text:
    A93A1458.
    STATE OF GEORGIA et al. v. BARDGE.
    (439 SE2d 1)
   Blackburn, Judge.

The State of Georgia, the Department of Transportation, and the Department of Administrative Services (hereinafter collectively referred to as “DOT”), seek review of the Stewart County Superior Court’s order which reversed the decision of the Appellate Division of the State Board of Workers’ Compensation, and awarded temporary total disability benefits and permanent partial disability benefits to appellee, Bardge. We granted DOT’s application for discretionary review.

Bardge suffered a compensable injury to his left wrist on September 27, 1988. Bardge was treated at the Hughston Clinic, by Dr. Sanders. On April 24, 1989, a Form WC-20a was generated by Hughston Clinic which indicated that Bardge was able to return to light duty work as of February 20, 1989. The Form WC-20a also revealed that the date of maximum recovery for Bardge was undetermined and that Bardge had no permanent disability resulting from his injury. Dr. Sanders’ name is signed at the bottom of the Form WC-20a. Dr. Sanders testified that a nurse completed the Form WC-20a by reviewing his notes. Dr. Sanders’ uncontradicted testimony indicated that Dr. Sanders could not give Bardge a permanent disability rating as of April 24, 1989, because Bardge had not yet reached maximum recovery.

Bardge received benefits until February 27, 1989, at which time he was to return to light duty work. However, it is uncontested that Bardge did not return to light duty work, but to his usual duties. Although Bardge had poor attendance due to his health, which was noted by his supervisor, he worked without any major incident until July 23, 1990. Bardge left work on July 23, 1990, and was eventually terminated for his failure to return to work after a leave of absence. On August 20, 1991, Bardge returned to Dr. Sanders and received a permanent partial impairment rating for his September 27, 1988 injury.

1. On appeal, the DOT argues that the superior court erred, in reversing the decision of the State Board of Workers’ Compensation’s Appellate Division, in contravention of the any evidence standard of review, by determining that the statute of limitation on Bardge’s claim had not expired. “OCGA § 34-9-104 (b) provides that an application for a change of condition must be made not more than two years from the date of final payment of income benefits due under the Act. What income benefits were due [Bardge] under the Act? If the evidence supports the conclusion that [he] was due only temporary total disability benefits, then the date of last payment of such benefits on [February 27, 1989], would start the running of the two-year statute of limitation. However, if there is evidence to support a finding that [Bardge] was potentially due other income benefits at the time of the [1988] injury and was not paid these benefits, then [his 1991] claim for change of condition is a viable one.” Holt’s Bakery v. Hutchinson, 177 Ga. App. 154, 160 (338 SE2d 742) (1985).

In the present case, the evidence supports the superior court’s determination that Bardge was due other benefits at the conclusion of his temporary benefits on February 27,1989. DOT’s references to limited portions of the evidence are incomplete, and upon review of the record, it is uncontroverted that Bardge had not reached maximum recovery as of April 24, 1989, and that Dr. Sanders could not determine a permanent impairment rating until maximum recovery was reached. See State of Ga. v. Birditt, 181 Ga. App. 356, 357 (352 SE2d 203) (1986). The Board’s decision was not supported by any evidence and, therefore, was properly reversed by the superior court.

2. In its second enumeration of error, DOT asserts that the superior court erred in reversing the finding of the appellate division that Bardge had failed to establish a change in condition for the worse. The appellate division held that Bardge failed to prove that his inability to find full-time employment was proximately caused by his disability, citing Aden’s Minit Market v. Landon, 202 Ga. App. 219 (413 SE2d 738) (1991). The appellate division specifically found that Bardge quit his job with DOT for reasons unrelated to his compensable injury and that he failed to establish, by credible evidence, that his job injury was related, in any way, to his continued unemployment. In response, Bardge argues that the superior court’s order does not specifically address this issue, meaning that it was affirmed by the superior court. However, the superior court’s order set aside the findings and conclusions of the Appellate Division as contrary to law.

“[T]he dispositive issue [is] whether [Bardge] suffered a loss of earning capacity as the result of an injury sustained while in [the DOT’s] employment.” (Citation and punctuation omitted.) Evco Plastics v. Burton, 200 Ga. App. 121, 122 (407 SE2d 60) (1991). “In seeking a resumption of benefits, the burden is on the employee to show that, after his termination for cause, his inability to secure suitable employment elsewhere was proximately caused by his previous accidental injury.” (Citations and punctuation omitted.) Id.

The record indicates that while Bardge had attempted to do physical work, such as mow grass, he had not sought work from an employer or filled out any applications for work due to his injured arm. In Aden’s Minit Market, supra, we determined that the claimant had not sustained her burden that she “could not find other employment because of her disability. ...” 202 Ga. App. at 220. Therein, the claimant’s “testimony established that she sought employment with several possible employers and was rejected. [We determined that] [t] his proof . . . [was] not sufficient to meet her burden as the record [was] silent on the reasons why she was not hired by any of these other employers.” Id. In the present case, the record is not silent as to why Bardge was unable to find work. He testified that he did not seek employment because he was unable to work due to his injured arm. Bardge’s argument is circular. His lack of effort to obtain employment fails to support the burden placed on all claimants, that his inability to find employment was proximately caused by his accidental injury. See Hartford Accident &c. Co. v. Bristol, 242 Ga. 287 (248 SE2d 661) (1978). Therefore, the superior court erred in reversing the portion of the Appellate Division’s order which found that Bardge had failed to establish a change in condition for the worse.

Decided August 18, 1993

Reconsideration denied December 8, 1993.

Gardner, Willis, Sweat & Goldsmith, Todd S. Handelman, for appellants.

Ellis & Easterlin, George M. Peagler, Jr., W. Alexander Byars, for appellee.

Judgment affirmed in part and reversed in part.

McMurray, P. J., and Johnson, J., concur.


source: Caselaw Access Project

author: McMurray, Presiding Judge.

license: Public Domain

text:
    A93A2581.
    HALL v. THE STATE.
    (439 SE2d 67)
   McMurray, Presiding Judge.

Defendant Hall appeals his conviction of a violation of the Georgia Controlled Substances Act, selling cocaine. Held:

The sole enumeration of error complains that the State’s evidence failed to rebut the entrapment defense presented by defendant and that the trial court erred in denying defendant’s motion for directed verdict of acquittal. The State’s sole witness, an undercover officer, testified as to traveling to defendant’s home with a second officer and a confidential informant. The officers waited in the vehicle while the confidential informant entered the house and remained for approximately 15 minutes. The confidential informant then returned to the vehicle and escorted the officers into the house at which time the buy was made. Defendant testified that the confidential informant was well known to him and related that, while the officers waited in the vehicle outside, he had provided defendant with cocaine and persuaded him to sell it to the officers.

The entrapment defense consists of three elements: (1) the idea for the commission of the crime must originate with the state agent; (2) the crime must be induced by the agent’s undue persuasion, incitement, or deceit; and (3) the defendant must not be predisposed to commit the crime. Hill v. State, 261 Ga. 377 (405 SE2d 258); Wilkey v. State, 203 Ga. App. 1 (416 SE2d 350). “After a defendant presents a prima facie case of entrapment, the burden is on the state to disprove entrapment beyond a reasonable doubt. That determination generally rests with the jury; however, where there is no conflict in the evidence, and all the evidence prior to the entrapment that is introduced, with all reasonable deductions and inferences, demands a verdict of acquittal, the trial judge must direct a verdict of acquittal. State v. Royal, 247 Ga. 309, 310 (275 SE2d 646) (1981) (reversing Royal v. State, 155 Ga. App. 691 (272 SE2d 556) (1980)). The government’s burden is far greater than merely impeaching the accused, it ‘must go further and contradict this witness’ testimony as to the affirmative defense. (Cits.)’ Coleman v. State, 141 Ga. App. 193, 194 (233 SE2d 42) (1977).” Hill v. State, 261 Ga. 377, supra.

Decided November 29, 1993

Reconsideration denied December 9, 1993

Hine, Niedrach & McClellan, John F. McClellan, Jr., for appellant.

“ ‘A distinction must be made between evidence which raises a defense of entrapment and which would require that the jury be charged as to the law of entrapment and the burden of proof thereon, and evidence which, under the standards set out in [OCGA § 17-9-1], would demand a finding of entrapment and, therefore, a directed verdict of acquittal. Lack of conflict in the evidence is only one of the criteria in [OCGA § 17-9-1]. Thus, a defendant’s testimony as to entrapment, even if unrebutted by any other witness to the alleged misconduct, will not entitle him to a directed verdict of acquittal unless that unrebutted testimony, together with all reasonable deductions and inferences therefrom, demands a finding that entrapment occurred.’ State v. Royal, 247 Ga. 309, 310 (275 SE2d 646) (1981).” (Emphasis omitted.) Caithaml v. State, 163 Ga. App. 429 (1) (294 SE2d 674). The jury in the case sub judice was instructed on the issue of entrapment.

We hold that the entrapment issue was properly submitted to the jury since defendant’s testimony contains evidence authorizing a conclusion that he was predisposed to commit the crime. In Gray v. State, 191 Ga. App. 135, 136 (381 SE2d 312), we found that the defendant’s testimony that although he had not sold drugs before he had done it for the money on that occasion showed that he was predisposed to sell drugs for money. In the case sub judice, defendant testified that one of the reasons he cooperated with the confidential informant was that he was to keep some of the cocaine for his own use. Thus, the defendant in the case sub judice disclosed his predisposition to sell drugs for drugs.

Judgment affirmed.

Johnson and Blackburn, JJ., concur.

Stephen F. Lanier, District Attorney, Lisa W. Pettit, Assistant District Attorney, for appellee.


author: Blackburn, Judge.

text:
    A93A1830.
    CITY OF LAWRENCEVILLE v. MACKO et al.
    (439 SE2d 95)
   Blackburn, Judge.

On August 23, 1991, the appellees, William and Patricia Macko, brought the instant action for damages and injunctive relief sounding in negligence and nuisance against the City of Lawrenceville, Georgia (hereinafter referred to as the City), and Gaines Brown, a residential builder and the seller of their home based upon the periodic flooding of their basement. The City responded, asserting several defenses, including sovereign immunity, and asserting a cross-claim against Brown and third-party claims against B. J. Goble, a topographical surveyor of the site, and Appalachee Enterprises, Inc., the developer of the subdivision. Brown responded to the Mackos’ complaint, asserting several defenses and a cross-claim against the City based upon its alleged negligence in the approval of the construction of the home and negligence in its acceptance and maintenance of the subdivision’s drainage system.

Following a trial by jury, judgment was entered on the jury’s special verdict returned in favor of the Mackos on both theories, $90,000 against the City and $60,000 against Brown. The City’s alternative motion for judgment n.o.v. or new trial was denied by the trial court, and this appeal followed.

The evidence produced at trial shows that Brown applied for a building permit from the City and began construction on the Mackos’ home in March 1987. Pursuant to the requirement of the subdivision’s final plat, and after the building permit had been issued, Brown obtained a site plan and topographical survey on the lot, which was prepared by Goble. The plan was needed because of the drainage conditions on the lot. The subdivision plat further provided that the City disclaimed any responsibility for the overflow or erosion of natural or artificial drains beyond the right-of-way. Thereafter, the City began its three-phase inspection of the home with the initial inspection involving the footings of the home, and subsequent inspections involving the home’s structure and mechanical systems. The City’s inspectors do not evaluate the drainage systems of homes or the elevation of the home on the property.

At all times relevant to this action, the City had in force a standard building code governing its inspections of homes. Section 101.2.3 of this building code specifically provided that “[t]he inspection or permitting of any building or plan by any jurisdiction, under the requirements of this Code shall not be construed in any court as a warranty of the physical condition of such building or the adequacy of such plan.” Section 101.2.1 provided that the building code was remedial in nature and “shall be construed to secure such beneficial interests and purposes thereof — which are public safety, health, and general welfare. . . .” Following its approval of the home’s construction, the City issued a certificate of occupancy on the home to Brown.

The Mackos initially saw the home in September 1987, at which time the construction of the home was nearly completed. The Mackos subsequently purchased the home on December 9, 1987, and it is undisputed that the Mackos did not have any discussions with any representatives of the City prior to their purchase. The warranty deed conveying the property to the Mackos provided that the deed was subject to the subdivision plat recorded with the county. It was not until July 16, 1989, that the Mackos experienced the first of three major floods in their drive-under garage, resulting in damage to the home in addition to personal property maintained in the garage, which forms the basis for this action.

1. Initially we must address the City’s third enumeration of error concerning sovereign immunity inasmuch as a ruling on this issue may render many of the City’s remaining enumerations of error moot. Specifically, the City maintains that the trial court erred in failing to direct a verdict and motion notwithstanding the verdict in its favor on the Mackos’ negligence claim based upon the Mackos’ failure to affirmatively show that the City waived its immunity from suit. We agree.

“[I]t is the public policy of the State of Georgia that there is no waiver of the sovereign immunity of municipal corporations of the state and such municipal corporations shall be immune from liability for damages. A municipal corporation shall not waive its immunity by the purchase of liability insurance . . . unless the policy of insurance issued covers an occurrence for which the defense of sovereign immunity is available, and then only to the extent of the limits of such insurance policy.” OCGA § 36-33-1. See Ga. Const. 1983, Art. IX, Sec. II, Par. IX. Hiers v. City of Barwick, 262 Ga. 129 (414 SE2d 647) (1992); Peeples v. City of Atlanta, 189 Ga. App. 888 (377 SE2d 889) (1989). “The doctrine of sovereign immunity is available to a municipality against claims based on negligence.” City of Atlanta v. Atlantic Realty Co., 205 Ga. App. 1, 3 (2) (421 SE2d 113) (1992). “Sovereign immunity is not an affirmative defense that must be established by the party seeking its protection. Instead, immunity from suit is a privilege . . . and the waiver must be established by the party seeking to benefit from the waiver.” (Citations and punctuation omitted.) Ga. Dept. of Human Resources v. Poss, 263 Ga. 347, 348 (1) (434 SE2d 488) (1993).

In the case sub judice, it is undisputed that the Mackos failed to present any evidence showing the City’s affirmative waiver of its immunity from suit. The policy of insurance was not presented at trial, and a determination of a waiver of immunity cannot be made if an insurance policy has not been furnished. Hancock v. Hobbs, 967 F2d 462 (11th Cir. 1992). Since there was no evidence of any kind showing the City’s waiver of sovereign immunity, a directed verdict on the negligence claim was demanded. Moore v. American Suzuki Motor Corp., 203 Ga. App. 189 (1) (416 SE2d 807) (1992).

In an effort to explain their failure to submit evidence of liability insurance, the Mackos maintain in their brief that they were not “compelled” to submit such evidence because of their reliance upon the alleged narrowing of the issue of coverage in a pretrial order signed by the parties. Specifically, the Mackos relied upon the following question included in the order and presented by the City on the issues for trial: “Is the City of Lawrenceville entitled to sovereign immunity to the extent that the damages awarded against the City of Lawrenceville are not covered by liability insurance.” The Mackos’ reliance upon this statement was unjustified inasmuch as this interrogatory was not a factual stipulation or admission that liability insurance existed. In addition, the pretrial order was not signed by the judge, and “ ‘[u]ntil an order is signed by the judge it is ineffective for any purpose.’ [Cit.]” Roman v. Terrell, 195 Ga. App. 219 (1) (393 SE2d 83) (1990). More importantly, it is well settled that counsel for a municipality cannot waive the defense of sovereign immunity by his actions or inactions in the absence of express statutory or constitutional authorization. Collins v. Byrd, 204 Ga. App. 893 (3) (420 SE2d 785) (1992); Kelleher v. State of Ga., 187 Ga. App. 64 (1) (369 SE2d 341) (1988). The Mackos’ failure to produce the insurance policy was fatal to their action for negligence, and consequently, the trial court erred in failing to grant its motion for a directed verdict or motion notwithstanding the verdict in the City of Lawrenceville’s favor on the negligence claim.

2. Even assuming arguendo that the City waived its immunity from suit through its procurement of insurance covering the event, considering the merits of the Mackos’ claim for damages under a traditional negligence analysis, the City was also entitled to a judgment in its favor because the Mackos have not shown that the City owed to them a duty of care. In City of Rome v. Jordan, 263 Ga. 26 (426 SE2d 861) (1993), an action wherein the plaintiff alleged a failure of the municipality to provide police protection, our Supreme Court adopted the public policy doctrine. Under this doctrine, “liability does not attach where the duty owed by the governmental unit runs to the public in general and not to any particular member of the public, except where there is a special relationship between the governmental unit and the individual giving rise to a particular duty owed to that individual.” (Citation and punctuation omitted.) Id. at 27. As a result, liability attaches to the municipality only where a special relationship exists between the municipality and the injured individual which sets the individual apart from members of the general public. Such a special relationship is created if the municipality explicitly assures, through its actions or promises, that it would act on behalf of the injured, the municipality has knowledge that its inaction could lead to harm, and the injured party justifiably and detrimentally relies on the municipality’s undertaking. Id. at 29.

Although this “public duty doctrine” has not been applied in this State to municipalities in actions involving the negligent inspections of homes or negligent issuance of building permits, other jurisdictions have applied this doctrine to actions of a municipality in this capacity. Rich v. Mobile, 410 S2d 385 (Ala. 1982); Trianon Park Condo. Assn. v. City of Hialeah, 468 S2d 912 (Fla. 1985); Ribeiro v. Town of Granby, 481 NE2d 466 (Mass. 1985); Dinsky v. Framingham, 438 NE2d 51 (Mass. 1982); Cracraft v. St. Louis Park, 279 NW2d 801 (Minn. 1979); Delman v. City of Cleveland Heights, 534 NE2d 835 (Ohio 1989). As the Supreme Court of Ohio stated in Delman, at 836, “[t]he primary purpose of building codes and ordinances is ‘to secure to the municipality as a whole the benefits of a well-ordered municipal government, or, as sometimes expressed, to protect the health and secure the safety of occupants of buildings, and not to protect the personal or property interests of individuals.’ (Footnotes omitted.) [Cit.]” The Code adopted by the City of Lawrenceville expressly provides that it is to protect the safety, health, and general welfare of its citizens. Accordingly, any negligence in failing to properly inspect property pursuant to the building codes and its negligence in the issuance of the building permit does not create any duty of care to a particular resident.

Applying this public duty doctrine to the facts of this case, we must determine whether a special relationship existed between the Mackos and the City at the time that the alleged negligent acts occurred. It is undisputed that the City did not make specific assuranees to the Mackos or promises prior to the inspection and approval of the home. In fact, the Mackos did not speak with any representatives of the City prior to their purchase of the home, and did not see the home until the dwelling was nearly completed. Although Ms. Macko testified that after the first major flood of her home, she talked with a city representative who said that he would prepare a work order and have a drainage pipe repaired, this representative was not present at trial. This testimony was hearsay, and “ ‘[hjearsay evidence has no probative value even if it is admitted without objection.’ [Cits.]” Shaver v. State, 199 Ga. App. 428 (405 SE2d 281) (1991). See also Turpin v. Worley, 206 Ga. App. 341 (2) (425 SE2d 895) (1992). Accordingly, this statement cannot be used to establish the necessary assurance on behalf of the City to satisfy the special relationship requirement in light of the explicit disclaimer provided by the City in its building code. As the Mackos did not establish that a duty of care was owed to them by the City based upon a special relationship, the trial court erred in failing to grant the City’s motion for directed verdict.

3. In addition, the City was entitled to a directed verdict as a matter of law on the Mackos’ nuisance claim. While a municipality may be liable for maintaining a nuisance even in the absence of a waiver of its immunity to suit, “[t]o be liable for nuisance, a municipality must be charged with performing a continuous or regularly repetitious act or condition which causes injury, and it must have knowledge or be charged with notice of the dangerous condition or repetitive acts causing injury. [Cit.] A one-time occurrence does not amount to a nuisance. [Cits.]” Banks v. Mayor &c. of Savannah, 210 Ga. App. 62 (435 SE2d 68) (1993). “Liability of a [municipality] cannot arise solely from its approval of construction projects which increase surface water runoff. Rather, it is the [municipality’s] failure to maintain properly the culvert, resulting in a nuisance, which creates its liability. (Cit.)’ (Emphasis in original.) [Cit.]” Provost v. Gwinnett County, 199 Ga. App. 713, 714 (5) (405 SE2d 754) (1991). Moreover, “[i]f the act, omission, or defect alleged to constitute a nuisance is merely negligence, no matter how egregious the result, the municipality will not be liable for damage suffered. [Cit.]” Denson v. City of Atlanta, 202 Ga. App. 325, 327 (414 SE2d 312) (1991).

In the case sub judice, the Mackos asserted in their pleadings that the City “negligently allowed Defendant Brown to construct the improvements on the aforementioned property in violation of Building Codes and the recorded plat governing the property.” At trial, the Mackos’ expert evidence showed that their home flooded because of the filling of the front of the lot by the builder, the building of the home below the minimum floor elevation level mandated by the subdivision plat and the Goble site plan, the improper installation of the drainage pipes, the lack of high back curbs, and the filling of the retention pond by the builder. The Mackos also produced evidence showing that the City was negligent in approving the construction of the home and issuing a certificate of occupancy in light of these defects in addition to issuing a building permit prior to receipt of the requisite site plan. While the Mackos produced evidence at trial that the City accepted dedication of the drainage system, and thus were responsible for the maintenance and repair of the system, on the contrary, approval of a plat that contains offers of dedication does not constitute acceptance of the responsibility for the drainage system on the part of a municipality. Lewis v. DeKalb County, 251 Ga. 100 (303 SE2d 112) (1983). There is no evidence that the City exercised any control over this drainage system. Provost, supra. Even assuming arguendo that the City was responsible for maintaining the drainage system, viewing the evidence in the light most favorable to the verdict, the evidence showed at most that the City was negligent, and, negligence is insufficient to support a cause of action for nuisance. Denson, supra. Accordingly, the judgment rendered against the City must be reversed.

Decided December 9, 1993.

Drew, Eckl & Farnham, T. Bart Gary, for appellant.

John E. Mahan, for appellees.

4. Based upon our holdings above, we need not address the City’s remaining enumerations of error.

Judgment reversed.

McMurray, P. J., and Johnson, J., concur.

       On September 11, 1992, prior to trial, the City dismissed its third-party complaint against Goble without prejudice.

       The jury apportioned the damages against the City and Brown, awarding $40,000 against Brown on the negligence claim and $20,000 based upon nuisance, and awarding $60,000 against the City on negligence and $30,000 on nuisance. The jury awarded Brown $30,000 on his cross-claim against the City but the City’s cross-claim against Brown was denied. However, the City was awarded $18,750 in its cross-claim against the developer of the subdivision, Appalachee Enterprises, Inc.

       Following the filing of this appeal, the City dismissed its third-party complaint against Appalachee Enterprises, Inc. Brown did not appeal the judgment entered against him on the jury’s verdict.


text:
    A93A2385.
    SHEATS v. THE STATE.
    (439 SE2d 102)
   McMurray, Presiding Judge.

Defendant was convicted of possession of cocaine and he appeals. Held:

1. Pursuant to a search warrant, police officers entered the premises of Clara Thomas. They found Ms. Thomas sitting on a couch and defendant sitting on the floor on a cushion, next to the couch. Ms. Thomas and defendant were ordered to stand away from the couch and they did so. Ms. Thomas stated that she was not going to “take the blame” and she told the officers that they should look under the cushion. An officer lifted the cushion and found a small bottle containing cocaine. At trial, Ms. Thomas testified that the cocaine belonged to defendant and that he took it out of his pocket and placed it under the cushion when the police announced their entry.

Decided December 9, 1993.

L. Eddie Benton, Jr., for appellant.

Lydia J. Sartain, District Attorney, Jennifer M. Risley, Assistant District Attorney, for appellee.

Defendant asserts the evidence was insufficient to support his conviction because Ms. Thomas’ testimony was not corroborated. We disagree. “Slight evidence of a defendant’s identity and participation from an extraneous source is all that is required to corroborate the accomplice’s testimony and thus support the verdict. [Cit.] The necessary corroboration may be by circumstantial evidence. [Cit.]” Harris v. State, 180 Ga. App. 56, 57 (348 SE2d 476). Ms. Thomas’ testimony was corroborated by the fact that the police found defendant sitting on the cushion under which the cocaine was hidden.

2. The trial court did not err in charging the jury on constructive possession. See generally Thomas v. State, 153 Ga. App. 686, 688 (2) (266 SE2d 335).

3. The State struck three out of five black prospective jurors, explaining that two of the stricken jurors were sisters, were related to defendant (albeit distantly) and knew his family; and that the third juror worked with defendant, spoke with him on the job, and knew his mother, sister and brother. Based on the State’s explanation, the trial court determined that the State exercised its strikes in a racially-neutral fashion. We cannot disagree and find no error. Burgess v. State, 194 Ga. App. 179 (390 SE2d 92).

Judgment affirmed.

Johnson and Blackburn, JJ., concur.


author: Johnson, Judge.

text:
    A93A2464.
    BRADFIELD v. THE STATE.
    (439 SE2d 100)
   Johnson, Judge.

Anthony Bradfield’s trial for felony theft by taking ended when, during presentation of his defense, the trial court acceded to the State’s request for a mistrial over defense objection. Following the trial court’s denial of his plea in bar to retrial based on double jeopardy grounds, Bradfield files this direct appeal. See Patterson v. State, 248 Ga. 875 (287 SE2d 7) (1982).

Bradfield was accused of stealing tires and custom rims from an automobile that he was repairing for Marcus Stembridge. Sanjay English testified for the State that Stembridge asked him to keep an eye on his car while Bradfield was fixing it because he lived nearby. English stated that his brother woke him up at approximately 2:00 a.m. after observing activity near the car. From the porch of their apartment, English and his brother saw Bradfield standing near the car as two or three men removed the wheels, rolled them up the street, put them in another car and drove away. English stated that his father, John English, was not with them on the porch but could have been watching from his bedroom window.

The defense served John English with a subpoena, and he appeared at the courthouse on Monday of the trial week. Because the case was not going to be tried until Wednesday, the defense attorney told John English he could leave, but to come back on Wednesday. He did not return. The defense presented several witnesses and then informed the court that, despite their efforts, John English refused to return to court to testify. The court allowed the defense attorney to present a proffer of evidence regarding the materiality of the testimony of John English. In her proffer, the attorney stated, inter alia, that during an interview she had asked John English if he knew Brad-field and he said that he did not. He told her that he had witnessed the theft of the tires from the porch with his son, and that the perpetrators appeared to be teenagers. The attorney stated that she needed John English’s testimony both to impeach the testimony of Sanjay English and because it bore on the issue of identification of Bradfield, who is not a teenager. Bradfield’s attorney then requested that the court allow the investigators who had accompanied her when she had interviewed John English to testify about what he had told them. The court allowed the investigators to testify. One of the investigators contradicted the defense attorney’s proffer by testifying on cross-examination that John English said he knew Anthony Bradfield. Upon questioning by the court, the investigator reiterated that John English told them that he knew Bradfield. The court concluded that the jury had been contaminated by the conflict between the attorney’s proffer, which had been made outside the jury’s presence, and the investigator’s actual testimony and granted the State’s motion for a mistrial.

“The power of a trial court ‘to interrupt the proceedings on (its) own or the prosecutor’s motion by declaring a mistrial is subject to stringent limitations. . . . (R)etrial is permissible only if a manifest necessity existed for the declaration of the mistrial lest otherwise the end(s) of public justice be defeated; the existence of “manifest necessity” is to be determined by weighing the defendant’s right to have his trial completed before the particular tribunal against the interest of the public in having fair trials designed to end in just judgments; and the decision must take into consideration all the surrounding circumstances. (Cits.)’ [Cit.]” (Emphasis supplied.) Foody v. State, 205 Ga. App. 666 (423 SE2d 423) (1992).

The State relies on McGarvey v. State, 186 Ga. App. 562 (368 SE2d 127) (1988). In McGarvey, the defense attorney told the jury in his opening statement that the political aspirations of the assistant district attorney motivated the prosecution of his client. After declaring a mistrial, the trial court denied the defendant’s plea in bar based on double jeopardy and this court affirmed holding that a “mistrial does not bar retrial if the termination of the trial was not improper . . . termination of a trial is not improper if prejudicial conduct in or out of the courtroom makes it impossible to proceed with the trial without injustice to the defendant.” (Citation and punctuation omitted.) Id. at 563. In McGarvey, the prejudicial conduct was the result of the intentional actions of the defense attorney. In our case there is no evidence in the record that defense counsel acted intentionally in allowing a witness to offer testimony which was in conflict with her proffer.

Decided December 9, 1993.

Sarina J. Woods, for appellant.

“In the absence of a defendant’s motion for mistrial, the doctrine of manifest necessity stands as a command to trial judges not to foreclose the defendant’s option to have his trial completed by a particular tribunal until a scrupulous exercise of judicial discretion leads to the conclusion that the ends of public justice would not be served by a continuation of the proceedings.” (Citations and punctuation omitted.) Foody, supra at 667. There is nothing in the record of this case to indicate that there was a manifest necessity for declaring a mistrial, and the court did not afford the defense any opportunity to suggest alternatives short of a mistrial. See Burleson v. State, 259 Ga. 498 (384 SE2d 659) (1989). Reasonable alternatives short of a mistrial were clearly available. The substance of the witness’ testimony could have been explored fully on cross-examination, and the weight to be given such testimony could have been argued during closing. Brad-field did nothing which should interfere with his right “ ‘to conclude his confrontation with society through the verdict of a tribunal he might believe to be favorably disposed to his fate.’ ” Foody, supra at 668 citing United States v. Jorn, 400 U. S. 470, 486 (II) (91 SC 547, 27 LE2d 543) (1971). The jury, had it been allowed to decide the case, would have received instructions regarding the weight to be given to hearsay testimony, how to evaluate the credibility of witnesses and how to resolve conflicts in testimony.

There being no showing of the manifest necessity for the mistrial and having failed to explore alternative remedies which would have allowed the trial to go forward, the trial court erroneously denied Bradfield’s plea of double jeopardy.

Judgment reversed.

McMurray, P. J., and Blackburn, J., concur.

Lewis R. Slaton, District Attorney, Penny A. Penn, Barry I. Mortge, Assistant District Attorneys, for appellee.


text:
    A93A2556.
    DELOACH v. HEWES et al.
    (439 SE2d 94)
   Blackburn, Judge.

Appellant Robert Deloach, by and through guardian and next friend, Arthur Deloach, Jr., plaintiff in the underlying action, appeals the trial court’s order granting the defendants’ motion for summary judgment or in the alternative, motion to dismiss. The trial court determined that Deloach failed to exercise reasonable diligence in serving the defendants after the expiration of the statute of limitation.

Deloach filed the underlying action on October 15, 1992, for injuries arising out of an incident that occurred on October 19, 1990. The complaint included the defendants’ proper address. The filing occurred four days prior to the expiration of the statute of limitation. After the complaint was filed, at least two telephone calls were made to the State Court of Fulton County clerk’s office and one telephone call to the Fulton County marshal’s office to determine when the complaint was served, to no avail. Defendants were personally served with process on November 23, 1992, thirty-nine days after the filing of the action and thirty-five days after the expiration of the applicable statute of limitation. Both defendants were served at their residence by a Fulton County deputy marshal on his first attempt.

OCGA § 9-11-4 (c) provides that “the person making such service shall make the service within five days from the time of receiving the summons and complaint; but failure to make service within the five-day period will not invalidate a later service.” The marshal’s office, over which plaintiff had no control, failed to meet this statutory duty. Without notice to plaintiff, the marshal’s office did not even attempt to serve defendants for 39 days and accomplished service on the first attempt. This is not a case where unsuccessful attempts to serve the defendants put the plaintiff on notice of a problem and required him to go forward with additional efforts. “A plaintiff should not be penalized for reasonably relying upon the sheriff to fulfill his duty to serve properly addressed process papers.” Bennett v. Matt Gay Chevrolet Oldsmobile, 200 Ga. App. 348, 350, n. 2 (408 SE2d 111) (1991).

“In any case, the correct test must be whether the plaintiff showed that he acted in a reasonable and diligent manner in attempting to insure that a proper service was made as quickly as possible.” Childs v. Catlin, 134 Ga. App. 778, 781 (216 SE2d 360) (1975). In the present case, the trial court determined that Deloach failed to exercise due diligence in serving the defendants. We cannot agree. The fact that plaintiff filed his complaint within the statute of limitation, and the correct address for service coupled with the statutory duty on the marshal’s office to accomplish service within five days and plaintiff’s follow-up calls to the clerk’s office and the marshal’s office, clearly demonstrates diligence on the. part of plaintiff. The plaintiff has no authority to require the marshal’s office to perform its duties, especially where the plaintiff is unable to ascertain through inquiry to the clerk’s office or the marshal’s office whether or not defendants have been served.

Decided December 9, 1993.

Harrison & Harrison, Stephen P. Harrison, for appellant.

Downey, Cleveland, Parker, Williams & Davis, G. Lee Welborn, for appellees.

In Childs, supra, the plaintiff relied upon the Superior Court clerk’s assurance that the complaint was served on the day after it was filed. Twenty-nine days later, the plaintiff learned that the defendant had not been properly served. Thereafter, the plaintiff took steps to properly serve the defendant. The defendant was properly served 34 days after the complaint was filed and 27 days after the expiration of the statute of limitation. We reversed the trial court’s dismissal of the complaint and determined that the mere passage of time was insufficient to support dismissal. Id. at 782. In determining whether the plaintiff, in Childs, had exercised due diligence in serving the defendant, we focused on the plaintiff’s efforts after he became aware that the State had failed to properly serve defendant. Id. at 778.

In the present case, unlike Childs, the plaintiff was never able to determine the State failed to serve defendants, and again, the mere passage of time is insufficient to support the trial court’s erroneous dismissal for lack of diligence.

Judgment reversed.

McMurray, P. J., and Johnson, J., concur.


author: Birdsong, Presiding Judge.

text:
    A93A1166.
    TANTE v. HERRING et al.
    (439 SE2d 5)
   Birdsong, Presiding Judge.

T. Edward Tante IV appeals the grant of summary judgment on liability to Laura K. Herring and Bobby C. Herring in their action against him for legal malpractice. He also alleges that the trial court erred by denying his motion for summary judgment on the Herrings’ claims. Appellees filed their own affidavits, affidavits of doctors and psychologists, affidavits of their expert as to legal malpractice, and depositions — none of which have been refuted by appellant.

Tante was retained as counsel to pursue a claim for Social Security disability benefits because of a blockage of Mrs. Herring’s right carotid artery. A favorable award was issued, and both Herrings signed Tante’s request for attorney fees.

While Tante pursued the Social Security claim, Tante and Mrs. Herring began an adulterous relationship that continued for approximately two years.

The Herrings sued Tante for legal malpractice, breach of fiduciary duty, and breach of contract. They alleged that both Herrings had an attorney-client relationship with Tante, that Tante took advantage of information in Mrs. Herring’s confidential medical and psychological reports about her impaired emotional and mental functioning, that Tante took advantage of Mrs. Herring’s impaired intellectual functioning, depression and anxiety to convince her to have an affair, and that as a result of this affair Mrs. Herring suffered physical and mental harm. The Herrings allege that Tante infected Mrs. Herring with two strains of venereal disease with which she unknowingly infected Mr. Herring. Their complaint also alleged that Tante violated certain rules and standards of the State Bar of Georgia, that he breached the standard of care owed clients by attorneys, that he violated his fiduciary duties to the Herrings, that he breached his contract with them, and that the Herrings were damaged thereby. The complaint sought compensatory damages, punitive damages, and litigation expenses, including attorney fees.

Tante contends the trial court erred by granting summary judgment on liability to the Herrings and by denying his motion for summary judgment. Tante admits his extramarital relationship with Mrs. Herring, but denies he committed legal malpractice, denies any liability to the Herrings and specifically denies that he had an attorney-client relationship with Mr. Herring. On appeal he further contends the statute of limitation bars this action. Held:

1. While Tante admits an attorney-client relationship with Mrs. Herring, he denies that Mr. Herring was his client, and asserts that he represented only Mrs. Herring in her claim with the Social Security Administration. Thus, he contends he cannot be liable to Mr. Herring for legal malpractice because there could be no attorney-client relationship with Mr. Herring. See Horn v. Smith & Meroney, P.C., 194 Ga. App. 298 (390 SE2d 272).

The evidence shows, however, that both Mr. and Mrs. Herring attended meetings with Tante, that Mrs. Herring signed a contract prepared by Tante employing his firm as her “attorneys to present and prosecute for [her] and any applicable family members a claim for Social Security benefits.” Moreover, a fee request, again prepared by Tante, and signed by both Mr. and Mrs. Herring stated, in part, “we have reviewed the request for approval of the fee submitted by our attorney, T. Edward Tante, IV, in the above case. After carefully considering the same and taking into account the work Mr. Tante did for us, we respectfully request that you approve Mr. Tante’s request for $1,500 attorney fees, as we believe the same to be justified and reasonable.”

Under these circumstances, although the claim prosecuted was for Mrs. Herring’s disabilities, the documentary evidence prepared by Tante shows that he was employed to represent both Mr. and Mrs. Herring, and that he performed legal services for both. An attorney-client relationship may be created expressly by contract or inferred from the parties’ conduct. Huddleston v. State, 259 Ga. 45, 46-47 (376 SE2d 683). However, contractual formalities are not essential to the creation of such relationships. Guillebeau v. Jenkins, 182 Ga. App. 225, 229 (355 SE2d 453). Although generally the test of employment is the fee, the basic question in regard to the formation of an attorney-client relationship is whether it has been sufficiently established that advice or assistance is both sought and received in matters pertinent to the attorney’s profession. Huddleston, supra at 46-47. Compare Legacy Homes v. Cole, 205 Ga. App. 34, 35 (421 SE2d 127). Considering the evidence of record, the trial court did not err by concluding there was an attorney-client relationship between Tante and Mr. Herring. Huddleston, supra; Horn, supra.

2. Next, Tante contends he cannot be liable for legal malpractice as a matter of law because he performed in a manner consistent with the standard of care ordinarily exercised by lawyers generally under similar conditions and like circumstances, and he was successful. In our view, however, this argument takes a too narrow view of attorneys’ obligations to their clients. A successful monetary result on a claim does not mean that a lawyer cannot, per se, otherwise breach his professional responsibilities to his clients.

Although it is customary for malpractice actions to be brought after a client’s cause ends unsatisfactorily, an unsatisfactory result is not an element of a claim for legal malpractice. The elements of such action are employment of an attorney; failure of the attorney to exercise ordinary care, skill and diligence; and damages proximately caused by that failure. Guillebeau, supra; Rogers v. Norvell, 174 Ga. App. 453, 457 (330 SE2d 392). “The initial requirement for establishing liability is that there be a duty. This arises from the attorney-client relationship itself. [Cits.] Once this relationship was shown to exist, a duty devolved upon [Tante], as [the Herrings’] attorney, to use such skill, prudence, and diligence as lawyers of ordinary skill and capacity commonly possess and exercise in the performance of the tasks which they undertake.” Hughes v. Malone, 146 Ga. App. 341, 344 (247 SE2d 107). “[M]embers of all professions must exercise the degree of skill, prudence, and diligence which ordinary members of the particular profession commonly possess and exercise” (Ga. Law of Damages, p. 689, § 36-19), and Tante was “bound to the highest honor and integrity, to the utmost good faith” (Cox v. Sullivan, 7 Ga. 144, 147 (50 AD 386)) in his representation of the Herrings.

The Herrings supported their allegations with the affidavit of an attorney, which contained sufficient foundation, from which the trial court could determine the attorney was a legal malpractice expert. See McDonald v. Glynn-Brunswick Mem. Hosp., 204 Ga. App. 7 (418 SE2d 393). This expert, who indeed is generally recognized as an authority in this area of law, stated he had reviewed documents pertinent to the complaint, that in his expert opinion an attorney-client relationship was established between the Herrings and Tante, that Tante was legally, professionally and ethically responsible for his representations of the Herrings, and that a fiduciary relationship was created between Tante and the Herrings. He further stated he was familiar with the standard of care expected of attorneys in this state and that Tante’s representation of the Herrings was substandard and deviated from and breached the degree of care and skill required of attorneys in this state, generally, under similar conditions and like circumstances, and proximately caused damages to the Herrings. He further stated that because of his attorney-client and fiduciary relationships with the Herrings, Tante had a duty and obligation to represent the Herrings’ interests faithfully, honestly, and consistently; to protect their rights, interests, and properties; and to advise them promptly, fully, adequately, and honestly. The affidavit further stated that Tante’s “use of, or complete disregard of, the confidential psychological information and other privileged information gained as a direct result of his legal representation of [the Herrings] to induce Mrs. Herring into entering into an adulterous relationship constitutes legal malpractice, a breach of his contract of employment with [the Herrings], and a breach of his fiduciary relationship with [the Herrings]. Moreover, if during the course of this relationship, [Tante] knowingly transmitted a venereal disease to Mrs. Herring as alleged who in turn transmitted same to Mr. Herring as alleged, [Tante’s] conduct in so doing constitutes an additional breach of his fiduciary duties to Mr. and Mrs. Herring.”

We note that at the same time Tante admittedly was having a sexual relationship with Mrs. Herring, he was representing to the Social Security Administration that Mrs. Herring was so mentally disabled that she was incapable of working. Under the circumstances, Tante’s sexual misconduct with his client was potentially damaging to the Social Security claim. Moreover, Tante, particularly as an attorney, is charged with the knowledge (OCGA § 1-3-6) that engaging in a sexual relationship with Mrs. Herring while each was married to another, constituted the crime of adultery. OCGA § 16-6-19. See OCGA § 16-2-20.

In addition, Mrs. Herring’s affidavit stated that Tante received her psychological evaluations which stated she had organic brain damage, was depressed and anxious with feelings of insecurity, inadequacy, and inferiority, and suffered from impairment of judgment and difficulty with interpersonal relationships. Mrs. Herring’s affidavit also stated that Tante was given medical reports showing she had a severe decrease in her desire for sex. She further stated that shortly after their first meeting, Tante advised her that she would be less depressed and would feel better if she would enter into a sexual relationship with him. Tante has not rebutted these allegations.

Further, Mrs. Herring’s affidavit stated that she has incurred and continues to incur considerable expense for psychological therapy. These statements are supported by affidavits from several mental health care providers and Mr. Herring.

A physician’s affidavit stated that Mrs. Herring suffered from mild dementia, amnestic syndrome, short term memory dysfunction, and that she was physically and mentally disabled, and also stated this information was provided Tante. A psychologist stated that Mrs. Herring suffered from organic brain syndrome, and another psychologist’s affidavit stated he treated Mrs. Herring after her sexual relationship with Tante and that her primary problem was obsession with the extramarital relationship with her attorney, and in his opinion, at the time of the sexual relationship Mrs. Herring’s impulse control was diminished and her judgment was impaired. Further, he opined that the relationship with Tante was destructive to Mrs. Herring’s emotional health and the health of her marriage. Also, a clinical psychologist’s affidavit stated that Mrs. Herring was vulnerable to Tante’s advances because of her emotional and mental condition caused by the occlusion of her right carotid artery, that she had inadequate control to resist Tante’s advances, that she was not fully capable of exercising independent judgment, and that the relationship with Tante was damaging to the Herring family and emotionally devastating to Mrs. Herring. Finally, Mr. Herring’s affidavit stated that the sexual relationship between his attorney and his wife damaged the marriage and his family, and that he contracted two venereal diseases from his wife.

Thus, particularly but not exclusively considering Tante’s professionally gained knowledge of his client’s, Mrs. Herring’s, medical condition and mental status, we agree with the Herrings’ expert that Tante had the duty not to induce and engage in sexual intercourse with his client, and particularly a client who was the spouse of his other client. Additionally, the record also shows that Tante violated his duty to both his clients by misusing information concerning Mrs. Herring’s medical and psychological conditions to induce her to have a sexual relationship with him.

Although Tante is presumed to have performed legal services for the Herrings in an ordinary skillful manner (Mims v. Wardlaw, 176 Ga. App. 891 (338 SE2d 866)), his admitted conduct and the uncontradicted evidence submitted by the Herrings fully overcame this presumption. Moreover, while Tante may have been successful in securing an award from the Social Security Administration, the record establishes that as a result of his actions both of his clients were otherwise severely damaged because of his representation of them.

3. The record also supports the grant of summary judgment on the Herrings’ claim that Tante breached his fiduciary duties. Tante had a fiduciary relationship with the Herrings. OCGA § 23-2-58; Jerry Lipps, Inc. v. Postell, 139 Ga. App. 595 (229 SE2d 78). Thus, his first duty was loyalty to them and he was obligated not to put himself in a position where he had interests that were antagonistic to his clients’. Arthur v. Ga. Cotton Co., 22 Ga. App. 431 (96 SE 232). He could pursue no interest or take any act adverse to his clients’ interests or incompatible with applying his best skill, zeal, and diligence in representing them. Clyde Chester Realty Co. v. Stansell, 151 Ga. App. 357, 359 (259 SE2d 639). Because of this fiduciary relationship, Tante also had a duty to exercise the utmost good faith and loyalty to his clients, and to act solely for their benefit. Dolvin Realty Co. v. Holley, 203 Ga. 618, 622 (48 SE2d 109). As their attorney, Tante occupied a position of the highest trust and confidence, and was not allowed to promote his own interests to the injury of the Herrings. Morris v. Johnstone, 172 Ga. 598, 604-605 (158 SE 308). He was not allowed to profit for himself from the relationship or from the sensitive knowledge obtained therein to the injury of his client. Koch v. Cochran, 251 Ga. 559, 560 (307 SE2d 918). We conclude that Tante violated the fiduciary duties he owed his clients. Tante used sensitive information available to him solely because of his attorney-client relationship with the Herrings to his personal advantage and the Herrings’ disadvantage. Moreover, the evidence shows Tante engaged in an extramarital sexual relationship with one client who was the wife of his other client in the same cause, and allegedly infected his other client with venereal disease. Thus, Tante assumed an interest antagonistic to his clients and their cause, and contrary to his role as their trusted attorney. The trial court did not err by finding a breach of Tante’s fiduciary relationship and that the Herrings were entitled to recover for that breach. OCGA § 51-1-6; see generally OCGA § 9-11-56.

4. Although the Herrings’ legal expert astutely opined that Tante’s conduct constituted legal malpractice because of his deviation from the prescribed legal standards in Georgia by violating the Rules and Regulations of the Organization and Government of the State Bar of Georgia, Bar Rule 4-102, Standard 28 (knowingly using a confidence or secret of his client to the disadvantage of the client and by using a confidence or secret of his client for Tante’s advantage); Standard 30 (continuing his employment without notice to and the consent of the Herrings after his professional judgment on behalf of his clients was affected by his personal interests); Standard 45 (e) (knowingly engaging in other illegal conduct or conduct contrary to a disciplinary rule); and DR 4-401 (B) (using confidence or secrets of his client to the disadvantage of his client and to the advantage of himself without the consent of the Herrings after full disclosure), our Supreme Court recently foreclosed a claim of legal malpractice based upon these grounds. “[W]hile the Code of Professional Responsibility provides specific sanctions for the professional misconduct of the attorneys whom it regulates, it does not establish civil liability of attorneys for their professional misconduct, nor does it create remedies in consequence thereof.” Davis v. Findley, 262 Ga. 612, 613 (422 SE2d 859). However, conduct which violates the Code of Professional Responsibility may, in appropriate circumstances, also provide a basis for a claim for legal malpractice. The correct statement of the law from the cases Tante relies upon is that “standing alone” a violation of a bar standard will not support a legal malpractice claim. See East River Savings Bank v. Steele, 169 Ga. App. 9, 11 (311 SE2d 189). In this case, Tante’s conduct, when measured against the standards stated in the affidavits of the Herrings’ expert, was sufficient to state a claim of legal malpractice. Compare Roberts v. Langdale, 185 Ga. App. 122 (363 SE2d 591). Moreover, it cannot be said that an attorney, with impunity, is authorized to engage in sexual relations with his clients. See In the Matter of Lewis, 262 Ga. 37 (415 SE2d 173).

5. Finally, Tante contends the Herrings’ claim is barred by the statute of limitation. This defense was stated in Tante’s answer, but he did not seek a ruling on this defense in the trial court before the trial court’s grant of summary judgment to the Herrings. It is now too late to raise this defense. “A defendant may not avail himself of an affirmative defense which he failed to properly present.” Searcy v. Godwin, 129 Ga. App. 827, 829 (201 SE2d 670). By failing to assert this defense until after the Herrings received summary judgment on liability, he is in the same position as if the Herrings had received a judgment on the merits. Summer-Minter & Assoc. v. Giordano, 231 Ga. 601, 606 (203 SE2d 173). Thus, Tante has waived any defense of the statute of limitation he might have had.

Accordingly, we find that the trial court did not err as enumerated. OCGA § 9-11-56 (c); Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474).

Judgment affirmed.

Pope, C. J., and Andrews, J., concur.

Decided November 2, 1993

Reconsideration denied December 10, 1993

Denney, Pease, Allison, Kirk & Lomax, John W. Denney, for appellant.

Beltran & Associates, Frank J. Beltran, Simone R. Siex, for appellees.

On Motion for Reconsideration.

Tante’s motion for reconsideration contends the trial court’s grant of summary judgment on liability must be reversed because a grant of summary judgment to the plaintiffs cannot be based upon expert opinion evidence. Howard v. Walker, 242 Ga. 406, 408 (249 SE2d 45); Ginn v. Morgan, 225 Ga. 192, 193-194 (167 SE2d 393). Nevertheless, our Supreme Court has adopted the rule that “objections to expert opinion affidavits will not be entertained for the first time on appeal where such affidavits were considered by the trial judge, without objection, in ruling on the motion for summary judgment.” Bell v. Sellers, 248 Ga. 424, 426 (283 SE2d 877). Consequently, as the record in this appeal shows there was no objection below to considering the expert’s affidavits, the trial court did not err in granting summary judgment based on these affidavits, and this objection raised for the first time on appeal provides no basis for reconsideration. Bell v. Sellers, supra; Whitaker v. Trust Co., 167 Ga. App. 360, 361 (306 SE2d 329).

Further, as expert opinion evidence was not required to establish a claim for breach of fiduciary duties and Tante did not rebut the Herrings’ evidence supporting this claim, this objection in any event would not extend to the grant of summary judgment on the breach of fiduciary claim.

Tante’s motion for reconsideration based on the statute of limitation is denied for the reasons stated in Division 5 above.

Motion for reconsideration denied.


author: Pope, Chief Judge.

text:
    A93A1428.
    HABERSHAM ELECTRIC MEMBERSHIP CORPORATION v. MIZE.
    (439 SE2d 26)
   Pope, Chief Judge.

Plaintiff/appellant Habersham Electric Membership Corporation (“HEMC”) supplies electricity to chicken houses owned by defendant/appellee Larry Mize. In February 1986, an HEMC employee, while replacing an electrical meter on Mize’s farm, placed an incorrect “multiplier” on the meter. Because of this error, Mize was billed for only one-half of the kilowatt hours which he actually used from February 1986 until July 1989, when the error was discovered. HEMC notified Mize that he had been underbilled by $27,516.44, and when Mize refused to pay that amount, instituted the present action against him. The case was tried before a jury who returned a verdict for Mize. HEMC appeals following the denial of its motion for new trial.

We reverse. Although the precise issue presented appears to be one of first impression in this state, the overwhelming weight of authority from other jurisdictions holds that a utility supplier is entitled to recover against a consumer when, because of a mistake made by the utility, the consumer has been billed for less electricity than the consumer actually used; and that the defenses of accord and satisfaction and equitable estoppel, relied on by the consumer in this case, do not bar recovery by the utility. See, e.g., Holloway v. Ala. Power Co., 568 S2d 1245 (Ala. App. 1990); Memphis Light, Gas &c. Div. v. Auburndale School Sys., 705 SW2d 652 (Tenn. 1986); Sigal v. City of Detroit, 362 NW2d 886 (Mich. Ct. App. 1985); Corporation De Gestion Ste-Foy v. Fla. Power &c. Co., 385 S2d 124 (Fla. Dist. Ct. App. 3rd Dist. 1980); West Penn Power Co. v. Nationwide Mut. Ins. Co., 228 A2d 218 (Pa. Super. 1967). Most of the jurisdictions which have reached this conclusion have done so on the basis that to disallow recovery would result in discriminatory charges among consumers, a practice which is prohibited by statute in most states. See City of Wilson v. Carolina Bldrs. &c., 379 SE2d 712, 714-715 (NC App. 1989); Memphis Light &c. v. Auburndale, 705 SW2d at 654; Corporation De Gestion Ste-Foy v. Fla. Power &c. Co., 385 S2d at 126; Chesapeake & Potomac Tel. Co. of Va. v. Bles, 243 SE2d 473 (Va. 1978).

In Georgia, OCGA § 46-3-11 (a) prohibits an “electric supplier . . . from having or applying any rate, charge, or service rule or regulation which unreasonably discriminates against or in favor of (1) any member of a class of consumers as opposed to any other consumer who is or should be in the same class of consumers for such purposes, or (2) any class of its consumers as opposed to another class of consumers for such purposes, . . .” This section is specifically made applicable to electric membership corporations by OCGA § 46-3-12. In our opinion this statute evinces the public policy of this state that suppliers of electricity cannot discriminate, either for or against consumers, by charging consumers in the same class at different rates. In this case the effect of the error was to charge Mize one-half the amount for electric service which was charged to other consumers in the same class, with the result that Mize paid less than the amount other like users were required to pay for the same service. We are in agreement with the great weight of authority from other jurisdictions that public policy dictates that the consumer in this situation simply has no defense to avoid liability for underbilled services, once it is established that the consumer received the amount of service alleged by the utility, and once it is established that the consumer did not pay the full amount for the utilities provided. “ ‘[W]here a statute declares that . . . utilities must charge all customers [in a certain class] alike ... , it is a contravention of public policy to estop the utility from collecting the full amount due for utilities consumed even where the customer has been negligently underbilled.’ [Cit.]” Boone County Sand &c. Co. v. Owen County Rural Elec. &c. Corp., 779 SW2d 224, 225 (Ky. App. 1989). Based on the foregoing, this case must be remanded to the trial court for further proceedings consistent with this opinion.

Decided November 16, 1993

Reconsideration denied December 10, 1993

Adams, Ellard & Frankum, Cadman R. Kiker, Jr., for appellant.

McDonald & Cody Law Offices, Douglas W. McDonald, Sr., Phillip G. Cody, Jr., for appellee.

Jeffrey C. Stair, amicus curiae.

Judgment reversed.

Birdsong, P. J., and Andrews, J., concur.


text:
    A93A1769.
    ROBINSON v. THE STATE.
    (439 SE2d 104)
   McMurray, Presiding Judge.

Defendant was convicted of burglary (two counts), criminal trespass (one count), aggravated assault (three counts), simple assault (one count) and false imprisonment (four counts). Following the imposition of sentence and the denial of his motion for a new trial, he appealed. Held:

1. Defendant asserts the evidence was insufficient to support the aggravated assault and simple assault convictions because the evidence did not demonstrate that he could have placed the victims in reasonable apprehension of receiving a violent injury. In this regard, defendant points out that he repeatedly assured the victims that he did not intend to harm them. This assertion is wholly without merit. Defendant’s assurances notwithstanding, the evidence was more than sufficient to prove that defendant’s actions could have placed (and in fact did place) the victims in fear of a violent injury. After all, the evidence demonstrated that while fleeing the police (who tried to arrest defendant pursuant to arrest warrants) defendant broke into an apartment occupied by the victims; that he carried a knife and herded the victims into a back room; that he was extremely nervous and threatened to harm the victims if the police entered the apartment; and that the victims were scared defendant was going to hurt them. Given these facts, it cannot be said that the victims were not placed in reasonable apprehension of immediately receiving a violent injury. See McGee v. State, 165 Ga. App. 423, 425 (3) (299 SE2d 573).

Decided December 10, 1993.

Antje R. Kingma, for appellant.

J. Tom Morgan, District Attorney, Barbara B. Conroy, Robert E. Statham III, Assistant District Attorneys, for appellee.

2. At the outset of the trial, the court granted a motion in limine to prohibit the State from alluding to the fact that, following his standoff with the police, defendant agreed to surrender to his parole officer. Thereafter, the prosecutor asked one of the victims why she was chosen to be the first victim to be set free. She replied that she was sick and that “they told him he had to let somebody leave.” The prosecutor asked “Who said that?” Thereupon, the victim replied: “The cops from outside, his parole officer.” At that point, defendant moved for a mistrial. After some colloquy, the trial court denied the motion. But it instructed the jury that it was going to strike the witness’s last answer; and that the jury was to disregard it and not consider it in its deliberations. On appeal, defendant asserts the trial court erred in denying the motion for a mistrial. We disagree.

“ ‘The granting or refusing of a motion for mistrial is necessarily a matter largely within the discretion of the trial judge, and unless it is apparent that a mistrial is essential to the preservation of the right to a fair trial, the exercise of the judge’s discretion will not be interfered with. (Cits.)’ Stanley v. State, 250 Ga. 3, 4 (2) (295 SE2d 315). The circumstances of the case sub judice do not reveal an abuse of the trial court’s discretion in denying defendant’s motion for mistrial. Curative instructions were promptly given. . . .” Powell v. State, 201 Ga. App. 188, 189 (2) (410 SE2d 378). Besides, there was other evidence in the case (the fact that the police sought to arrest defendant pursuant to outstanding warrants) that lessened the prejudicial impact of the witness’ statement. See Sabel v. State, 250 Ga. 640, 644 (5) (300 SE2d 663).

Judgment affirmed.

Johnson and Blackburn, JJ., concur.


text:
    A93A1949.
    COREY v. THE STATE.
    (439 SE2d 513)
   McMurray, Presiding Judge.

Defendant Corey appeals his conviction of two counts of armed robbery, two counts of possession of a firearm during commission of a crime, and criminal use of a weapon with an altered identification number. These offenses arose in connection with the armed robberies of two convenience stores and the counts related to each robbery were severed for separate trials.

An earlier untimely appeal was dismissed and this out-of-time appeal was subsequently allowed. The robberies occurred on November 12 and 18, 1990, and the trials were held on January 28-29 and February 19, 1991. Held:

1. There was no lack of evidence authorizing defendant’s convictions. In each instance, he was identified as the perpetrator by an employee of the convenience store he robbed at gunpoint. Defendant was apprehended immediately following the November 18, 1990 robbery and it was discovered that the identification numbers had been removed from the handgun he used during the robbery. The evidence was sufficient to authorize defendant’s convictions beyond a reasonable doubt under the standard provided by Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560). See also Robinson v. State, 210 Ga. App. 278, 281 (5) (435 SE2d 718).

2. Defendant contends that the trial court erred in denying his motion to suppress a photographic line-up from which defendant was first identified as the perpetrator of the November 12, 1990 robbery. “The test of a photographic array is whether the ‘procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.’ Simmons v. United States, 390 U. S. 377, 384 (88 S. C. 967, 19 L. Ed. 2d 1247) (1968).” Thornton v. State, 238 Ga. 160, 161 (1) (231 SE2d 729).

Four items are presented by defendant as showing that the lineup was suggestive. First, defendant complains that his photograph was twice as thick as the others. In order to understand this first issue it must be explained that the line-up was submitted to the victim by referring her to six photographs contained in a book of mug shots. The photographs in the book had been glued in place and defendant’s photograph was added temporarily for purposes of the line-up by placing it over another photograph permanently glued in the book. Defendant’s photograph was thicker because it was placed over another photograph. However, there is no suggestion that this added thickness was readily apparent or had been noticed by the victim, and there is reference to a layer of plastic over the photographs which would have made any difference less discernible.

Defendant also complains that he looks older than the other individuals used in the photographic line-up. However, our examination of the line-up does not support this factual assertion.

Decided December 10, 1993.

Lorie A. Moss, for appellant.

Next, defendant complains that his photograph was placed in the lower right-hand corner of the line-up. This contention does not relate to the format by which the photographs were submitted to the victim, but apparently to the exhibit by which the State introduced the six line-up photographs into evidence at the hearing on defendant’s motion. The format of the State’s exhibit is not relevant to any material issue.

Defendant’s assertion that his photograph is the darkest of the six appears to be factually correct, but does not alone require a conclusion that the lineup was suggestive. See Taylor v. State, 203 Ga. App. 210, 211 (2) (416 SE2d 554).

Considering the totality of the circumstances, the trial court was authorized to conclude from the evidence that the photographic lineup was not impermissibly suggestive. There was no error in the admission of the evidence concerning the photographic lineup. Scott v. State, 200 Ga. App. 481, 482 (2) (408 SE2d 495); Denegal v. State, 193 Ga. App. 238 (1) (387 SE2d 434); Sparks v. State, 185 Ga. App. 225, 226 (2) (363 SE2d 631).

3. Defendant also contends that the trial court erred in denying his motion seeking to bar introduction of certain similar transaction evidence. The sole argument advanced by defendant in support of this enumeration of error is that the State failed to specify the purpose for the introduction of this evidence, so as to show that it was not introduced to raise an improper inference as to defendant’s character, as required under the first prong of the applicable test as stated in Williams v. State, 261 Ga. 640, 642 (409 SE2d 649). However, defendant failed to raise this objection before the trial court, the trial objections being directed only to other aspects of this test for admissibility. Under these circumstances the issue now argued by defendant was not preserved for consideration on appeal. Self v. State, 208 Ga. App. 447, 448 (1) (431 SE2d 126); Kincer v. State, 208 Ga. App. 360 (1) (430 SE2d 597). And, even if the issue were properly raised, it would lack merit in view of the prosecuting attorney’s statement that the similar transaction evidence would be used “to show bent of mind, modus operandi and all the other reasons that allows for the admissibility of similar crime.”

Judgment affirmed.

Johnson and Blackburn, JJ., concur.

T. Joseph Campbell, District Attorney, for appellee.


text:
    A93A2251.
    CLAFFEY v. THE STATE.
    (439 SE2d 516)
    Decided December 10, 1993.

      James W. Bradley, for appellant.
   McMurray, Presiding Judge.

Pursuant to a negotiated plea agreement in which she. reserved a right to appeal from the denial of a motion to suppress evidence, defendant Sandra Claffey pleaded guilty to possession of cocaine (Count 1) and possession of marijuana (Count 2). This appeal followed. Held:

In her sole enumeration of error, defendant asserts the trial court erred in denying her motion to suppress evidence that was seized pursuant to a search warrant. More specifically, defendant attacks the search warrant, asserting it was issued without probable cause because it was based on the tip of an anonymous citizen. Defendant’s enumeration is wholly without merit.

The affidavit upon which the warrant issued demonstrated that the police received a tip from one of defendant’s neighbors who surmised that drugs were being sold from defendant’s house; that acting upon the tip, the police set up surveillance in front of defendant’s house; that the police observed the comings and goings of various individuals who entered defendant’s house, stayed for a few minutes, and left; that the police stopped one of the automobiles that made a trip to defendant’s house, interviewed the occupants, and asked permission to search the automobile; that a consent search of the automobile revealed a quantity of marijuana; and that the occupants said they purchased the marijuana from a white female at the house in question. The affidavit also demonstrated that after checking various records, the police learned that Jeff Claffey, a convicted felon, maintained water service at the house; and that Jeff Claffey filed a joint income tax return with defendant, showing the house to be their home address.

Even a cursory review of the affidavit demonstrates that the search warrant was not issued on the basis of an anonymous tip. On the contrary, the warrant was issued on the basis of a complete police investigation and a “totality of the circumstances” which revealed probable cause for a search. See Ferrell v. State, 198 Ga. App. 270, 271 (1) (401 SE2d 301); Butler v. State, 192 Ga. App. 710, 712 (386 SE2d 371). Cf. State v. Teague, 192 Ga. App. 839 (386 SE2d 718).

Judgment affirmed.

Johnson and Blackburn, JJ., concur.

Robert E. Keller, District Attorney, Gina C. Naugle, Assistant District Attorney, for appellee.


text:
    A93A2489.
    In the Interest of S. R. B., a child.
    (439 SE2d 105)
    Decided December 10, 1993.

      Hemmann & Hemmann, Paul E. Hemmann, for appellant.

      Tommy K. Floyd, District Attorney, Gregory A. Futch, Kelley S. Powell, Assistant District Attorneys, for appellee.
   McMurray, Presiding Judge.

S. R. B. was adjudicated delinquent because he committed an act which, if it had been committed by an adult, would constitute rape. He appeals, asserting the evidence was not sufficient to support the juvenile court’s determination that S. R. B. was delinquent. Specifically, S. R. B. asserts that the evidence did not demonstrate that the victim was raped and that, even if it did, the evidence did not demonstrate that he participated in the crime. Held:

The victim testified that one Michael Banks forcibly placed his penis in her vagina against her will for a few seconds and that S. R. B. helped Banks to do so by holding her hands down. This evidence was more than sufficient to support the juvenile court’s determination that S. R. B. was delinquent because he committed an act which would constitute rape if it had been committed by an adult. See Jackson v. State, 157 Ga. App. 604 (1) (278 SE2d 5) (penetration of female sex organ by male sex organ need be only slight to constitute rape); Ceaser v. State, 184 Ga. App. 599 (362 SE2d 156) (rape conviction is proper where defendant held down victim and his companions raped her). Although some contradictory evidence may have been presented, “ ‘the credibility of the witnesses is for the judge’s determination, where the trial judge hears the case without intervention of a jury.’ [Cit.]” In the Interest of J. T. M., 200 Ga. App. 636, 637 (409 SE2d 256). See also Perry v. State, 154 Ga. App. 385 (268 SE2d 747) (testimony of victim is itself sufficient to sustain conviction of rape).

Judgment affirmed.

Johnson and Blackburn, JJ., concur.


author: Beasley, Presiding Judge.

text:
    A93A0951, A93A0952.
    MOORE v. AMERICAN SUZUKI MOTOR CORPORATION; and vice versa.
    (439 SE2d 43)
   Beasley, Presiding Judge.

This is a continuation of Moore v. American Suzuki Motor Corp., 203 Ga. App. 189 (1) (416 SE2d 807) (1992).

Moore, as successor and former chief executive officer and sole shareholder of Tony Moore Buick-Suzuki-Daihatsu, Inc., sued American Suzuki Motor Corporation, seeking compensatory and punitive damages. He alleged that Suzuki breached their contract and violated §§ 10-1-651 and 10-1-653 of the Georgia Motor Vehicle Franchise Practices Act (OCGA § 10-1-620 et seq.) by: (1) arbitrarily refusing to approve the transfer of his franchise, (2) wrongfully terminating his franchise, and (3) refusing to buy back equipment and inventory. Moore demanded a jury trial.

As noted in the prior appeal, after presentation of Moore’s case, the trial court granted Suzuki’s motion for directed verdict. The court found no evidence that Suzuki had arbitrarily refused to approve transfer of the franchise or terminated it wrongfully or without good cause, because apparently Moore violated the parties’ franchise agreement and OCGA § 10-1-653 by not providing prior written notice of his intent to transfer the franchise; because there was evidence that the proposed location of the transferred franchise was in a less favorable market; and because Moore violated the terms of his franchise agreement and OCGA § 10-1-651 by dissolving the corporation that held the franchise, by permitting his business license to lapse, and by closing the franchise.

We reversed, holding that there was a conflict in the evidence as to whether Suzuki’s refusal to approve transfer of the franchise and its termination of the franchise were arbitrary or for good cause. We held that although Suzuki claims Moore’s own evidence shows that he violated the franchise agreement and OCGA § 10-1-653 by not giving timely notice of his intention to transfer the franchise, or that he took action which would warrant termination of the franchise under the franchise agreement and OCGA § 10-1-651, these are jury issues.

At retrial, voir dire of prospective jurors was not reported, by agreement of the parties. After a jury was struck, the remaining members of the venire were excused and the trial was recessed. Prior to making an opening statement at the recommencement of the proceedings the following day, Suzuki’s attorney filed a motion under Batson v. Kentucky, 476 U. S. 79 (106 SC 1712, 90 LE2d 69) (1986), and Edmonson v. Leesville Concrete Co., 500 U. S. _ (111 SC 2077, 114 LE2d 660) (1991). He requested that Moore’s attorney provide a racially neutral explanation for having used two of his six peremptory challenges in striking the only two black members of the venire in the retrial of this case. Suzuki’s attorney also stated that Moore’s attorney had used a peremptory challenge to strike the only black person from the venire at the original trial.

The court opined that this motion was not timely but stated that it would give counsel an opportunity to explain why he struck the two prospective jurors, Mr. Butler and Mr. Livsey. Counsel responded that race was not an issue and that he believed that Ms. Williams, who was on the jury, was a non-Caucasian. With respect to why he struck Mr. Livsey, counsel stated, “I believe the strongest reason was because he worked for a corporation that has its home office in France. And again, that’s not — that was one factor. The biggest factor is, I thought [other named jurors] were better jurors better qualified to hear this case. Those are the people that I felt most comfortable with.”

With respect to why he struck Mr. Butler, counsel stated, “Again, I just felt like his background was not one of marketing or did not have a real — the educational background that I felt comfortable with as far as this case was concerned. ... I just didn’t feel comfortable with Mr. Butler in the way he responded, other than I thought the other jurors were more of the area that we wished to have review this case, in terms of their training, and experience, and for being business owners, and that sort of thing.”

At the close of all the evidence, Suzuki moved for directed verdict, which was denied. The court instructed the jury on the criteria for determining plaintiff’s entitlement to punitive damages under both the Tort Reform Act of 1987 (OCGA § 51-12-5.1) and the Motor Vehicle Franchise Practices Act (OCGA § 10-1-623 (b)). The verdict awarded Moore $270,220.13 in compensatory damages based upon the finding that Suzuki’s decision to refuse to agree to the proposed sale was arbitrary, that Suzuki did not have good cause to terminate the franchise, and that Moore was entitled to fair and reasonable compensation for supplies, parts, equipment, furnishings and special tools. The jury also found that plaintiff was entitled to punitive damages. Pursuant to OCGA § 51-12-5.1 (d), the trial resumed to resolve the issue of punitive damages. As to this item, the jury awarded $500,000.

The court entered judgment for the compensatory damages but noted in the judgment that OCGA § 10-1-623 (b) states that “the court may award punitive damages.” In the final judgment, the court awarded $500,000 in punitive damages, with the caveat that if it is determined that the court and not the jury should set them, $50,000 is awarded.

Suzuki moved for directed verdict, j.n.o.v., or in the alternative, new trial.

The court granted the motion for j.n.o.v. on the issue of whether Suzuki arbitrarily refused to approve transfer of the franchise, on the ground that OCGA § 10-1-653 (a) requires a new motor vehicle dealer to give the franchisor prior written notice of the proposed change in ownership or sale of its principal assets, and at the time the alleged “prior written notice” was delivered to Suzuki the corporate entity which was Suzuki’s authorized dealer had been dissolved.

The court also granted Suzuki’s motion for j.n.o.v. on the issue of buy-back of inventory and other items, finding that Moore failed to “convey or transfer title and possession” to Suzuki, a condition precedent to recovery under OCGA § 10-1-651 (f).

The court denied the motion in regard to the jury’s verdict in favor of Moore for Suzuki’s refusal to agree to the proposed sale of the franchise, Suzuki’s termination of Moore’s franchise without good cause, and the punitive damages award.

Suzuki also asserted as a ground for new trial that a peremptory strike of a potential juror by Moore was based on racial motivations. The court rejected this ground, finding that Moore struck the potential juror because of his employment with a foreign corporation, which is a racially neutral reason. The court also ruled that Suzuki’s challenge to the jury selection process was not timely made.

After the record was transmitted to this court, Suzuki requested the trial court conduct a hearing pursuant to OCGA § 5-6-41 (f) to resolve differences between the parties as to what transpired during voir dire so as to make the record conform to the truth. This was done and the court stated that twenty-four individuals were empaneled as prospective jurors; twenty one were Caucasian, and three (Livsey, Butler, and Williams) were African-American; in exercising his six peremptory strikes, plaintiff struck Butler and Livsey; the twelve individuals who were empaneled as jurors to try the case included eleven Caucasians and one African-American, Williams; Freeman, whom Moore struck, conveyed during voir dire that he is director of marketing for Equifax; Williams, who served as a juror, indicated during voir dire that she was employed by a Chinese foreign corporation. The transcript of the hearing and court order were transmitted to this court as a supplemental record.

In Case No. A93A0951, Moore contends that the trial court erred in granting Suzuki’s motion for j.n.o.v. as to jury findings that Suzuki arbitrarily refused to approve transfer of the franchise and buy-back of Suzuki items and in substituting its award of punitive damages for that of the jury. In Case No. A93A0952, Suzuki contends that the trial court erred in failing to grant its Batson motion, in awarding punitive damages, and in denying its motion for j.n.o.v. in that its termination of the franchise was justified on statutory and contractual grounds.

1. The court erred in granting Suzuki’s motion for j.n.o.v. as to the jury’s finding that Suzuki arbitrarily refused to approve transfer of the franchise on the ground that the authorized corporate dealership had been dissolved.

It was expressly held in the prior appeal that there was a conflict in the evidence as to whether Suzuki’s refusal to approve transfer of the franchise was arbitrary. 203 Ga. App. at 190 (1). It was specifically noted that one of the grounds upon which the trial court had granted Suzuki’s motion for directed verdict was that Moore had violated the terms of the franchise by dissolving the corporation. Id. at 189.

“Any issue that was raised and resolved in the earlier appeal is the law of the case and, notwithstanding appellant’s request for reconsideration, is binding. [Cit.]” King Cotton, Ltd. v. Powers, 200 Ga. App. 549 (1) (409 SE2d 67) (1991). “ ‘When a case is brought to this court and the judgment of the trial court is reversed, all questions as to pleadings and the effect of evidence adjudicated by this court are binding as the law of the case on this court and, on a second trial of the case, on the court below, unless additional pleadings and evidence prevail to change such adjudications.’ [Cit.]” Parker v. State, 76 Ga. App. 238 (2) (45 SE2d 692) (1947).

Although the prior appeal was from the grant of Suzuki’s motion for directed verdict and this appeal follows the court’s entry of judgment on a jury verdict, there were no additional pleadings or evidence concerning the issues raised, and Suzuki made no contrary showing. For these reasons, the court did not err in denying Suzuki’s motion for j.n.o.v. on the question of whether its termination of the franchise was justified.

2. The court erred in granting Suzuki’s motion for j.n.o.v. as to the jury’s finding that Moore was entitled to recover damages for losses suffered from Suzuki’s refusal to repurchase inventory and other items.

Both Moore and one of Suzuki’s witnesses testified that Suzuki’s offer to purchase these items was in an amount less than that required by state law. Another Suzuki witness testified otherwise.

Former OCGA § 10-1-651 (f) (2) stated that the required compensation shall be paid by the franchisor “within 90 days of the effective date of termination, cancellation, or non-renewal, provided the dealer has clear title to the inventory and other items or is able to convey such title to the franchisor and does convey or transfer title and possession of the inventory and other items to the franchisor.”

In the opinion of the trial court, Moore failed to perform a condition precedent to Suzuki’s performance by not conveying or transferring title and possession to Suzuki. There was evidence that Suzuki failed to perform a condition precedent to Moore’s performance by refusing to pay the compensation for the items required by OCGA § 10-1-651 (f). A j.n.o.v. was unauthorized because there is evidence to support the verdict. Maloy v. Planter’s Warehouse &c. Co., 142 Ga. App. 69, 72 (2) (234 SE2d 807) (1977).

3. The court was authorized to substitute its award of punitive damages for that of the jury.

OCGA § 10-1-623 (b) provides, “If the franchisor engages in aggravated or continued multiple intentional violations of a provision or provisions of this article, the court may award punitive damages in addition to other damages authorized under this part.” It thus contemplates an award of punitive damages by the court and not the jury. Compare OCGA § 9-15-14 (f): “An award of reasonable and necessary attorney’s fees or expenses of litigation under this Code section shall be determined by the court without a jury. . . .” Compare also OCGA § 51-12-5.1 (d) (2): “It shall ... be the duty of the trier of fact to set the amount to be awarded [as punitive damages]. . . .” Moreover, the issue of punitive damages should not have been submitted to the jury under OCGA § 51-12-5.1, inasmuch as Moore has not charged Suzuki with commission of a tort.

4. The court did not err in denying Suzuki’s Batson/Edmonson motion.

Courts must entertain a challenge to a private litigant’s racially discriminatory use of peremptory challenges in a civil trial. Strozier v. Clark, 206 Ga. App. 85, 86 (2) (424 SE2d 368) (1992). “[A] challenge to the alleged use of racially discriminatory peremptory challenges in a civil trial under Edmonson should be raised no later than would preserve the opportunity to correct any violation without resetting the trial.” Calhoun v. Purvis, 206 Ga. App. 565, 568 (2) (425 SE2d 901) (1992). Here, as in Calhoun, “the latest time would have been before the jury selected and the jurors not selected were released.” Id.

However, “[a]s in [State v.] Sparks[, 257 Ga. 97, 98 (355 SE2d 658) (1987)], we will not reject the Batson/Edmonson claim as untimely ‘because there have been no judicial guidelines regarding the time and manner in which such a claim is to be presented, and because [defendant’s] motion in this regard was made relatively promptly in the course of the proceedings.. . .’ ” Id. Moore’s case was tried in August 1992, before the November decision in Calhoun. In that case, the jurors selected had been released for the day and the jurors not selected were released altogether. The panel in Moore’s case had already been released when he challenged the selection. This being a comparable situation, the issue is addressed.

Under Batson, “[t]he [complaining party] has the burden to complete the record to establish a prima facie case with information revealing ‘the racial composition of the panel from which the jury was selected, the racial breakdown of the strikes of both parties, and the racial composition of the resulting jury.’ [Cit.]” Shaw v. State, 201 Ga. App. 438, 439 (1) (411 SE2d 534) (1991). If a party can establish a prima facie case, the other party must explain his exercise of such challenges and demonstrate that racially neutral criteria prompted their exercise. Gamble v. State, 257 Ga. 325 (2) (357 SE2d 792) (1987). The determination of whether plaintiff carried his burden of proving that the disproportionate exclusion of black jurors was not the result of racial animus requires a consideration of counsel’s questioning of prospective jurors on voir dire examination, which can be an important factor in determining whether peremptory challenges were exercised in a racially discriminatory fashion. Gamble v. State, supra, 257 Ga. at 327-330 (6). “The explanation offered for striking each black juror must be evaluated in light of the explanations offered [by] the [party’s] other peremptory strikes, and, as well, in light of the strength of the prima facie case.” Id. at 327 (5). The trial court then must determine if a case of purposeful discrimination has been established. Burgess v. State, 189 Ga. App. 790, 793 (4) (377 SE2d 543) (1989). The trial court’s findings are entitled to great deference and will be affirmed unless clearly erroneous. Gamble, supra at 327.

Decided November 22, 1993

Reconsideration denied December 13, 1993

Webb, Tanner & Powell, Anthony O. L. Powell, Ralph L. Taylor III, Robert J. Wilson, for appellant.

According to the trial court’s findings, Moore’s attorney utilized one-third or 33.3 percent of his peremptory challenges (two out of six) to remove two-thirds or 66.7 percent of the African-Americans (two out of three) from a venire jury panel in which one-eighth or 12.5 percent (three out of twenty four) were African-Americans. Although this might constitute a prima facie case, it is not a strong one. See Durham v. State, 185 Ga. App. 163, 166 (3) (363 SE2d 607) (1987); compare Randolph v. State, 203 Ga. App. 115 (3) (416 SE2d 117) (1992). Voir dire examination was not reported. The trial court was aware of all that transpired during voir-dire questioning but we are not. This case, unlike others wherein Batson challenges have been upheld, had no racial overtones. Compare Congdon v. State, 262 Ga. 683 (424 SE2d 630) (1993); Ford v. State, 262 Ga. 558, 560, n. 2 (423 SE2d 245) (1992); Gamble v. State, supra.

Under these facts, the trial court’s finding that the Batson challenge is without merit is not clearly erroneous.

Judgment in Case No. A93A0951 affirmed in part and reversed in part. Judgment in Case No. A93A0952 affirmed.

Cooper and Smith, JJ., concur.

Alston & Bird, T. Michael Tennant, Andrew M. Gibson, for appellee.

       OCGA § 10-1-651 was amended in 1990 and 1991 following the events in this case. In this opinion, we refer to the former Code section.