets and alleys in one area of town. The adjacent property owners made the request because they wanted to put together a parcel of land for sale to a developer. The City placed a value of $20 on its easement rights in the property, and Dean filed the instant complaint for declaratory judgment and injunctive relief, alleging that the $20 value the City placed on the easements was less than their true value and, therefore, gave the adjacent property owners a gratuity in violation of the Georgia Constitution. Dean filed the complaint and request for a temporary injunction on August 4, 2000. The court issued a rule nisi setting a hearing for August 31, 2000, but did not grant Dean’s ex parte request for a temporary restraining order. Before the hearing, the City officially abandoned the easements and issued the quitclaim deeds.

At the hearing, the City argued that because the easements had already been abandoned and the quitclaim deeds executed, recorded and delivered, the issues raised in the declaratory judgment action were moot. The trial court agreed, stating that a declaratory judgment would serve no purpose and what Dean was actually seeking was to have the conveyances set aside as improper, and that could not be done because the property owners, as indispensable parties, were not before the court. The court granted the City’s motion to dismiss, and this appeal followed.

1. The trial court correctly granted the City’s motion to dismiss because the issues raised in the declaratory judgment action were moot.

The Declaratory Judgment Act provides a means by which a superior court simply declares the rights of the parties or expresses its opinion on a question of law, without ordering anything to be done. The purpose of the Act is to settle and afford relief from uncertainty and insecurity with respect to rights, status, and other legal relations. OCGA § 9-4-1.

Fulton County v. Fulton County School Dist., 246 Ga. App. 631, 632 (542 SE2d 507) (2000). “[I]f an action for a declaration raises issues which are . . . moot, the Georgia statute is not applicable, and the action must be dismissed as decisively as would be any other action presenting the same non-justiciable issues.” In the Interest of I. B., 219 Ga. App. 268, 269 (464 SE2d 865) (1995), citing Felton v. Chandler, 75 Ga. App. 354, 361 (43 SE2d 742) (1947). “The object of the declaratory judgment is to permit determination of a controversy before obligations are repudiated or rights are violated.” Fulton County, supra at 632-633. Likewise, “[a] declaratory judgment will not be rendered to give an advisory opinion.” Id.

Here, the trial court correctly determined that the declaratory judgment action could no longer afford Dean the relief he sought. It was undisputed that the City had already abandoned the easements and executed, recorded and delivered quitclaim deeds. Therefore, any ruling by the trial court on the petition for declaratory judgment would have been purely advisory as there were no justiciable controversies remaining. Fulton County, supra.

2. Likewise, Dean’s argument that the trial court erred in not granting the temporary restraining order and in allowing the mayor and city commissioners to commit an ultra vires act also presents no issue for us to review on appeal. “If an appellant or cross-appellant will benefit by reversal of a case, his appeal is not moot. If, however, reversal of a trial court’s judgment is of no practical benefit to the parties, any issues raised on appeal are rendered moot.” (Citations and punctuation omitted.) McWhorter v. Greene, 221 Ga. App. 590, 591 (472 SE2d 135) (1996). Further, “[t]his court will not retain jurisdiction of a moot case to consider basic legal questions even though plaintiff! ] might derive some benefit in future litigation from a favorable adjudication of the question.” (Punctuation omitted.) Id., citing Berrie v. Baucknecht, 224 Ga. 432, 433 (162 SE2d 317) (1968).

Decided May 16, 2001.

James E. Stein, for appellant.

J. Alvin Leaphart, for appellees.

3. Alternatively, Dean contends the trial court should have allowed him to join the property owners as indispensable parties rather than dismissing the declaratory judgment action. We find no merit to this enumeration because Dean never requested that the court allow him to amend his complaint or join any other parties. Issues not raised in the court below may not be raised for the first time on appeal. Hayes v. Collins, 245 Ga. App. 704 (538 SE2d 785) (2000).

Judgment affirmed.

Eldridge and Miller, JJ, concur.


author: Ruffin, Judge.

text:
    A01A0383.
    ZEEMAN v. THE STATE.
    (549 SE2d 442)
   Ruffin, Judge.

Following a bench trial, Noah Zeeman was convicted of possessing cocaine in violation of the Georgia Controlled Substances Act. On appeal, he challenges the trial court’s denial of his motion to suppress evidence. For reasons that follow, we affirm.

In reviewing the trial court’s decision on a motion to suppress, we construe the evidence “most favorably to uphold the findings and judgment of the trial court; the trial court’s findings on disputed facts and credibility are adopted unless they are clearly erroneous and will not be disturbed if there is any evidence to support them.”

Viewed in this manner, the evidence shows that two undercover police officers, Massey and Jones, arrested Zeeman early one morning at a gas station. Prior to the arrest, they observed Zeeman walking away from a car at the gas pumps toward the station’s convenience store with an object in his hand. As Zeeman approached the store, he stopped another individual, and, according to Massey, “there appeared to be some sort of transaction between the two.” Although the officers could not see exactly what transpired, Massey observed “some physical contact there between the two of them in a conversation.” Jones testified that the two men met, spoke briefly, and Zeeman seemed to reach toward the other man. Zeeman and the other individual then went in separate directions. Both officers suspected that Zeeman had been involved in a drug transaction.

The officers also noted that Zeeman appeared to be intoxicated. Massey stated that Zeeman “wasn’t walking well. He was in a wobbly state. When he was returning [to his car], I could see his eyes, which [were] [k]ind of like spacey looking. . . . Intoxicated, he appeared to be. . . . Very unstable looking in the eyes.” Jones similarly recalled that Zeeman “appeared to be intoxicated or on drugs.”

Because of the suspected drug transaction and Zeeman’s apparent intoxication, the officers decided to question him. Massey testified that he decided to approach Zeeman in part because he was concerned about Zeeman driving away from the gas station under the influence of alcohol or drugs. As Zeeman got into his car, Massey walked up, identified himself, and placed his hand on Zeeman’s still-open car door. Massey then looked down at the door’s inside handle and saw “three small ziplock type bags with some sort of white residue in them or light colored residue.”

Massey estimated that he has investigated hundreds or possibly over a thousand narcotics cases. In all cases in which he found a suspected controlled substance in this type bag, the substance turned out to be an illegal drug. Jones, who has handled several hundred drug cases, saw the bags after Massey seized them. He testified that cocaine is commonly found in small plastic bags similar to these.

After discovering the bags, Massey arrested Zeeman. He then searched Zeeman’s car and found two more bags with residue, a syringe “with some sort of liquid still in it,” a glass cylinder containing a metal fiber and burned residue, and a length of wire with burned residue on one end.

Zeeman moved to suppress the evidence found in his car, arguing that the officers had no grounds to detain him, arrest him, or search the car. Following an evidentiary hearing, the trial court denied the motion. It found that “the officers stopped [Zeeman] with reasonable, articulable suspicion and the resulting search of [Zeeman’s] car was legal.” We find no error in the trial court’s ruling.

1. A police officer may conduct a brief investigatory stop when, under the totality of the circumstances, the stop is “justified by some objective manifestation that the person stopped is, or is about to be, engaged in criminal activity.” The necessary “articulable suspicion that the law has been or is about to be violated is less than probable cause, but greater than mere caprice.” As our Supreme Court has noted,

[w]hat is necessary is a founded suspicion, some basis from which the court can determine that the detention was not arbitrary or harassing. Thus, in cases where there are some reasonable articulable grounds for suspicion, the state’s interest in the maintenance of community peace and security outweigh [s] the momentary inconvenience and indignity of investigatory detention.

On appeal, Zeeman argues that the officers’ “hunch” about a possible drug transaction could not justify the investigatory stop. Massey clearly testified, however, that the decision to approach Zeeman stemmed not only from the suspected drug deal, but also from Zeeman’s apparent intoxication. Massey explained that he did not want Zeeman to leave the area in his car because he thought Zeeman might “be under the influence of something.” Asked about the basis for the stop, Jones similarly mentioned the suspected drug transaction and the fact that Zeeman was “staggering very badly.” In Jones’ words,

[w]hen we saw him, it was obvious from his demeanor and everything in the parking lot that we thought we were witnessing a drug deal. Also, his behavior and his staggering and walking up to — I mean, it was not normal. ... It was not normal to me to see someone staggering like that in a parking lot. You may later find out they have a medical condition, but you find that out later.

Regardless of whether the suspected drug transaction could support a stop, therefore, the officers pointed to another reasonable basis for briefly detaining Zeeman. Both officers concluded from Zeeman’s appearance and demeanor that he might be under the influence of drugs or alcohol. They also saw him returning to his car at the gas pumps. These observations gave the officers specific and articulable grounds to believe that Zeeman was about to commit a crime by driving under the influence. Given the circumstances, a reasonable officer would be authorized to conduct a brief investigatory stop.

2. Following the lawful stop, Massey seized the three plastic bags found in plain view inside the car’s open door. On appeal, Zeeman argues that the plain view doctrine should not authorize such a seizure.

As we have previously determined, however, “Contraband lawfully found in plain view need not be ignored and can be seized.” The plain view doctrine permits “a warrantless search and seizure if. . . the agents are lawfully in position to obtain the view, the discovery is inadvertent, and the object viewed is immediately seen to be incriminating.” In this case, Massey was legally in a position to see the bags and discovered them inadvertently, simply by looking down at the door. The evidence also shows that he immediately viewed the bags and residue as incriminating, prompting him to arrest Zeeman without delay. According to Massey, in his experience, such residue in this type of bag is a controlled substance. Thus, the trial court did not err in finding that Massey properly seized the three bags.

3. We also find no error in the trial court’s refusal to suppress evidence seized during the subsequent search of Zeeman’s car. After Massey discovered the three bags in the car door handle, he placed Zeeman under arrest, then searched the car. A policeman who lawfully arrests a vehicle occupant “may, as a contemporaneous incident of that arrest, search the passenger compartment of that automobile . . . even after the arrestees are no longer in it.”

The three residue-coated plastic bags provided the officers probable cause to arrest Zeeman. Both testified about their significant experience in narcotics investigations and their familiarity with residue in small ziplock bags. Zeeman’s arrest was lawful. Massey, therefore, was authorized to search Zeeman’s car following the arrest.

Decided May 16, 2001.

William C. Head, for appellant.

Patrick H. Head, District Attorney, Dana J. Norman, David M. Hilts, Assistant District Attorneys, for appellee.

Judgment affirmed.

Johnson, P. J., and Ellington, J., concur.

       (Punctuation omitted.) Hines v. State, 214 Ga. App. 476, 477 (448 SE2d 226) (1994).

        Garmon v. State, 271 Ga. 673, 676 (2) (524 SE2d 211) (1999). The state argues that we need not consider whether the officers had a reasonable, articulable basis to briefly detain Zeeman. According to the state, this case involved a noncoercive, police-citizen encounter, rather than a detention or seizure raising Fourth Amendment concerns. See Voyles v. State, 237 Ga. App. 886-887 (1) (517 SE2d 113) (1999) (discussing difference between a noncoercive, police-citizen encounter and a brief detention). The trial court, however, addressed whether the officers “stopped [Zeeman] with reasonable, articulable suspicion,” presumably because it determined that the confrontation exceeded a noncoercive encounter.

       (Punctuation omitted.) Garmon, supra at 677 (2).

       (Citations and punctuation omitted.) Id.

       Compare State v. Jones, 214 Ga. App. 593, 594 (448 SE2d 496) (1994) (“The officer’s stop of the appellee was not justified in that the officer did not observe him commit any crime before the stop, and the officer did not testify to any facts that would indicate the appellee was about to violate the law in any manner.”).

        Hopkins v. State, 209 Ga. App. 337, 338 (1) (a) (433 SE2d 423) (1993) (physical precedent only); see also Holt v. State, 227 Ga. App. 46, 49 '(487 SE2d 629) (1997) (“In determining whether such a stop, made in the absence of an observed violation of law, was justified, the proper inquiry is not merely whether the officer could validly have made the stop, but whether under the same circumstances a reasonable officer would have done so absent any invalid purpose”) (punctuation omitted; emphasis in original).

       At the hearing on the motion to suppress, Zeeman denied that the bags were in plain view. The trial court was authorized to believe Massey’s testimony over Zeeman’s, and we will not disturb that finding on appeal. See Hines, supra.

        Samuel v. State, 198 Ga. App. 558, 560 (2) (402 SE2d 325) (1991).

       Id.; see also Bozeman v. State, 196 Ga. App. 743, 744 (1) (397 SE2d 30) (1990); Cameron v. State, 192 Ga. App. 697 (385 SE2d 792) (1989).

       Compare Stone v. State, 162 Ga. App. 654, 655 (1) (292 SE2d 525) (1982) (veteran police officer testified at suppression hearing that “when he saw the torn paper sack containing the brownish and white substances, to his personal knowledge what he observed, ‘was not any controlled substance or was not anything that appeared to be a controlled substance,’ and that at that time there was no crime being committed in the officer’s presence”).

        Samuel, supra.

       (Citations and punctuation omitted.) Scoggins v. State, 248 Ga. App. 1, 2 (545 SE2d 19) (2001); see also OCGA § 17-5-1.

       See Bright v. State, 265 Ga. 265, 279 (5) (a) (455 SE2d 37) (1995).


author: Mikell, Judge.

text:
    A01A0618, A01A0619.
    A01A0620, A01A0621.
    ASSOCIATION SERVICES, INC. v. SMITH; and vice versa. ASSOCIATION SERVICES, INC. v. PIERCE; and vice versa.
    (549 SE2d 454)
   Mikell, Judge.

This case involves four related appeals. Bobbie Smith and Joann Pierce filed separate actions against Association Services, Inc. (“ASI”), John Bullock & Company Southeast, Inc. (“Bullock”), and Michael Littleton, each asserting the following causes of action: (1) intrusion upon seclusion or solitude; (2) false light invasion of privacy; (3) defamation and conspiracy to commit defamation; (4) conspiracy to invade privacy; (5) conspiracy to commit criminal conduct; and (6) Georgia Racketeer Influenced & Corrupt Organizations Act (RICO) violations. Smith subsequently dismissed her defamation and RICO claims, and Pierce dismissed her RICO claim. ASI filed motions for summary judgment in both cases. With respect to Smith’s action, the trial court denied the motion as to the claims of intrusion upon seclusion and conspiracy to violate privacy and granted summary judgment in favor of ASI on Smith’s remaining claims. Likewise, in Pierce’s action, the trial court denied the motion as to the claims of intrusion upon seclusion and conspiracy to violate privacy and granted summary judgment in favor of ASI on Pierce’s remaining claims. The court signed certificates of immediate review in both cases, and we granted the applications for interlocutory appeal. ASI appeals the partial denial of its motions for summary judgment, and Smith and Pierce each appeal the partial grants of summary judgment in their respective cases. For reasons explained below, we affirm.

Both actions share an underlying factual basis, and we will briefly summarize the evidence and then address the errors enumerated in the four related appeals. As a preliminary matter, we note that

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

Smith v. Persichetti, 245 Ga. App. 357 (537 SE2d 441) (2000).

So viewed, the record shows that on February 24, 1997, Pierce injured her ankle while working for Pierce Poured Walls, Inc. (“PPW”), a company that she owned with her husband. The couple operated PPW out of a retail store they owned, Southeastern Ornamental, where Pierce worked as a sales clerk. Smith is Pierce’s sister and was also employed by Southeastern Ornamental. Pierce handled the payroll for PPW, and, on the morning of February 24, she left the store to retrieve some paperwork from her home. She fell and broke her left ankle on the steps in front of her home.

As a result of her injury, Pierce filed a workers’ compensation claim. At the time of the claim, PCA Solutions was the third-party workers’ compensation claim administrator for PPW, pursuant to an agreement with PPW’s insurer, the Home Builders Association of Georgia Mutual Insurance Company (“Home Builders”). PCA Solutions began paying benefits to Pierce.

Appellant ASI was formed by Home Builders on June 1, 1997, to function as its workers’ compensation claims administrator. All claims involving the members of Home Builders, including PPW, were transferred from PCA Solutions to ASI. Therefore, on June 1, 1997, ASI became the administrator handling Pierce’s claim.

Prior to the formation of ASI, on May 8, 1997, PCA Solutions hired a private investigation firm, Bullock, to conduct an “activities check” on Pierce. A notation in Pierce’s claim file indicated that PCA Solutions was concerned because Pierce was an owner and corporate officer of PPW. Additionally, Pierce claimed that she was completely disabled; however, she answered the PPW business telephone on May 8, 1997, and indicated to a representative of PCA Solutions that she was able to perform clerical work and “walk some.” Furthermore, there were conflicting reports from Pierce’s physician, Dr. Maecenas Hendrix. One status report signed by Dr. Hendrix, dated April 22, 1997, indicated that Pierce was able to return to work as long as her lifting and/or carrying was limited to ten to twenty-five pounds. However, a May 6, 1997 status report, also signed by Dr. Hendrix, provided that Pierce was unable to return to work at all until after her next appointment two weeks later.

In an effort to determine whether Pierce was, in fact, able to work, Littleton, an investigator employed by Bullock, conducted surveillance of Pierce’s home and workplace on three days in May and on June 7, 1997. On May 14, Littleton videotaped a woman fitting Pierce’s description walking around Southeastern Ornamental’s property, watering plants and filling birdbaths, showing no sign of injury. Littleton believed that the woman on the tape was Pierce; however, he had mistakenly videotaped Smith, who also worked at Southeastern Ornamental and is similar in appearance to Pierce.

When ASI took over administration of the Pierce claim on June 1, 1997, Tracy Nolton was assigned to work on the file. After viewing the tape and believing that it showed Pierce engaged in physical activity, Nolton sent the tape to ASI’s attorney, Kevin Carlock.

Carlock sent a letter and a copy of the tape to Dr. Hendrix seeking his professional opinion as to Pierce’s ability to work. In an affidavit, Carlock stated that rather than suspend Pierce’s benefits in reliance on the investigator’s report that Pierce was functioning in a manner inconsistent with her claimed injuries, his firm notified Pierce’s husband, Ansley Pierce, of Littleton’s observation. After Mr. Pierce disputed the investigator’s report, ASI continued to pay benefits to Pierce and scheduled a meeting where the tape could be viewed by the Pierces and Smith.

The meeting was held on or about July 17, 1997, in a conference room at Callaway Gardens Inn. Littleton and another investigator, Dan Nelson, were present, along with the Pierces. Smith did not attend the meeting. The videotape was played one time in the conference room, without sound. Littleton deposed that he could not be certain whether the woman in the video was Pierce, even after meeting her.

A second meeting was held on August 29, 1997, at the office of Pierce’s attorney and was attended by the Pierces, Smith, Nolton, Carlock, Littleton, and Nelson. After viewing the tape in the presence of Pierce and Smith, Carlock acknowledged that the person in the video was in fact Smith. ASI withdrew its motion for a hearing to cease benefits and paid Pierce’s attorney fees incurred in connection with the disputed claim for benefits.

Case No. A01A0618

On appeal, ASI assigns error to the court’s partial denial of its motion for summary judgment as to Smith’s claims of intrusion upon seclusion and conspiracy to invade privacy. We disagree and affirm the court’s ruling.

1. Initially, ASI contends that the torts alleged by Smith were committed, if at all, by PCA Solutions; therefore, ASI cannot be held liable because it did not exist until June 1, 1997, after much of the surveillance at issue had been performed. However, because ASI did not raise this argument in its motion for summary judgment, it is deemed waived. “Issues presented for the first time on appeal furnish nothing for us to review, for this is a court for correction of errors of law committed by the trial court where proper exception is taken. One may not abandon an issue in the trial court and on appeal raise questions or issues neither raised nor ruled on by the trial court.” (Citations omitted.) Nairon v. Land, 242 Ga. App. 259, 261 (3) (529 SE2d 390) (2000).

2. Next, ASI argues that the court should have granted summary judgment on Smith’s intrusion upon seclusion claim because she was unable to establish a prima facie case.

The tort of intrusion upon seclusion or solitude is one of the four categories of invasion of privacy claims. Johns v. Ridley, 245 Ga. App. 710, 712 (2) (537 SE2d 746) (2000); Cabaniss v. Hipsley, 114 Ga. App. 367, 370 (151 SE2d 496) (1966). “With regard to this type of invasion of privacy, the Supreme Court has held that the ‘unreasonable intrusion’ aspect involves a prying or intrusion, which would be offensive or objectionable to a reasonable person, into a person’s private concerns.” Johns, supra, citing Yarbray v. Southern Bell Tel. &c. Co., 261 Ga. 703, 704-705 (409 SE2d 835) (1991). In order to recover for intrusion upon seclusion, Smith must demonstrate that she was subjected to a “ ‘physical intrusion analogous to a trespass.’ ” Davis v. Emmis Publishing Corp., 244 Ga. App. 795, 797 (2) (536 SE2d 809) (2000), citing Cox Communications v. Lowe, 173 Ga. App. 812, 814 (2) (328 SE2d 384) (1985).

Smith contends that there is, at minimum, a jury issue as to whether ASI and its investigators trespassed on private property during the course of the investigation. Littleton deposed that he did not go onto the Pierces’ private property when he conducted surveillance of their home while Smith was a visitor there; however, Mr. Pierce testified that it would have been impossible for Littleton to have recorded the events he claimed to have witnessed without trespassing. Furthermore, there is conflicting evidence in the record regarding whether Littleton trespassed on the property of Smith’s workplace, Southeastern Ornamental. Additionally, Littleton admitted placing at least seven “pretext” telephone calls to Smith’s workplace.

We conclude that a genuine issue of material fact remains as to whether the investigators’ conduct constituted an unreasonable intrusion into Smith’s seclusion and private affairs. Accordingly, the trial court properly denied ASI’s motion for summary judgment as to this claim.

3. ASI contends that the court erred in denying its motion for summary judgment on Smith’s claim of conspiracy to invade her privacy. Essentially, ASI argues that it has not invaded her privacy through intrusion upon seclusion; therefore, the conspiracy claim cannot survive. See Savannah College of Art &c. v. School of Visual Arts of Savannah, 219 Ga. App. 296 (464 SE2d 895) (1995).

We held in Division 2 that a jury issue exists as to whether the defendants committed the tort of invasion of privacy (intrusion upon seclusion). There is evidence that if the investigators did unreasonably intrude upon Smith’s seclusion, their conduct was the result of requests by PCA Solutions and ASI. Therefore, the court did not err in concluding that a jury question exists as to Smith’s conspiracy claim.

Case No. A01A0619

4. In her cross-appeal, Smith contends that the court erred in granting ASI’s motion for summary judgment as to her claim for false light invasion of privacy. We disagree.

“[P]ublicity which places the plaintiff in a false light in the public eye” is another of the four torts that make up the general tort of invasion of privacy. Cabaniss, supra at 370. See also Johns, supra at 712. In a false light case, “[t]he interest protected is clearly that of reputation, with the same overtones of mental distress as in defamation.” (Citation and punctuation omitted.) Cabaniss, supra at 375 (3). Essentially, to establish a claim of false light, a plaintiff must establish the existence of false publicity that “depicts the plaintiff as something or someone which [she] is not.” (Citations and punctuation omitted.) Zarach v. Atlanta Claims Assn., 231 Ga. App. 685, 689-690 (3) (500 SE2d 1) (1998). Next, the plaintiff must demonstrate that “the false light in which [she] was placed would be highly offensive to a reasonable person.” (Citation and punctuation omitted.) Thomason v. Times-Journal, 190 Ga. App. 601, 604 (4) (379 SE2d 551) (1989) (“the hypersensitive individual will not be protected”) (citation and punctuation omitted). See also Brewer v. Rogers, 211 Ga. App. 343, 350 (3) (439 SE2d 77) (1993). '

Smith argues that she was depicted in a false light by the videotape made by Littleton, who mistakenly believed he was observing Pierce. Contrary to Smith’s argument, however, we conclude that the undisputed evidence precludes her recovery on this claim.

First, Smith has not been placed in the public eye by ASI. Even though the tape was played in a conference room at Callaway Gardens Inn, there is no evidence that any members of the general public saw the tape or even were aware of it. Furthermore, although the tape was sent to Dr. Hendrix, he did not recall viewing it. The investigators and the representatives of ASI viewed the tape in connection with their investigation of Pierce’s claim. Unlike cases in which a plaintiff is falsely depicted in a televised newscast or in published materials, the case sub judice is devoid of any evidence of publicity. See, e.g., Zarach, supra at 687; Brewer, supra at 343-344.

Even assuming, arguendo, that the depiction of Smith in the videotape did publicly place her in a false light, we cannot conclude that the false light in which Smith was placed would be “highly offensive to a reasonable person.” See Brewer, supra at 350 (3). Any false depiction was merely the result of Littleton mistakenly recording Smith instead of Pierce. In Thomason, supra, we held that a newspaper’s publication of a false obituary did not satisfy the “offensiveness” element. Likewise, in this case we do not find that the videotape of Smith would be “offensive and objectionable to a reasonable person of ordinary sensitivities.” Id. Accordingly, the trial court did not err in granting ASI’s motion for summary judgment as to Smith’s claim of false light invasion of privacy.

5. Smith’s argument that the court erred in granting ASI’s motion for summary judgment on her claim of conspiracy to commit criminal conduct is without merit. Smith alleges that ASI conspired with other parties to violate OCGA §§ 16-7-21 (criminal trespass) and 16-11-62 (3), which prohibits a person from “go[ing] on or about the premises of another or any private place . . . for the purpose of invading the privacy of others by eavesdropping upon their conversations or secretly observing their activities.”

It is well settled that a plaintiff cannot maintain an action for a conspiracy in the absence of underlying actionable conduct.

A conspiracy is a combination of two or more persons to accomplish an unlawful end or to accomplish a lawful end by unlawful means. . . . Where civil liability for a conspiracy is sought to be imposed, the conspiracy of itself furnishes no cause of action. The gist of the action is not the conspiracy alleged, but the tort committed against the plaintiff and the damage thereby done.

(Citations and punctuation omitted.) First Fed. Sav. Bank v. Hart, 185 Ga. App. 304, 305 (2) (363 SE2d 832) (1987). See also Rose v. Zurowski, 236 Ga. App. 157-158 (1) (511 SE2d 265) (1999).

The trial court found that Smith’s claim of conspiracy to commit criminal conduct failed as a matter of law, and we see no basis for reversal. A civil conspiracy claim for damages requires a showing that two or more persons have engaged in conduct which constitutes a tort. Savannah College of Art, supra at 297. The criminal violations Smith alleges against ASI are not actionable for damages and cannot form the basis of a civil conspiracy claim. Rather, Smith’s claims of intrusion upon seclusion and conspiracy to commit the tort of invasion of privacy survived summary judgment and provide the appropriate avenue to seek damages for the wrongs alleged. Accordingly, the trial court’s grant of summary judgment on this claim is affirmed.

Case No. A01A0620

6. In a related appeal, ASI challenges the trial court’s partial denial of its motion for summary judgment in Pierce’s action. ASI again argues that it did not exist until June 1, 1997, and, therefore, cannot be held liable for conduct prior to that date.

We held above in Division 1 of Case No. A01A0618 that ASI’s failure to raise this argument in its motion for summary judgment in that case precludes our consideration of it on appeal. Nairon, supra at 261 (3) (“One may not abandon an issue in the trial court and on appeal raise questions or issues neither raised nor ruled on by the trial court.”). Again, ASI failed to raise this argument in its motion for summary judgment in this case; therefore, it presents nothing for our review.

Furthermore, even if we were able to consider ASI’s argument, it would likely fail. ASI’s answer to the complaint contradicts its present argument, when it states: “Defendant admits commencement of benefits and medical expenses to Plaintiff as required by the Georgia Workers’ Compensation Act due to Plaintiff’s disabling work related injury.” Additionally, Nolton’s testimony indicates that many of ASI’s employees came from PCA Solutions, and that ASI occupied the same offices as PCA Solutions. Accordingly, there is at least some evidence in the record from which a jury could conclude that ASI and PCA Solutions were the same entity. Finally, even if ASI did not exist before June 1,1997, Pierce’s claims extend to conduct that took place after that date.

7. Next, ASI contends that the court erred in denying its motion for summary judgment as to Pierce’s claim of intrusion upon seclusion, because she was unable to establish a prima facie case for that cause of action. We disagree.

As a preliminary matter, we reject ASI’s contention that the trial court erred in denying ASI’s motion to strike the affidavit of Ansley Pierce. The affidavit testimony of Mr. Pierce provides facts and opinions regarding his property and what would be visible on the property from different distances and angles. We conclude that the court did not abuse its discretion in considering the affidavit. “[A]ffidavits may be considered even if conclusions are intermingled with facts.” Willig v. Shellnut, 224 Ga. App. 530, 533 (3) (480 SE2d 924) (1997). See also Keene v. Herstam, 225 Ga. App. 115, 117 (1) (483 SE2d 335) (1997) (“[S] elf-serving does not equate with eonclusory when the statements contained in an affidavit are supported ... by substantiating fact[s] and circumstances.”).

We held above in Case No. A01A0618, Division 2, that the trial court properly denied ASI’s motion for summary judgment on Smith’s claim of intrusion upon seclusion, and we reach the same result regarding Pierce’s claim, which is based on the same evidence. As a result of conflicting evidence in the record, we conclude that a genuine issue of material fact remains as to whether the investigators’ conduct constituted an unreasonable intrusion upon Pierce’s seclusion. Taking into consideration the affidavit testimony of Mr. Pierce, there is at least a jury issue as to whether his wife was subjected to a “‘physical intrusion analogous to a trespass’” by the investigators, acting at the request of PCA Solutions and ASI. Davis, supra at 797 (2). Specifically, Littleton denied that he entered the Pierces’ private property when he conducted surveillance of their home. However, he was able to record the exact tag numbers of three vehicles parked at the Pierce residence, as well as other observations. Mr. Pierce testified that it would have been impossible for Littleton to have recorded the events he claimed to have witnessed without trespassing.

ASI argues that the investigation was reasonable and therefore did not constitute an actionable intrusion upon Pierce’s seclusion. See Ellenberg v. Pinkerton’s, Inc., 130 Ga. App. 254, 256-257 (202 SE2d 701) (1973). Compare Pinkerton Nat. Detective Agency v. Stevens, 108 Ga. App. 159 (132 SE2d 119) (1963). However, we agree with the trial court that the issue of whether the investigators’ conduct amounted to an intrusion upon Pierce’s seclusion should be decided by a jury. Unlike in Ellenberg, supra, where the investigator conducted surveillance from public roads, in the case sub judice, there is at least some evidence that the investigators trespassed on the Pierces’ private property during their surveillance of the residence. After hearing the evidence, a jury may very well conclude that the investigators’ conduct was reasonable and did not constitute an intrusion upon Pierce’s seclusion; however, because there is conflicting evidence, that determination is for a jury to make, and summary judgment is inappropriate. OCGA § 9-11-56 (c).

8. As in the Smith case, ASI contends here that the court erred in denying summary judgment as to Pierce’s claim of conspiracy to invade privacy. Again, ASI argues that it has not committed the underlying tort of invasion of privacy, and, thus, the conspiracy claim cannot stand. However, as we held in Case No. A01A0618, Division 3, because there are jury issues regarding whether the investigators committed the tort of intrusion upon seclusion and whether they were acting in concert with ASI, summary judgment is not appropriate on the conspiracy claim. The question of whether a conspiracy existed should be decided by a jury. See McLane v. Atlanta Market Center Mgmt. Co., 225 Ga. App. 818, 826 (4) (b) (486 SE2d 30) (1997) (“Because civil conspiracy is by its very nature a secret endeavor, . . . concert of action, amounting to conspiracy, is best suited for jury resolution. . . . [Cit.]”), rev’d on other grounds, 269 Ga. 604 (503 SE2d 278) (1998). The trial court properly denied the motion as to this claim.

Case No. A01A0621

In her cross-appeal, Pierce contends that the trial court erred by granting ASI’s motion for summary judgment as to her claims of false light invasion of privacy, defamation, conspiracy to commit defamation, and conspiracy to violate a criminal statute. We find no error and affirm the trial court’s judgment.

9. With regard to Pierce’s claim of false light invasion of privacy, we conclude that the undisputed evidence precludes her recovery on this claim. As we noted in Division 4, Case No. A01A0619, false light is one of the four torts that make up the general tort of invasion of privacy. Cabaniss, supra at 370. In order to recover, a plaintiff must establish the existence of false publicity that “depicts [her] as something or someone which [she] is not.” (Citations and punctuation omitted.) Zarach, supra at 689-690 (3). Additionally, the plaintiff must demonstrate that the false depiction would be highly offensive to a reasonable person. Thomason, supra at 604.

Pierce argues that she was falsely depicted in the videotape as someone who was misrepresenting her injuries and as her sister, Smith. However, even assuming, arguendo, that Pierce was placed in a false light by the video, she cannot establish the elements of publicity or that the false depiction would be highly offensive to a reasonable person. First, there is no evidence in the record that a member of the public viewed the tape or was led to believe in any way that it was Pierce, rather than Smith, depicted on the tape. The only people who saw the tape were the investigators, the representatives of ASI, the attorneys for the parties, the Pierces, Smith, and possibly Pierce’s treating physician, Dr. Hendrix. Additionally, we cannot conclude that being mistaken for her sister during the course of an investigation into a claim for workers’ compensation benefits would be “offensive and objectionable to a reasonable person of ordinary sensitivities.” Thomason, supra.

10. We reject Pierce’s argument that the court erred in granting summary judgment to ASI on her defamation claim. “A libel is a false and malicious defamation of another, expressed in print, writing, pictures, or signs, tending to injure the reputation of the person and exposing [her] to public hatred, contempt, or ridicule.” OCGA § 51-5-1 (a). Likewise, “[s]lander or oral defamation consists in . . . [m]aking charges against another in reference to his trade, office, or profession, calculated to injure him therein; or [u]ttering any disparaging words productive of special damage which flows naturally therefrom.” OCGA § 51-5-4 (a) (3), (4). Pierce alleges that she was subjected to libel and slander through the investigators’ report stating that she was able to engage in activities which she was actually unable to do and through the videotape of Smith that the investigators and ASI falsely represented as a depiction of Pierce.

Even assuming, arguendo, that the report and videotape were otherwise defamatory, they are privileged communications under OCGA § 51-5-7 (2) and (3) and thus not actionable because they lack the element of publication. “Statements made in the good faith performance of a private duty, such as reports from an independent investigator to an insurance company, are privileged.” Willis v. United Family Life Ins., 226 Ga. App. 661, 664 (1) (b) (487 SE2d 376) (1997), citing Haezebrouck v. State Farm &c. Ins. Co., 216 Ga. App. 809, 813 (455 SE2d 842) (1995). In Auer v. Black, 163 Ga. App. 787 (294 SE2d 616) (1982), a case involving a workers’ compensation claim, we affirmed the grant of summary judgment to a doctor who reported to the plaintiff’s employer that it was his “firm medical opinion that this patient is trying to defraud the Workmen’s Compensation [Board] out of money.” (Punctuation omitted.) We held that “[c]learly[,] the statements in the narrative report were made by the doctor in the performance of his duties, public and private, and were made to protect his own interest in the matter,” and, accordingly, that the defense of privilege applied. Id. at 789.

Similarly, in the case sub judice, any communications made by ASI concerning the validity of Pierce’s claim were made in performance of its private duty to its client, PPW, and to protect its own interest in the matter. Thus, the communications were privileged, and Pierce’s claim for defamation cannot stand. OCGA § 51-5-7 (2), (3). The trial court did not err in granting ASI’s motion for summary judgment on this claim.

11. Likewise, because Pierce’s underlying defamation claim fails, she cannot maintain a cause of action for conspiracy to defame her. See First Fed. Sav. Bank, supra at 305 (2).

12. Finally, Pierce assigns error to the court’s grant of summary judgment on her claim of conspiracy to commit criminal conduct. We addressed a similar issue above in Division 5, Case No. A01A0619, where we held that the court did not err in granting summary judgment on Smith’s identical claim. We reach the same result here. In order to impose civil liability for a conspiracy, a plaintiff must demonstrate that two or more persons acted in concert to commit a tort. Savannah College of Art, supra at 297. “The gist of the action, if a cause of action exists, is not the conspiracy alleged, but the tort committed against the plaintiff and the resulting damage.” (Citations and punctuation omitted.) Id. As we noted above, Pierce’s claims of intrusion upon seclusion and conspiracy to invade her privacy provide the appropriate avenue to seek damages for the alleged wrongful conduct.

Decided May 16, 2001.

Webb, Carlock, Copeland, Semler & Stair, David F. Root, Austin E. Carter, Deborah L. Arscott, for appellant.

Hatcher, Stubbs, Land, Hollis & Rothschild, William B. Hardegree, Alan G. Snipes, Billy E. Moore, for appellees.

Judgment affirmed.

Blackburn, C. J., and Pope, P. J., concur.


text:
    A01A0708.
    MITCHELL MOTORS, INC. v. BARNETT.
    (549 SE2d 445)
   Ruffin, Judge.

Mitchell Motors, Inc. appeals from the trial court’s order denying it summary judgment and granting David Barnett’s cross-motion for summary judgment in this declaratory judgment action. For reasons that follow, we affirm.

Summary judgment is appropriate where “there is no genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law.” In this case, the facts are undisputed. On February 20, 1998, Mitchell Motors, a car dealership, sold a used Jeep Cherokee to another car dealership, Chris Auto Sales, Inc., for $14,000. Chris Auto took possession of the Jeep after giving Mitchell Motors a bank draft for the full purchase price. Chris Auto’s bank subsequently dishonored the draft for insufficient funds, and Mitchell Motors demanded that Chris Auto pay by other means or return the Jeep. It is unclear when Mitchell Motors learned about the dishonored draft or demanded relief from Chris Auto. The evidence shows, however, that Chris Auto neither submitted additional payment nor returned the Jeep.

On March 20,1998, Chris Auto sold the Jeep to one of its regular customers, Barnett, for $16,734.69. Barnett paid for the Jeep in full with a check, which Chris Auto negotiated. At the time of sale, Barnett received a sales contract, a vehicle buyer’s order, and possibly an odometer statement. He did not receive the Jeep’s certificate of title, but expected Chris Auto to process the paperwork and mail the certificate to him, “just like they always [did].” According to Barnett, “[t]hat’s just the way it was always done: Pay the tax and tag and title fee, and I get it in the mail from the dealership.”

When Barnett did not receive the Jeep’s certificate of title within four to six weeks, he called Chris Auto, which promised to “check into” the situation. He heard nothing further and called the dealer back. At that point, Barnett learned that Chris Auto had purchased the Jeep from Mitchell Motors, which apparently still had the certificate of title, and “that there was a problem [Chris Auto] was trying to straighten out.” Eventually, a representative from Mitchell Motors called Barnett and “advised that Chris Auto had not paid Mitchell Motors for the Jeep vehicle and the vehicle remained the property of Mitchell Motors.” The Mitchell Motors representative demanded that Barnett pay Mitchell Motors $14,000 or return the Jeep. Barnett refused, arguing that he had already purchased the Jeep from Chris Auto. Mitchell Motors did not release the certificate of title to Barnett, who has been unable to obtain a license tag and was told by police not to drive the Jeep.

Barnett subsequently sued Mitchell Motors. Claiming to be a bona fide purchaser for value, Barnett requested declaratory relief and an order from the trial court directing Mitchell Motors to release the certificate of title to him. In the alternative, he sought damages for conversion and tortious interference with contract. Mitchell Motors counterclaimed for $14,000, and the parties filed cross-motions for summary judgment. Following a hearing, the trial court granted Barnett’s motion for summary judgment, denied Mitchell Motors’ motion, and ordered Mitchell Motors to deliver the Jeep’s certificate of title to Barnett.

1. In its first enumeration of error, Mitchell Motors argues that the trial court erred in denying its motion for summary judgment and granting summary judgment to Barnett. We find no error.

Title to the Jeep passed to Chris Auto, despite the dishonored bank draft. Under OCGA § 11-2-401 (2), “[u]nless otherwise explicitly agreed title passes to the buyer at the time and place at which the seller completes his performance with reference to the physical delivery of the goods, despite any reservation of a security interest and even though a document of title is to be delivered at a different time or place.” Because the record reveals no explicit agreement to the contrary, Chris Auto obtained title to the Jeep Cherokee when it took possession of the vehicle on or about February 20, 1998. Mitchell Motors’ refusal to deliver the certificate of title to Chris Auto does not alter this result. As we have noted, “ownership may change hands without the necessity of transferring a title certificate by the seller and obtaining a new one in the name of the purchaser.”

Given the dishonored bank draft, Chris Auto’s title was likely voidable. A person with voidable title, however, can transfer good title to a good faith purchaser for value:

A purchaser of goods acquires all title which his transferor had or had power to transfer. ... A person with voidable title has power to transfer a good title to a good faith purchaser for value. When goods have been delivered under a transaction of purchase the purchaser has such power even though . . . [t]he delivery was in exchange for a check which is later dishonored.

The record shows that Mitchell Motors delivered the Jeep to Chris Auto under a “transaction of purchase.” Chris Auto subsequently sold the vehicle for over $16,000 to Barnett, who was not aware of the dispute between Mitchell Motors and Chris Auto until well after the sale. Nothing in the record raises a question about — and Mitchell Motors apparently does not dispute — Barnett’s good faith; he simply purchased a used car from a dealer that he trusted. Furthermore, although it is unclear when Mitchell Motors learned that Chris Auto’s bank draft had been dishonored, the record shows that Mitchell Motors did not void or rescind its purchase contract with Chris Auto before the sale to Barnett. At most, Mitchell Motors demanded that Chris Auto “immediately pay the amount of the dishonored draft or return the Jeep.” Mitchell Motors thus gave Chris Auto the option of paying the purchase price by some other means; it did not cancel the sale.

Construing a provision virtually identical to OCGA § 11-2-403 (1), an Ohio court has noted:

The “voidable title” doctrine evolved to ameliorate the harshness of the basic rule that a seller can convey no greater title than that seller has to convey. The doctrine attempts to reconcile the rights of a “true owner” who was fraudulently induced to transfer title in goods to a “wrongdoer” with the rights of an innocent purchaser from the wrongdoer. Title in the wrongdoer is “voidable” because the true owner is entitled to rescind the transaction and recover the goods from that individual. The right of rescission is cut off, however, by a transaction to a “good faith purchaser.”

Mitchell Motors did not rescind the voidable contract or reclaim the Jeep, and its right of rescission was cut off by the subsequent sale to a good faith purchaser for value. Barnett received good title to the Jeep under OCGA § 11-2-403 (1). Accordingly, the trial court did not err in awarding summary judgment to Barnett and denying Mitchell Motors’ motion for summary judgment.

2. Mitchell Motors also asserts that this is not an appropriate case for declaratory relief. It claims, in essence, that the trial court should have dismissed Barnett’s petition for declaratory judgment. To support its claim, Mitchell Motors merely cites three general legal principles. It advances no reasoned argument, provides no record references, and makes no effort to apply those general principles to the facts of this case, in clear violation of Court of Appeals Rule 27. Furthermore, declaratory relief is authorized

when there are circumstances showing a necessity for a determination of the dispute to guide and protect the plaintiff from uncertainty and insecurity with regard to the propriety of some future act or conduct, which is properly incident to his alleged rights and which if taken without direction might reasonably jeopardize his interest.

Decided May 16, 2001

James B. Gurley, for appellant.

Walter W. Furlong, for appellee.

This case involves a dispute over ownership of a Jeep Cherokee. Although Barnett has the vehicle in his possession, Mitchell Motors still holds the certificate of title. Barnett has not been able to obtain a license plate for the Jeep and has been told by police officers not to drive it. Under these circumstances, declaratory relief was appropriate to “guide and protect [Barnett] from uncertainty and insecurity with regard to the propriety of [his] future [use of the Jeep].” The trial court did not err in awarding Barnett declaratory relief.

3. Because we do not find that Mitchell Motors brought this appeal for purposes of delay, Barnett’s request for damages under OCGA § 5-6-6 is denied.

Judgment affirmed.

Johnson, P. J, and Ellington, J., concur.

       OCGA § 9-11-56 (c).

       (Punctuation omitted.) Right Touch of Class v. Superior Bank, 244 Ga. App. 473, 474 (1) (536 SE2d 181) (2000); see also Mimick Motor Co. v. Moore, 248 Ga. App. 297, 298-299 (1) (a) (546 SE2d 533) (2001).

       See OCGA § 11-2-403 (1); Charles Evans BMW v. Williams, 196 Ga. App. 230, 231 (1) (395 SE2d 650) (1990) (voidable title conveyed when buyer commits fraud and pays with check that is later dishonored); In re Smith, 51 Bankr. 904, 909 (M.D. Ga. 1985) (construing OCGA § 11-2-403 and noting that purchaser who pays with dishonored checks obtains voidable title).

       OCGA § 11-2-403 (1) (b).

       See OCGA § 11-1-201 (32) (“ ‘Purchase’ includes taking by sale, discount, negotiation, mortgage, pledge, lien, issue or reissue, gift, or any other voluntary transaction creating an interest in property”).

       See OCGA § 11-1-201 (19) (“ ‘Good faith’ means honesty in fact in the conduct or transaction concerned.”).

       See OCGA § 11-2-703; Touche, Inc. v. Dearborn, 161 Ga. App. 188, 190 (1) (291 SE2d 35) (1982) (noting difference between rescission of contract and suit for purchase price).

       (Citation omitted.) Creggin Group v. Crown Diversified Indus. Corp., 113 Ohio App.3d 853, 859 (682 NE2d 692, 696) (1996).

       OCGA § 11-2-403 (1); see also Right Touch of Class, supra at 474 (1) (indicating that Mitchell Motors’ “claim for the dishonored check” is against Chris Auto, not Barnett); Benton v. Duvall Livestock Marketing, 201 Ga. App. 430 (1) (411 SE2d 307) (1991) (in conversion cases, “ ‘[w]hen one of two innocent persons must suffer by the act of a third person, he who put it in the power of the third person to inflict the injury shall bear the loss’ ”) (quoting OCGA § 23-1-14).

       (Punctuation omitted.) Baker v. City of Marietta, 271 Ga. 210, 214 (1) (518 SE2d 879) (1999).

       Id. at 215 (1).