author: Blackburn, Judge. Andrews, Chief Judge,

text:
    A97A2029.
    REDDING et al. v. TANNER et al.
    (498 SE2d 156)
   Blackburn, Judge.

The trial court granted summary judgment to defendant Tanner d/b/a TLC Home Inspections (Tanner) in the underlying action for negligent inspection of the home the plaintiffs, David and Janie Red-ding, were purchasing. The Reddings appeal.

In reviewing the grant or denial of summary judgment, this Court conducts a de novo review of the evidence. Goring v. Martinez, 224 Ga. App. 137, 138 (2) (479 SE2d 432) (1996); Gaskins v. Hand, 219 Ga. App. 823 (466 SE2d 688) (1996). Viewing the evidence in favor of the Reddings, as nonmovants, seeLau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991), it establishes that the Reddings entered into a Purchase and Sale Agreement for the purchase of a house owned by Marguerite Thurmond. Thereafter, Redding contacted Tanner by telephone and hired him to perform a visual, structural, and mechanical inspection of the house.

On August 26, 1995, Tanner went to the property and spent approximately three hours inspecting the house. The house had one story extensions on each end and was two stories in the center section. The Reddings, as well as Thurmond, were at the house during the inspection. When Tanner arrived, he had no ladder with him and was asked by Redding how he was going to inspect the roof area. Tanner had binoculars and told Redding he would use those for the roof and eaves inspection. After the inspection, Tanner sat down with the Reddings and Thurmond and orally described the results of his inspection, including areas of rotted wood on the home’s exterior and other minor problems. No mention was made of the cracks in the gables. Although Tanner requested payment that day, Redding did not have a check. Tanner agreed to give the written report to Jones, the realtor, which he did later that same day, and Redding agreed to mail Tanner a check.

On October 21, 1995, Redding got on the roof of the home to clean his gutters and noticed the substantial vertical cracks in the brick covering the gables. It is the $27,000 cost of repairing these cracks as well as some water damage in a bathroom which was sought from Tanner in this suit.

1. The trial court premised its grant of summary judgment on the existence of the waiver of liability clause in the written report. Such report contained three pages of “Terms and Conditions of the Inspection,” including the following: “This inspection and report does not cover all aspects, even of structural conditions. Neither TLC Home Inspections nor the inspector shall be liable for mistakes, omissions, or errors in judgment. This limitation of liability shall include and apply to all consequential damages, . . . and property damage of any nature. This company and the inspector assume no responsibility for the cost of repairing or replacing any unreported defects or conditions.”

The trial court relied upon Brainard v. McKinney, 220 Ga. App. 329 (469 SE2d 441) (1996), which is not binding precedent as it is physical precedent only. Furthermore, it is inapplicable to the present case because therein, at the time of the inspection, the home purchaser had signed a written contract which contained a waiver clause. While Brainard held that such a clause is enforceable as part of a written contract and not void as against public policy, there is no dispute in the present case that the written document was prepared after the inspection and the oral agreement between Redding and Tanner that it be done. Further, in this case, the document was never signed by Redding. While Tanner deposed that he told Redding in the telephone call that his liability was limited to the $200 cost of the inspection, Redding disputes that and summary judgment cannot be premised on this disputed fact. Therefore, summary judgment was improper.

2. The dissent relies on the doctrine of avoidable consequences, finding that because Redding knew that Tanner did not go onto the roof to inspect the gables, he failed to exercise ordinary care to protect himself from Tanner’s negligence. However, this presumes that the owner knew that it was necessary for the inspector to go up on the roof to inspect the roof and eaves notwithstanding the expert’s statement that he would be able to inspect the roof with his binoculars. The Reddings hired Tanner because of his expertise in inspecting homes. The Reddings were entitled to rely upon the expert inspector to do that which was necessary to properly inspect the property.

Under the dissent’s analysis, an individual who hires an expert to perform a home inspection is barred from recovering from such expert for a negligent inspection where the individual happened to be on the premises when the inspection was performed. The lack of expertise by the person employing an expert is the very basis for the employment. The dissent would find that such a person is charged with knowledge of what the expert must do to accomplish the inspection for which the expert was hired, and that a non-expert cannot rely upon the representations of the expert inspector that he has done what is required to appropriately complete the inspection.

Because genuine issues of material fact remain, the trial court erred in granting Tanner’s motion for summary judgment.

Judgment reversed.

McMurray, P. J., Pope, P. J., Beasley, Johnson and Smith, JJ., concur. Andrews, C. J., concurs in part and dissents in part.

Andrews, Chief Judge,

concurring in part and dissenting in part.

As noted in the majority, this Court conducts a de novo review of the evidence in considering summary judgment grant of denial. Goring v. Martinez, 224 Ga. App. 137 (479 SE2d 432) (1996); Gaskins v. Hand, 219 Ga. App. 823 (466 SE2d 688) (1996). Additionally, the grant of summary judgment will be affirmed on appeal if it is right for any reason. Deese v. NationsBank, 222 Ga. App. 275, 277 (1) (474 SE2d 18) (1996). Although I concur in Division 1 of the majority, I must respectfully dissent because I believe that, given the uncontested facts, Tanner was entitled to summary judgment on the issue of proximate cause and, therefore, the trial court’s judgment was correct for that reason.

In addition to the facts set out in the majority, viewing the evidence in favor of the Reddings, the following facts are pertinent. Part of the Purchase and Sale Agreement signed by the Reddings was a Seller’s Property Disclosure Statement which had been completed by Ms. Thurmond. Under “Structural Items,” subsections (a) and (b) asked if Ms. Thurmond was aware “of any past or present movement, shifting, deterioration, or other problems with walls or foundation” or “any past or present cracks or flaws in the walls or foundations,” to which she responded affirmatively. The exterior walls of the house, including the gables on the second floor, were brick. Substantial vertical cracks in the brick on the gables were the basis for the Red-dings’ claim of negligent inspection.

Mr. Redding made no personal inspection of the home before purchasing it, and when Tanner arrived to conduct the inspection, Mr. Redding did not advise him of any specific problem areas which he wanted inspected, such as those designated by Thurmond. Red-ding was aware Tanner had no ladder and intended to use binoculars for the roof and eaves inspection.

“ ‘Except in plain, palpable and undisputed cases where reasonable minds cannot differ as to the conclusions to be reached, questions of negligence, proximate cause, including the related issues of foreseeability, assumption of risk, lack of ordinary care for one’s own safety, lack of ordinary care in avoiding the consequences of another’s negligence, contributory and comparative negligence are for the jury.’ [Cit.] The proximate cause requirement constitutes a limit on legal liability; it is a policy decision that for a variety of reasons, such as an intervening act, the defendant’s conduct and the plaintiff’s injury are too remote for the law to countenance recovery. [Cit.]” Stegall v. Central Ga. E.M.C., 221 Ga. App. 187, 190 (2) (470 SE2d 782) (1996).

“The doctrine of ‘avoidable consequences’ does not rest upon the idea that defendant is relieved of any duty toward plaintiff, but denies recovery for any damages which could have been avoided by reasonable conduct on plaintiff’s part. Osburn v. Pilgrim, 246 Ga. 688, 695 (273 SE2d 118) (1980). Avoidance of the consequences [OCGA § 51-11-7] involves the failure to take action to overcome defendant’s negligence after it is actually discovered by plaintiff or might have been discovered by plaintiff’s exercise of ordinary care. Lanier v. Turner, 73 Ga. App. 749, 753 (38 SE2d 55) (1946).” Newman v. Collins, 186 Ga. App. 595, 596 (1) (367 SE2d 866) (1988) (physical precedent).

Here, assuming Tanner’s negligence in not inspecting the gables, Redding was aware that Tanner was not going onto the roof and would not be able to adequately inspect the gables area or, arguably, the roof. Redding at this point had been advised by Thurmond of settling and cracking problems with the house, and knew or should have known of the need to fully inspect all walls and foundations. Instead of insisting that Tanner go onto the roof or going himself before committing to purchase a $233,500 house, Redding accepted this failure to properly inspect and did not take any other steps to protect himself from defects in the roof and gables area. Therefore, because the evidence establishes that the Reddings, by the exercise of ordinary care, could easily have prevented the harm to themselves which they say resulted from Tanner’s failure, they were not entitled to recover from Tanner, Winn-Dixie Stores v. Nichols, 205 Ga. App. 308, 311 (3) (422 SE2d 209) (1992), and I believe summary judgment was rightly entered for this reason.

Decided March 17, 1998.

Bush, Crowley, Leverett & Leggett, J. Wayne Crowley, for appellants.

Sell & Melton, Jeffrey B. Hanson, for appellees.

       The triangular wall section at the ends of a pitched roof, bounded by the two roof slopes and the ridge pole. American Heritage Dictionary (2nd College ed. 1985), p. 543.

       A plaintiff may not recover, even from the original contractor/seller, for injuries caused by construction defects which were discoverable upon reasonable inspection. Florence v. Knight, 217 Ga. App. 799, 800 (459 SE2d 436) (1995).


source: Caselaw Access Project

author: Pope, Presiding Judge. BLACKBURN, Judge,

license: Public Domain

text:
    A97A2035.
    HARDY et al. v. TANNER MEDICAL CENTER, INC. et al.
    (499 SE2d 121)
   Pope, Presiding Judge.

On the morning of September 4, 1987, 13-month-old Kristy Hardy awoke congested and feverish. Kristy’s parents, who are the plaintiffs in this case, took her to Parkway Regional Hospital, where Kristy’s temperature was recorded at 102 degrees. Plaintiffs were instructed to take Kristy home to rest, but instead, they went to her grandmother’s house and ran errands with Kristy. When plaintiffs and Kristy finally arrived home at approximately 6:30 p.m., Kristy quit breathing. After her mother resuscitated Kristy, an ambulance took her to defendant Tanner Medical Center, Inc.

At Tanner, Kristy originally was seen by an emergency room physician. Thereafter, she was examined by defendant Dr. Eric Baret. Baret admitted Kristy for the night. When Kristy began having trouble breathing again, she was transferred to the intensive care unit, where she died early the next morning.

Pursuant to Kristy’s death, plaintiffs filed a medical malpractice action against Tanner and Baret. During a jury trial, Tanner twice moved for a directed verdict as to its liability. The trial court reserved ruling on Tanner’s motions. Thereafter, the jury returned a defense verdict. Subsequently, the trial court entered judgment on the jury’s verdict in favor of Tanner and Baret. It also granted Tanner’s motions for a directed verdict. Following the denial of their motion for a new trial, plaintiffs appeal. We affirm.

1. During trial, plaintiffs’ expert witness, Dr. Weber, was allowed to show the jury a photocopied textbook picture of an x-ray of a person with an endotracheal tube placed in the person’s airway in order to permit Weber to demonstrate to the jury how an x-ray of a properly placed tube should look. Plaintiffs contend that the trial court .committed reversible error in failing to further allow plaintiffs to place the photocopy in evidence for the jury’s review because it was relevant to their contention that Baret had improperly placed an endotracheal tube in Kristy’s airway. We cannot agree. The trial transcript reflects that the photocopy was merely illustrative, and there is no evidence that it depicted the only proper placement of an endotracheal tube. Additionally, the photocopy was cumulative of Dr. Weber’s expert testimony in the case. Under such circumstances, there was no abuse of discretion in the trial court’s refusal to allow the photocopy to be placed into evidence. Wood v. Browning-Ferris Indus., 206 Ga. App. 707, 708 (3) (426 SE2d 186) (1992).

2. The record in this case demonstrates that the trial court did not qualify prospective jurors with regard to whether they had any employee relationship with Tanner. Plaintiffs contend that because they had requested such qualification prior to jury voir dire in their proposed pre-trial order and orally, they are entitled to a new trial. There is no support for this contention. A review of plaintiffs’ proposed pre-trial order, which never actually was entered, demonstrates no request on plaintiffs’ part to have prospective jurors qualified regarding any employee relationship with Tanner. The transcript in this case likewise contains no such request. And plaintiffs’ attempt to supplement the record with affidavits from their attorneys stating that an oral request, for the above qualification was made prior to jury voir dire does not comply with the dictates of OCGA § 5-6-41 (f), and thus creates no record evidence for purposes of this appeal.

In the absence of record evidence of a request to have prospective jurors qualified as to any employment relationship they might have with Tanner, we conclude that the trial court did not err in failing to blanketly qualify prospective jurors on that matter. See Seaboard Coast Line R. Co. v. Smith, 131 Ga. App. 288, 291 (1) (b) (205 SE2d 888) (1974). Instead, we further conclude that it was left to the parties to inquire into the matter, and upon finding that a prospective juror had such a relationship, move the court to remove the potential juror for cause, if that was desired. See Daniel v. Bi-Lo, Inc., 178 Ga. App. 849, 850-852 (1) (344 SE2d 707) (1986).

3. Plaintiffs’ contention that they are entitled to a new trial based on the make-up of the jury venire, which they claim was heavily weighted with former and current employees of Tanner, is merit-less. The record fails to demonstrate that plaintiffs ever objected below to the jury list or the venire, nor did they challenge the array. Under such circumstances, plaintiffs have waived the right to do so now. Scott v. State, 243 Ga. 233, 234 (2) (253 SE2d 698) (1979).

4. We reject plaintiffs’ contention that the trial court committed reversible error in failing to grant their request to strike juror Vicky Scudder for cause. During voir dire, Scudder testified that she had worked for Tanner approximately 19 years earlier, not that she was a present employee of Tanner. Therefore, the trial court was not required by our holding in Daniel to strike her for cause. See 178 Ga. App. at 850-852 (1). While it is true that Scudder initially stated that she might not be able to be totally impartial in deciding the case, upon further inquiry, she indicated that she could listen to the evidence in the case and that she would be very fair in doing so. She also indicated that she had no leanings in favor of one party or the other and that she would do her best to make a decision based on the evidence presented at trial. Additionally, she stated that she did not believe she would be persuaded one way or the other by the fact she had once worked for Tanner so many years ago.

“A juror is not disqualified if he [or she] can lay aside whatever opinions or impressions he [or she] may have had and decide the case based upon the evidence presented in court.” Spivey v. State, 253 Ga. 187, 196 (6) (d) (319 SE2d 420) (1984). Furthermore, the trial court is in the best position to determine a prospective juror’s credibility regarding such matters, and its decision regarding whether to retain or dismiss a juror is given great deference. Cohen v. Baxter, 267 Ga. 422, 423 (1) (479 SE2d 746) (1997). We will reverse a trial court’s decision in matters of this type only upon a showing of manifest abuse of discretion. Hill v. Hosp. Auth. of Clarke County, 137 Ga. App. 633, 636 (1) (b) (224 SE2d 739) (1976). Based on all of Scudder’s responses to voir dire in this case, we find no manifest abuse of discretion in the trial court’s refusal to strike her for cause.

5. We also find no manifest abuse of discretion in the trial court’s refusal to strike juror Glenda Williamson for cause. Contrary to plaintiffs’ contention, there is no more than mere speculation that Williamson was an employee of Tanner. And while she stated that she knew a pathologist that might testify, and upon initial inquiry, indicated that she might have a tendency to believe what he said, she later agreed that she could listen to all the witnesses and render a truthful verdict in the case. Under such circumstances, her dismissal for cause was not required. See Foster v. State, 248 Ga. 409, 410-411 (3) (283 SE2d 873) (1981); Taylor v. State, 243 Ga. 222, 224 (2) (253 SE2d 191) (1979); Seaboard Coast Line R. Co., 131 Ga. App. at 291 (1) (b).

6. Plaintiffs contend that the trial court committed reversible error by giving the jury multiple charges on sympathy and plaintiffs’ burden of proof. We disagree. It is undisputed that the charges at issue were accurate statements of the law. They also made sense in the context of the sentences before and after them, and the sympathy charges were made applicable to all the parties. Although there was some repetition, this repetition, when viewed in the context of the entire jury charge, appears to us unlikely to have prejudiced plaintiffs. Absent prejudice, no reversible error exists. Smith v. Godfrey, 155 Ga. App. 113, 115 (5) (270 SE2d 322) (1980).

7. Pursuant to Baret’s request, the trial court instructed the jury “that a mere difference in view between physicians as to techniques to be employed by them ... is insufficient in and of itself to support an award of damages. . . .” Plaintiffs contend that by giving this instruction, the trial court committed reversible error because the charge was not adjusted to the evidence. Their contention, however, is meritless. “The expert witnesses [in the case at bar] clearly differed with respect to their diagnosis of [Kristy’s] illness and the cause of death, with the result that they also differed in their assessment of the treatment which she should have received.” Crumbley v. Wyant, 188 Ga. App. 227, 229 (3) (372 SE2d 497) (1988). Thus, the charge was appropriate.

8. There is no merit to plaintiffs’ contention that the trial court committed reversible error in charging the jury upon Tanner’s request that “[w]here a witness, including a physician or nurse, has no distinct and independent recollection of the care and treatment rendered to a particular patient, they [may] testify from their own knowledge as to the usual custom or course of practice in such situations, and that the treatment rendered in a given situation was in accordance [with] that custom.” The charge asserted a correct principle of law. Thomas v. Newnan Hosp., 185 Ga. App. 764, 768 (2) (365 SE2d 859) (1988). It also was warranted in this case based on plaintiffs’ attack of several witnesses’ lack of independent memory surrounding the treatment of Kristy. Clearly, the charge applied to all witnesses in the case, and not just the nurses that testified. And even if it could be interpreted as applying only to the nurses, plaintiffs have failed to demonstrate any prejudice arising from such a limited interpretation. Thus, the charge does not constitute harmful error.

9. Contrary to plaintiffs’ assertion, the record demonstrates that the trial court did not give Tanner’s Request to Charge No. 20. As such, plaintiffs’ contention that the giving of that charge constituted reversible error is without merit.

10. In light of the fact that we find that none of plaintiffs’ enumerations demonstrates reversible error in this case, which would have warranted a new trial, and the fact that the transcript and exhibits demonstrate at least some evidence to support the jury’s verdict, the judgment entered by the trial court in Baret’s and Tanner’s favor on that verdict must be affirmed. Randall & Neder Lumber Co. v. Randall, 202 Ga. App. 497, 498 (414 SE2d 718) (1992). Consequently, we need not address any error alleged by plaintiffs based on the trial court’s determination that Tanner was also entitled to a directed verdict in the case. That determination is rendered moot by the proper entry of a judgment on the jury’s verdict.

Judgment affirmed.

Johnson, J., concurs. Blackburn, J., concurs and concurs specially.

BLACKBURN, Judge,

concurring specially.

While I agree fully with the analysis and result of the majority opinion, I take this opportunity to point out my concern over the fact that the doctrine of res ipsa loquitur is not applicable to medical malpractice actions in Georgia.

In Shea v. Phillips, 213 Ga. 269, 271 (2) (98 SE2d 552) (1957), our Supreme Court stated: “In an action brought by a patient against his physician or surgeon for malpractice, the presumption is that the medical or surgical services were performed in an ordinarily [skillful] manner, and the burden is on the one receiving the services to show a want of due care, skill, and diligence. And in such a case, the proof ordinarily required to overcome such a presumption of care, skill, and diligence is that given by physicians or surgeons as expert witnesses.” The doctrine of res ipsa loquitur is as appropriate in medical malpractice cases as it is in any other tort action where the required factors are involved. Georgia courts, however, have determined that “[r]es ipsa loquitur is not applicable in medical malpractice cases in Georgia.” Kapsch v. Stowers, 209 Ga. App. 767 (1) (434 SE2d 539) (1993). This simply goes too far.

While Georgia has chosen to limit the application of res ipsa loquitur, “[i]n recent years the scope of the . . . doctrine in malpractice actions has been measurably enlarged [in other states]. The courts have not only found sufficient facts to fulfill the special requirements of the doctrine, but also have manifested an acute awareness of the need to protect an injured patient by requiring the physician to explain the reason for the injury, or suffer the penalty of an adverse inference in the absence of an explanation.” 61 AmJur2d 492, Physicians, Surgeons, Etc., § 333. As Dean Prosser has pointed out, “where the particular defendant is in a position of some special responsibility toward the plaintiff or the public [res ipsa loquitur] is designed to protect the dependent party from unexplained injury at the hands of one in whom he has reposed trust. In an integrated society where individuals become inevitably dependent upon others for the exercise of due care, where these relationships are closely interwoven with our daily living, the requirement for explanation is not too great a burden to impose upon those who wield the instruments of injury and whose due care is vital to life itself.” (Punctuation omitted.) Klein v. Arnold, 203 NYS2d 797, 800 (2) (citing Prosser, Res Ipsa Loquitur in California, 37 Cal. L. Rev. 183, 224) (1949). I agree with this learned analysis, and, accordingly, I believe that Georgia has improperly immunized medical professionals from assuming the burden of explaining their actions in appropriate cases where res ipsa loquitur would normally apply. The cost of this gratuitous benefit to the medical profession is being paid by the victims of medical malpractice, who are uniquely penalized, unlike any other category of victims of tortious conduct.

Decided March 17, 1998.

Greer, Klosik & Daugherty, Frank J. Klosik, Jr., John F. Daugherty, Robert J. McCune, for appellants.

Tisinger, Tisinger, Vance & Greer, David H. Tisinger, Webb, Car-lock, Copeland, Sender & Stair, Wade K. Copeland, Patricia M. Anagnostakis, Cameron P. Turner, Long, Weinberg, Ansley & Wheeler, Sidney F. Wheeler, Ashley A. Parker, for appellees.

I would hope that the legislature will correct this inequity, and treat victims of medical malpractice the same as other tort victims.

       During deliberations, the jury became deadlocked eleven to one. Thereafter, all parties agreed to dismiss the one juror who did not agree with the other eleven jurors and have the case decided by the eleven remaining jurors.


author: McMurray, Presiding Judge.

text:
    A97A2115.
    KAMAT et al. v. ALLATOONA FEDERAL SAVINGS BANK.
    (498 SE2d 152)
   McMurray, Presiding Judge.

Plaintiffs Manohar P. Kamat and Evelyn M. Kamat filed this action for damages predicated on the refusal of defendant Allatoona Federal Savings Bank to make a loan to them to fund a real estate purchase. As amended, plaintiffs’ complaint relies upon theories of breach of contract, fraud and deceit, and promissory estoppel. Plaintiffs appeal the grant of summary judgment in favor of defendant on all issues.

On motion for summary judgment, the parties opposing the motion are to be given the benefit of all reasonable doubts and all favorable inferences that may be drawn from the evidence. Torrington Co. v. Hill, 219 Ga. App. 453 (465 SE2d 447). Viewed in this light, the evidence of record shows that plaintiffs saw a newspaper ad and became interested in buying a condominium at auction. They contacted the seller who provided a package of information concerning the auction procedures, the financing available through defendant, and a blank copy of the proposed agreement of sale to be entered into upon successfully bidding for a condominium unit.

The sellers told plaintiffs to contact Joan M. Donaghue (now McClelland), a senior loan officer employed by defendant, to be preapproved for a loan to finance the purchase of a condominium unit. Plaintiffs did not previously know of and had never done business with either McClelland or defendant.

An appointment was arranged for December 11, 1991, and on that date plaintiffs met with McClelland at defendant’s offices. At that meeting plaintiffs told McClelland of their intent to bid upon a condominium unit at Midtown Square at an auction to be conducted on December 14, 1991. The proposed contract with the sellers of the condominiums was all cash at closing and would not be subject to plaintiffs’ ability to obtain a loan. It was essential to plaintiffs to be approved for a loan prior to bidding. Plaintiffs made McClelland aware of their concerns and requested that their loan application be approved prior to the auction.

Plaintiffs applied for a 30-year term, 95 percent Federal Housing Administration (FHA) insured adjustable rate mortgage, with an initial rate no greater than 6.5 percent. McClelland filled out a loan application in the plaintiffs’ presence. Plaintiffs were provided with a copy of a rate quote agreement.

There are a number of conditions to obtaining a 95 percent FHA insured mortgage in a development such as Midtown Square. The conditions include the provision of a complete set of plans and specifications, and a ten-year United States Department of Housing & Urban Development (HUD) approved warranty provided by the builder or seller.

At the December 11, 1991 meeting with McClelland, plaintiffs also received a document entitled “Items Required For Loan Processing,” which was a checklist on which McClelland checked off a number of items and documents that were necessary to obtain loan approval. Item No. 31 on the checklist is “three complete sets of plans and specs.” Item 31 was not checked by McClelland to indicate that the item was necessary for loan approval. The checklist also contained three item numbers which were blank where additional requirements could have been written in but these were left blank. The checklist did not note the requirement of a home warranty.

On December 12, 1991, plaintiffs attended a seminar concerning the impending condominium auction conducted by the seller. At the seminar, plaintiffs received further information including a “bidder’s packet” consisting of documents concerning the condominium and the auction procedures.

On December 13, 1991, plaintiffs telephoned McClelland and were advised that their loan application was approved. On December 14, 1991, plaintiffs attended the auction. McClelland was present at the auction and told plaintiffs to “feel free to bid, everything is okay.”

Plaintiffs bid on a condominium unit and were the successful bidders. Following the auction, plaintiffs signed a contract agreeing to purchase the condominium unit on which their bid had prevailed. The contract did not contain any financing contingency.

On December 16,1991, plaintiffs met with McClelland and delivered documents necessary to continue processing the paperwork for closing the loan, paid $257 for an appraisal and credit report, signed the loan application McClelland had filled out at their prior meeting, and received a “Registration Form” setting forth the loan amount and the interest rate for an FHA insured adjustable mortgage.

Subsequently, defendant declined to provide the 95 percent FHA mortgage sought by plaintiffs due to an inability to obtain copies of the plans and specifications, and a seller provided ten-year HUD approved warranty which were required by the FHA. Plaintiffs rejected alternative financing due to its higher cost and forfeited their earnest money to sellers.

McClelland had obtained approval for 95 percent FHA insured financing on purchases of condominium units of Midtown Square from HUD on October 16, 1990. Subsequently she obtained financing for a number of purchasers of Midtown Square units and the seller provided plans and specifications as well as the required warranties for purchasers who qualified for FHA 95 percent financing.

In November 1991, the seller’s managing partner contacted McClelland and told her that he was planning to conduct an auction of the remaining units. McClelland told him that the project was eligible for 95 percent financing, subject to the conditions required by HUD, but never discussed the specific requirements of plans and specifications and a ten-year warranty with him. A number of potential purchasers were referred to McClelland prior to the auction. McClelland attended the auction and while there discussed the need for plans and specifications with the seller’s construction supervisor.

When McClelland reviewed the file on plaintiffs’ loan application on December 28, 1991, she noted that defendant had not received the required plans and specifications or the HUD approved warranty required by FHA. McClelland attempted to obtain the plans and specifications herself but was unable to obtain a complete set.

When McClelland received a copy of plaintiffs’ contract for the purchase of the condominium she noted that it was an “as is” sale. The seller refused to provide a homebuyer’s warranty to plaintiffs. Held:

1. The first enumeration of error complains of the state court’s grant of summary judgment to defendant on plaintiffs’ breach of contract claim. The state court concluded that this issue was governed by OCGA § 13-5-30 (7) which states that an agreement to lend money must be in writing and by evidence that despite McClelland’s assurances no loan commitment had been finalized in writing.

Plaintiffs attempt to satisfy the requirement of a written loan commitment by reference to two documents. First, plaintiffs refer to a letter to them from McClelland dated April 20, 1992, which states that they were “approved” prior to the auction on December 14, 1991. Yet, this letter which explains the defendant’s reasons for being unable to provide plaintiffs with 95 percent FHA financing cannot be viewed as a loan commitment and the reference to an earlier loan approval is, in the context of the other evidence at record, at most, a reference to McClelland’s oral commitment.

The other document relied upon by plaintiffs is a good faith estimate of closing costs which is a portion of the “Registration Form” received by plaintiffs on December 16,1991. This document does contain the terms of the proposed loan but does not contain any written commitment by defendant to make such a loan and thus does not satisfy the requirement imposed by OCGA § 13-5-30 (7).

The state court cited Bridges v. Reliance Trust Co., 205 Ga. App. 400 (422 SE2d 277), apparently for its application of OCGA § 13-5-30 (7) in Division 2 of that opinion. Plaintiffs maintain that the state court’s reliance was misplaced and that Bridges should be distinguished on the facts. However, this argument is based on the factual predicate for an alternative basis for the holding in Bridges. The fact underlying the primary basis for this Court’s holding in Division 2 of Bridges is not distinguishable.

2. The grant of summary judgment to defendant on plaintiffs’ claim for fraud and deceit was not error. As recited in the state court order, “ ‘[although fraud can be predicated on a misrepresentation as to a future event where the defendant knows that the future event will not take place (cits.), fraud cannot be predicated on a promise which is unenforceable at the time it is made (cits.).’ Bridges \v. Reliance Trust Co., 205 Ga. App. 400, supra], and Beasley v. Ponder, 143 Ga. App. 810 [(240 SE2d 111)]; Trust Company Bank of Augusta v. Christmas, 189 Ga. App. 372 [(375 SE2d 644)]; Studdard v. George D. Warthen Bank, 207 Ga. App. 80 [(427 SE2d 58)].” The alleged oral promise to provide a mortgage to plaintiffs was unenforceable at the time it was purportedly made because it was not in writing as required by OCGA § 13-5-30 (7). “Obviously, one cannot sue in fraud based upon the alleged breach of an oral contract which would itself be unenforceable under the Statute of Frauds. See Royal v. Bland Properties, 175 Ga. App. 250, 251 (2) (333 SE2d 145).” Studdard v. George D. Warthen Bank, 207 Ga. App. 80, 81 (2), supra. See also Adamson v. Maddox, 111 Ga. App. 533, 535-536 (3) (142 SE2d 313).

Nonetheless, plaintiffs maintain that their fraud claim is not predicated on a promise to make a loan at some time in the future, rather that “the fraud occurred by reason of [defendant] Allatoona not disclosing to the [plaintiffs] the conditions under which loan approval was made.” This position is logically flawed since it must implicitly assume the existence of some promise by defendant to make a mortgage loan to plaintiffs and any damage to plaintiffs flows ultimately from the plaintiffs’ failure to obtain the loan they sought. Plaintiffs fail in their attempt to avoid the impact of the above authority.

3. The state court erred in granting summary judgment in favor of defendant on plaintiffs’ remaining claim which is based on a theory of promissory estoppel. In Georgia, the doctrine of promissory estoppel has been adopted by statute, OCGA § 13-3-44. To prevail on a promissory estoppel claim, plaintiffs must show that (1) defendant made certain promises, (2) defendant should have expected that plaintiffs would rely on such promises, (3) the plaintiffs did in fact rely on such promises to their detriment, and (4) injustice can be avoided only by enforcement of the promise. Doll v. Grand Union Co., 925 F2d 1363 (11th Cir.); Insilco Corp. v. First Nat. Bank, 248 Ga. 322 (1) (283 SE2d 262).

It is readily apparent that the claim based on promissory estoppel is closely related to a fraud claim, and it is argued by defendant that the requirement of an enforceable promise should be deemed to be as applicable to the promissory estoppel claim as it is to a fraud claim. Nonetheless, defendant acknowledges the decision in 20/20 Vision Center v. Hudgens, 256 Ga. 129 (345 SE2d 330) which clearly states a contrary holding, that is, that where a purported contract was not enforceable, such did not preclude a claim predicated on a theory of promissory estoppel. This Supreme Court decision is indistinguishable and binding precedent on this point.

Defendant also argues that plaintiffs received what they sought, an FHA loan commitment which was by definition conditional in that certain requirements were specified by the FHA and it was only plaintiffs’ failure to comply with the FHA conditions which prevented them from obtaining the loan they sought. Promissory estoppel does not transform a conditional promise into an unconditional promise. Protective Life Ins. Co. v. Robinson, 193 Ga. App. 316, 318 (1) (387 SE2d 603). However, there is evidence which goes beyond simple approval of the FHA loan application. A jury could reasonably find a promise of broader dimensions based on the statements of McClelland assuring plaintiffs that everything was okay for them to bid, and this is particularly so in the light of McClelland’s failure to accurately inform plaintiffs of the FHA requirements.

Decided March 17, 1998.

Zachary & Segraves, Rick S. Sexton, for appellants.

Nisbet S. Kendrick III, for appellee.

Finally, defendant maintains that plaintiffs engaged in wilful conduct that creates a bar to their promissory estoppel claim in that they executed a written loan application wídch certified that they intended to use the condominium as a primary residence when such was not true. However, in examining the viability of a promissory estoppel claim we look to the time at which plaintiffs acted in reliance on defendant’s promise. In the case sub judice, this would be when plaintiffs bid on the condominium and entered into a contract for the purchase of the condominium, all of which occurred prior to plaintiffs’ signing of the loan application form.

Judgment reversed.

Beasley and Smith, JJ, concur.


author: Smith, Judge.

text:
    A97A2181.
    PAGE et al. v. CITY OF CONYERS.
    (499 SE2d 126)
   Smith, Judge.

On August 25, 1967, Rockdale County entered into a franchise agreement with the City of Conyers for the city to provide water and sewer services to the residents of Rockdale County. In consideration for the franchise agreement, the county granted exclusive rights to the city to use county roads and rights-of-way to acquire, construct, improve, and operate sewer and water facilities in the county.

In 1973, the city filed suit against the county, asking for a declaration of its rights under the franchise agreement and seeking to restrain the county from acquiring rights to three sewage treatment facilities in Rockdale County constructed by developers. In that case, the Supreme Court affirmed the trial court’s determination that the city was granted an exclusive franchise by the county pursuant to the franchise agreement to acquire and operate the three sewage treatment plants at issue. Rockdale County v. City of Conyers, 231 Ga. 477 (202 SE2d 436) (1973).

In 1987, the franchise agreement again became the subject of litigation when the county filed suit against the city alleging violations of the agreement. Subsequently, a citizen’s group, composed of Rockdale County residents, initiated a second action against the city alleging similar violations. Eventually, the citizens’ action was dismissed, and the named plaintiffs intervened in the litigation initiated by the county.

An agreement was entered into by the county and the city on May 23, 1989, settling the pending litigation between the parties. The intervenors were not made parties to this settlement agreement. Pursuant to the terms of the settlement agreement, the city was authorized to transfer water and sewer fund monies into its general account as reimbursement for necessary and reasonable costs incurred in operating the water and sewer system. The amount of these transfers was deemed “allowable costs” and was to be determined under a plan devised by the city using guidelines set forth in O.M.B. Circular 1-87 attached to the settlement agreement.

Both the franchise agreement and settlement agreement were amended by the parties on August 10, 1993, and on December 10, 1996, the county and the city entered into a Termination and Release Agreement declaring both agreements to be “of no further force or effect.”

Plaintiffs brought this action against the city on February 3, 1997, on behalf of themselves and all other persons who received water and sewer services from the city at any period between the years of 1991 and 1996 and resided outside the city limits of Conyers but within the political subdivision of Rockdale County. They sought damages in the amount of $10,685,536 for excess rates allegedly charged by the city to the county customers in violation of both the franchise and settlement agreements. They also sought an accounting to determine the amount the city allegedly charged the county in excess of the “allowable costs” set forth in the settlement agreement.

The city filed a motion to dismiss the complaint on the ground that plaintiffs lacked standing to assert their claims. The trial court granted the city’s motion in a well-reasoned order, finding plaintiffs were not intended third-party beneficiaries under either the franchise or settlement agreement. The court found that plaintiffs were incidental beneficiaries and therefore lacked standing to bring this action. We agree and affirm.

1. Plaintiffs argue the trial court erred in granting the city’s motion to dismiss for lack of standing because both the franchise and settlement agreements expressly conferred third-party beneficiary status on Rockdale County citizens.

Under OCGA § 9-2-20 (b), third-party beneficiaries to a contract may sue in their own names to enforce the contract, but it must clearly appear from the contract that it was intended for their benefit. Miree v. United States, 242 Ga. 126, 135 (249 SE2d 573) (1978). See also Backus v. Chilivis, 236 Ga. 500, 502 (224 SE2d 370) (1976).

A third-party beneficiary must be the intended beneficiary of the contract; the mere fact that a third party would benefit incidentally from the performance of the contract is not alone sufficient to give such person standing to sue on the contract. Miree, supra at 135; Backus, supra at 502; Southeast Grading v. City of Atlanta, 172 Ga. App. 798, 800 (1) (324 SE2d 776) (1984). See also Culberson v. Fulton-DeKalb Hosp. Auth., 201 Ga. App. 347, 349 (1) (d) (411 SE2d 75) (1991) (physical precedent only), overruled on other grounds, Lemonds v. Walton County Hosp. Auth., 212 Ga. App. 369 (441 SE2d 821) (1994).

(a) The Franchise Agreement. In support of their claim that the franchise agreement expressly conferred third-party beneficiary status on the citizens of Rockdale County, plaintiffs rely exclusively on language in the preamble to the agreement providing that the grant of the franchise “will benefit the county and its residents.” We find this language to be insufficient to evidence an intent to confer third-party rights upon plaintiffs: “Practically, every contract entered into by a county is for some public benefit because the only business of the county is public business.” Miree, supra at 135.

We also reject plaintiffs’ argument that the Supreme Court acknowledged plaintiffs’ third-party rights under the franchise agreement in Rockdale County v. City of Conyers, supra. In Rockdale County, the Supreme Court rejected the county’s argument that evidence of unreasonable or discriminatory rates charged by the city could vitiate the franchise agreement, and further stated that “[a]ny unreasonable or discriminatory rates charged by the city to the residents of the county might give rise by these residents to a claim.” (Emphasis supplied.) Id. at 479. This somewhat ambiguous statement is obiter dictum because it was not the basis for the holding of the Supreme Court in that case. Moreover, Rockdale County was decided prior to Miree and Backus, and therefore cannot be relied upon by plaintiffs as evidencing a clear intent to confer third-party beneficiary status.

(b) The Settlement Agreement. Plaintiffs were not parties to the settlement agreement even though they were intervenors in the litigation. Nevertheless, they contend the settlement agreement conferred third-party beneficiary status on the citizens of Rockdale County because the parties acknowledged in the agreement that “the city’s operation of the water and sewer system [was] for the benefit of the citizens of both jurisdictions.” As discussed above, we find the language relied upon by plaintiffs insufficient under Miree and Backus, supra, to evidence an intent to create third-party rights in plaintiffs. Plaintiffs received incidental benefits from these agreements as citizens of Rockdale County, but that alone was insufficient to confer standing to sue. Miree, supra at 135.

Other language in the settlement agreement relied upon by plaintiffs was also insufficient to establish standing. In a section entitled “Effect of Settlement,” the city and county agreed that the terms of the settlement agreement would be binding on both parties “as to any claims, suits or arbitrations brought against either or both of them concerning the operation of the water/sewer system by third parties, and that neither shall take a position contrary to this agreement as to any third-party claims or suits, or arbitrations.” Plaintiffs argue this language evidences an acknowledgment by the city and county that third-party claims already in existence under the franchise agreement were excluded from the operation of the settlement agreement or, alternatively, that the city and county intended to confer new third-party rights in Rockdale County citizens. We find both arguments to be without merit.

With regard to plaintiffs’ first argument, the settlement agreement expressly provides that the parties entered into the agreement for the purpose of “fully and completely settling the claims, differences and causes of action” raised in the litigation. With regard to the second argument, we find the language relied upon by plaintiffs was not intended to grant any additional rights under the franchise agreement, but was intended to prevent the two governmental entities from taking a position contrary to the terms of the settlement agreement in cases brought by third parties, such as the present action.

Gardner & White Consulting Svcs. v. Ray, 222 Ga. App. 464 (474 SE2d 663) (1996), relied upon by plaintiffs, is distinguishable from the present case. In Gardner, we held that an employee had standing to bring an action against the administrator of a county health plan for denial of health insurance coverage because the contract at issue specifically provided that the administrator would provide certain services directly to the claimant, who had earned them individually as an employee of the county. Here, the county contracted with the city to provide water and sewer services for the benefit of Rockdale County, so that the county would not have to provide these services to its citizens. Like the agreements in Backus and Miree, the franchise and settlement agreements entered into by the county and the city did not evidence an intent to benefit plaintiffs directly. Like all contracts entered into by governmental entities, these agreements benefited all citizens indirectly, in this case by arranging for water and sewer services, but these benefits were only incidental. Merely entering into a contract for the benefit of the public does not create third-party beneficiary status under Georgia law. Miree, supra; Backus, supra.

Decided March 17, 1998

Serio & Swilley, Salvatore J. Serio, Chapman & Pope, Daniel C. Chapman, Trida B. Smith, James E. Carter, for appellants.

Talley & Sharp, Janice C. Sharp, Sutherland, Ashill & Brennan, J. D. Fleming, Jr., Dulaney L. O’Roark, John L. North, for appellee.

2. Plaintiffs also argue the trial court erred in finding that plaintiffs, as consumers of water and sewer services supplied by the city, did not have standing to bring this action even though the city failed to abide by the regulatory language incorporated into these agreements.

Inclusion of regulatory language in the franchise and settlement agreements adds nothing to plaintiffs’ argument. The franchise and settlement agreements were entered into between two governmental entities, and the regulatory provisions contained in these agreements were for the benefit of and binding upon only those governmental entities. If the city charged rates in excess of the “allowable costs” provided for in these agreements, then the county was the proper party to assert a claim or institute an action against the city. “[L]egal title to funds in the county treasury is in the county and any suit to recover money illegally paid by the county or owed to the county by virtue of a breached contract must be brought by the county itself. Citizens and taxpayers do not have standing to bring such a suit. [Cits.]” Backus, supra at 501.

The trial court did not err in granting the city’s motion to dismiss on the grounds that plaintiffs did not have standing to bring this action.

Judgment affirmed.

McMurray, P. J., and Beasley, J., concur.

       The record does not indicate whether this class was ever certified.

       In Miree, the language relied upon by the plaintiffs to confer third-party beneficiary status referred to the facility in issue being operated by DeKalb County “for the use and benefit of the public.” Id. at 127. The Supreme Court found this language did not plainly reflect an intention by the parties to permit the general public to sue on the contract. Id. at 135-136.


author: Beasley, Judge. McMurray, Presiding Judge,

text:
    A97A2218.
    QUINTRELL v. THE STATE.
    (499 SE2d 117)
   Beasley, Judge.

Quintrell was arrested and charged with three hunting misdemeanors: hunting over bait, “unlawful enticement of game” (OCGA § 27-3-9); hunting bears out of season (OCGA § 27-3-26); and unlawful use of bear bait (OCGA § 27-3-27). Only the latter two offenses are misdemeanors of a high and aggravated nature. A jury convicted Quintrell of hunting over bait but acquitted him of the other charges. He enumerates error in the denial of his motion to suppress as evidence a videotape showing Quintrell in possession of a hunting bow and arrows on a hunting stand located nearby, which was above food generally considered to be bear bait. He also enumerates as an abuse of discretion the suspension of his hunting and fishing licenses as a condition of probation.

Farist, a law enforcement official in the Department of Natural Resources (DNR), together with other officers, investigated a report of illegal hunting taking place over bait on certain private property in Towns County. In an area up an old road from the property owner’s trout hatchery, Farist found at small clearings and other nearby places man-made tree stands, three of wood and one of metal. At one stand he found grease, scraps of what were apparently beef bones, and a salt lick, all ten to fifteen yards from the stand. No food was near the second stand, but a clearing just past it contained a lot of grease and some fish bones. At the third were beef bones, meat scraps, grease and a salt lick. Near the fourth stand were dead trout, apples, candy mints, and doughnuts. Officer Farist saw what he believed to be bear tracks and trails. He smelled the odor of bear. An arrow feather lay beneath a stand, indicating to Farist that the stands were being used for hunting, not photography.

Farist returned the following day with DNR Ranger Bill Jones and videotaped the stands and several persons in or about the stands, including Quintrell. Quintrell, another person and the property owner were arrested. It is uncontested that the stands were located on private property and that the officers did not have the owner’s permission to go upon the property but Quintrell did.

1. The first issue is whether Quintrell was entitled to suppression of the videotapes as evidence because they were made in violation of OCGA § 16-11-62 (2) and/or (3) and thus should have been excluded pursuant to the express sanction of OCGA § 16-11-67. His argument centers on his categorization of the place displayed on the film as a “private place” within the meaning ascribed to that term by OCGA § 16-11-60 (3), i.e.: “ 'Private place’ means a place where one is entitled reasonably to expect to be safe from casual or hostile intrusion or surveillance.” Quintrell could not reasonably have expected the evidence of bear hunting, including his presence on the second day, to be safe from surveillance by the conservation rangers.

One reason is that the rangers are given, in addition to the powers vested in any other law enforcement officers within the Department of Natural Resources, the power “[t]o go upon property outside of buildings, posted or otherwise, in the performance of their duties.” While it is true that “[statutes of this state cannot diminish rights guaranteed by the United States or Georgia Constitutions,” the federal constitution does not proscribe entry on the type of property entered here without warrant by a law enforcement officer in pursuit of official duties. As held in Manley v. State of Ga. , entry on posted private property did not constitute trespass onto a zone of privacy protected by the Fourth Amendment.

For that principle we repeat what was quoted in Manley: “ £[I]n Hester v. United States, 265 U. S. 57, 59 (44 SC 445, 68 LE 898), the United States Supreme Court held that even if the law enforcement agents had trespassed onto privately owned land an illegal search and seizure did not occur, because the special protection accorded by the Fourth Amendment to the people in their “persons, houses, papers, and effects” is not extended to the open fields.’ ” True, the area at issue here was not open to casual view of a passerby on a public way but rather was secluded in the woods. But as the United States Supreme Court observed in Oliver v. United States: “An open field need be neither ‘open’ nor a ‘field’ as those terms are used in common speech. For example ... a thickly wooded area nonetheless may be an open field as that term is used in construing the Fourth Amendment.” See Gravley v. State, 181 Ga. App. 400, 402 (352 SE2d 589) (1986) (physical precedent only); Perry v. State, 204 Ga. App. 643, 645 (2) (419 SE2d 922) (1992).

In discerning the scope of the statutory meaning of “private place,” we ascribe the same scope as has been given to the Fourth Amendment protections. We give this interpretation to the statutory term because, were it otherwise, an officer could enter the premises, search, make notes, seize contraband, and testify as to all of this at trial but would not be permitted to memorialize the evidence in place by way of a visual or auditory evidence-recording device as listed in OCGA § 16-11-60 (1). The law seeks the highest evidence from the purest sources, not the opposite. Where a scene or events can be captured faithfully as is, the factfinder will have a more objective and accurate rendition than generally can be achieved through recollection by a witness. Nothing in the statute indicates the General Assembly intended otherwise.

The crime for which Quintrell was convicted is a misdemeanor. OCGA §§ 27-3-9; 16-1-10. A warrant to use the videotape camera to depict the evidence of criminal activity, which instrument or apparatus clearly is a “device” within the meaning of OCGA § 16-11-60, would not be obtainable because such a warrant can be issued only for specified serious felonies; not for misdemeanors. But a warrant for use of such a picture-creating device is not needed by a law enforcement officer who, in performing the officer’s duties as described in OCGA § 16-11-64 (a), does not invade a “private place” and thereby violate OCGA § 16-11-62. Quintrell does not contend that the tree stands and surrounding ground with telltale signs were within the curtilage of any home.

Quintrell does not pursue any independent analysis on state constitutional issues, so we do not address them.

2. As a special condition of probation, the court suspended Quintrell’s hunting and fishing “privileges” during the 12-month probation period.

The court is authorized by OCGA § 17-10-1 (a) (1) to “suspend or probate all or any part of the entire sentence under such rules and regulations as the judge deems proper. . . .” See also OCGA § 17-10-3 (b) (misdemeanor punishment may be subject to probation). OCGA § 42-8-35 provides that the court “shall determine the terms and conditions of probation” and lists a number of non-exclusive conditions which the court “may” impose. “The probation and suspension statutes in Georgia vest broad discretion in trial judges. In the absence of express authority to the contrary, we see no logical reason why any reasonable condition imposed for probation or suspension of a sentence by a trial court should not be approved. Probated and suspended sentences, upon reasonable conditions, have traditionally been used by trial judges in Georgia as effective tools of rehabilitation and serve a useful purpose in appropriate cases as an alternative to confinement.”* Quintrell’s challenged probation condition does not exceed the length of the sentence and clearly serves the rehabilitative purpose of his sentence by making plain that abuse of the privileges results in their withdrawal, at least this time.

Decided March 17, 1998.

William L. Reilly, for appellant.

Albert F. Taylor, Jr., District Attorney, Mary E. Moore, Assistant District Attorney, for appellee.

Quintrell argues that the licenses suspension was off limits for his misdemeanor sentence because the legislature provided for such only with respect to the game and fish violations that were designated as high and aggravated misdemeanors, such as hunting bears as prohibited by OCGA § 27-3-26. Subsection (c) of that section mandates suspension of the hunting and fishing privileges of the offender for three years. This does not eliminate the discretionary imposition of suspension for the misdemeanor Quintrell committed. There was no abuse of discretion.

Judgment affirmed.

Senior Appellate Judge Harold R. Banke concurs. McMurray, P. J., concurs specially.

McMurray, Presiding Judge,

concurring specially.

I fully concur in Division 2 and in the judgment of affirmance. I also concur in the Fourth Amendment analysis of Division 1, holding that the woods at issue were not a “private place.” I write separately to emphasize there is no basis in state law for suppressing the videotape of defendant. Except for certain designated felonies, “nothing in this part [Chapter 11, Article 3, Part 1, OCGA §§ 16-11-60 through 16-11-69,] shall apply to a duly constituted law enforcement officer in the performance of his official duties in ferreting out offenders or suspected offenders of the law or in secretly watching a person suspected of violating the laws of the United States or of this [S]tate, or any subdivision thereof, for the purpose of apprehending such suspected violator.” OCGA § 16-11-64 (a). As the majority correctly notes, misdemeanor hunting over bait is not one of those felonies designated by OCGA § 16-11-64 (b) for an investigation warrant.

       “It shall be unlawful for: ... (2) Any person, through the use of any instrument or apparatus, without the consent of all persons observed, to observe, photograph, or record the activities of another which occur in any private place and out of public view;... (3) Any person to go on or about the premises of another or any private place for the purpose of invading the privacy of others by eavesdropping upon their conversations or secretly observing their activities.”

       “No evidence obtained in a manner which violates any of the provisions of this part shall be admissible in any court of this state except to prove violations of this part.”

       OCGA §§ 27-1-20 (a) (6); 27-1-2 (22).

        State v. Sutton, 258 Ga. 382 (1) (369 SE2d 249) (1988).

       217 Ga. App. 556, 557 (2) (458 SE2d 179) (1995).

       Id.

       466 U. S. 170, 180, fn. 11 (104 SC 1735, 80 LE2d 214) (1984).

       OCGA § 24-1-2.

       OCGA § 16-11-64 (b) (1).

       OCGA §§ 27-1-3; 27-2-23.

        State v. Collett, 232 Ga. 668, 670 (208 SE2d 472) (1974).

       See Ballenger v. State, 210 Ga. App. 627, 628 (3) (436 SE2d 793) (1993).

       See Allen v. State, 258 Ga. 424, 425 (3) (369 SE2d 909) (1988); Mangiapane v. State, 178 Ga. App. 836 (1) (344 SE2d 756) (1986).


text:
    A97A2246.
    JOHNSON v. THE STATE.
    (498 SE2d 359)
   McMurray, Presiding Judge.

Defendant Johnson appeals her conviction of a violation of the Georgia Controlled Substances Act, possession of cocaine. The sole enumeration of error complains of the denial of a motion to suppress evidence. Held:

Deputy Sheriff Meadows testified that he was dispatched to a suspicious person call based on the conduct of two females who were going door to door, knocking, and asking for a ride. The deputy responded to a residential address, where he was told that the two females were at a nearby automotive repair garage. At the garage the deputy found the two females sitting in a vehicle and ascertained, from a male present there, that he had been asked and was about to give the two females a ride. The deputy approached the two females, asked for their identification, and asked what they were doing in the neighborhood. The defendant’s companion cooperated with the deputy’s request and was sent to stand nearby. Defendant’s response to the request for identification was “do I have to.” In responding affirmatively, the deputy seized the person of defendant. See State v. Westmoreland, 204 Ga. App. 312 (1) (418 SE2d 822). Our conclusion that a seizure occurred at this point in time is further supported by the deputy’s conduct in ordering defendant out of the vehicle in which she was seated and repeatedly insisting that she remove her hands from her pockets. The contraband was found when the deputy directed defendant to empty her pockets. Clearly, any consensual interchange between defendant and the deputy had ceased prior to the deputy’s discovery of the contraband in defendant’s possession.

This brings us to the question of whether the deputy had an articulable suspicion that defendant was, or was about to be, engaged in criminal activity such as would authorize a seizure. Only a negative conclusion is possible. There is no suggestion that defendant’s conduct in soliciting a ride was illegal. While the deputy testified that the defendant’s conduct in going door to door knocking was suspicious because the same modus operandi was used in connection with burglaries, such amounted to only an unparticularized suspicion or hunch. No evidence of any circumstances consistent with such a theory was introduced. There was no objective basis for suspecting the defendant of criminal activity and indeed the circumstances in which the deputy found defendant and her companion were entirely consistent with an innocent goal of obtaining a ride. Construing the evidence most favorably to the trial court’s judgment, we find the record lacks evidence which would support any reasonable suspicion that defendant was engaged in any unlawful activity. The seizure of the person of defendant was unreasonable and the denial of her motion to suppress evidence was error. State v. King, 227 Ga. App. 466, 468 (489 SE2d 361); State v. Banks, 223 Ga. App. 838, 840 (479 SE2d 168); Oboh v. State, 217 Ga. App. 553, 555 (458 SE2d 177); Streicher v. State, 213 Ga. App. 670, 672 (445 SE2d 815); Rogers v. State, 206 Ga. App. 654, 658 (3), 659 (426 SE2d 209).

Decided March 17, 1998.

Sanders, Haugen & Sears, Walter S. Haugen, for appellant.

Peter J. Skandalakis, District Attorney, Lynda S. Engel, Assistant District Attorney, for appellee.

Judgment reversed.

Smith, J., concurs. Beasley, J., concurs in the judgment only.


text:
    A97A2254.
    WHIPPLE v. CITY OF CORDELE et al.
    (499 SE2d 113)
   Smith, Judge.

Barbara Whipple brought suit against the City of Cordele and against the Chairman of the City Commission and three other commissioners in their official and individual capacities, seeking a declaration that a local ordinance prohibiting the stabling of horses within the city limits was invalid and unenforceable. She also sought damages pursuant to 42 USC § 1983 for the violation of her federally secured rights and for the taking of her property without just compensation in violation of her rights under the Fifth and Fourteenth Amendments to the U. S. Constitution and the Georgia Constitution. The trial court granted the defendants’ motion for summary judgment, and this appeal ensued. We agree with the trial court that Whipple has no claim against these defendants under § 1983 and that Whipple’s other claims for damages must fail because she failed to comply with the ante litem notice requirement in OCGA § 36-33-5. We therefore affirm the judgment below.

The record shows that in 1993, Whipple built at her residence in the city a facility for stabling several horses. Before doing so, she checked with the city attorney, who informed her that no city ordinance prohibited keeping horses within the city limits, and that only the county Health Department would be involved in regulating the activity. In reliance upon this information, Whipple had the barn constructed and expended additional funds on its maintenance and upkeep. She stabled three horses, moving them from other facilities she had been using.

In October 1994, the city adopted an ordinance that prohibited the keeping of horses in residential areas of the city. The ordinance provides, in pertinent part, as follows: “It shall be unlawful for any person to keep . . . horses . . . temporarily or permanently in the City, except for temporary purposes of licensed sales in nonresidential areas, such as but not limited to auction sales. . . . Nothing in this section shall prohibit a show, carnival, fair or circus licensed by the City for one to six days from displaying or using any such animals in entertainment programs.” The effective date of the ordinance was April 1, 1995. After that date, the ordinance was enforced against Whipple and she was forced to move her horses. Whipple brought this action in February 1996.

1. It is our duty to inquire on our own motion into the issue of this Court’s jurisdiction. Thibadeau v. Hendon, 221 Ga. App. 258 (471 SE2d 52) (1996). In this case, our concern is that the complaint appears to challenge the constitutionality of the ordinance in issue. The complaint alleged it sought “declaratory and injunctive relief” and damages to redress the denial of constitutional rights, the taking of her property without just compensation, inverse condemnation, retroactive application of the ordinance in violation of vested rights, and passage of a general law for application to a specific individual. Although the complaint prayed for a declaration that the ordinance was “invalid, illegal and unenforceable,” Whipple on appeal appears to concede that the ordinance is valid as a general law; her contention is that it is invalid as applied to her. The trial court did not rule on the constitutional issue, and Whipple does not enumerate as error the trial court’s ruling that the ordinance is valid. We therefore conclude that this appeal is not within the exclusive appellate jurisdiction of the Supreme Court, Ga. Const, of 1983, Art. VI, Sec. VI, Par. II, and we address the merits of Whipple’s appeal. See Raskin v. Wallace, 215 Ga. App. 603, 604 (1) (451 SE2d 485) (1994).

2. As the trial court noted, several valid reasons exist for finding that Whipple’s various claims must fail. With the exception of Whipple’s claim under 42 USC § 1983, her claims for damages against the city required her to comply with OCGA § 36-33-5 (a) by giving ante litem notice within six months after the effective date of the ordinance. OCGA § 36-33-5 (b). It is undisputed that no such notice was given, and the trial court properly found that her claims against the city, other than her claim under § 1983, were therefore barred.

3. The city and its officials asserted the defenses of sovereign and official immunity. We agree with the trial court that this, too, bars Whipple’s recovery on all but her § 1983 claim. See Davis v. City of Roswell, 250 Ga. 8, 9 (1) (295 SE2d 317) (1982) (municipality is “person” within meaning of § 1983; supremacy clause of Constitution prevents use of state immunity defense to action under § 1983). Whipple argues that the defendants’ actions in enacting the ordinance were administrative rather than legislative because the legislation was “aimed at her specifically.” But the record includes no evidence of this allegation or any other support for this argument. Moreover, even if the record were to include evidence showing that the motives of the city commission were suspect when they enacted this ordinance, the U. S. Supreme Court has recently held that local legislators are entitled to absolute immunity in performing their legislative functions, regardless of their motives. Bogan v. Scott-Harris, _U. S._(118 SC 966,_LE2d_) (1998).

4. Whipple contends the trial court erred in determining that her action is not maintainable under 42 USC § 1983. We do not agree. “In order to pursue an action of this nature, a plaintiff must show (1) that he has been deprived of a right secured by the constitution and laws of the United States, and that (2) the defendant acted under color of state law.” (Citation and punctuation omitted.) Patterson v. Butler, 200 Ga. App. 657, 661 (2) (e) (409 SE2d 531) (1991).

Keeping horses is not a fundamental right, and those who do so do not comprise a suspect class. See City of Lilburn v. Sanchez, 268 Ga. 520, 522 (2) (491 SE2d 353) (1997). The ordinance is therefore examined under the rational basis test, and it is a valid exercise of the city’s police power if any plausible or arguable reason supports it. Id. Even if questions exist regarding the wisdom of the ordinance, they are not for the courts but for the city’s legislative body to decide. Id. Here, as in Sanchez, the ordinance obviously serves a legitimate public purpose. See id.; Thombley v. Hightower, 52 Ga. App. 716, 720-721 (184 SE 331) (1936); Thorpe v. Mayor &c. of Savannah, 13 Ga. App. 767 (79 SE 949) (1913).

Notwithstanding Whipple’s unsupported argument to the contrary, retroactive application of such an enactment under a valid exercise of the city’s police power would not violate any constitutional prohibition against retroactive statutes unless Whipple had a vested right to keep horses in the city. See Recycle & Recover v. Ga. Bd. of Nat. Resources, 266 Ga. 253, 254 (2) (466 SE2d 197) (1996). “In the exercise of the police power, the General Assembly is authorized to place restrictions upon land use in order to protect and preserve the natural resources, environment, and vital areas of this state. . . . An enactment under the police power does not ordinarily violate any constitutional prohibition against retroactive statutes. Nevertheless, our Constitution forbids passage of retroactive laws which injuriously affect the vested rights of citizens. Thus, if [a citizen] has a vested right which would be injuriously affected by application of the amendment . . ., then our Constitution requires that that amendment be applied prospectively rather than retroactively.” (Citations and punctuation omitted.) Id.

In Recycle & Recover, supra, a divided Supreme Court held that a property owner who becomes “an actual applicant seeking to alter the use of his land” acquires a vested right to have that application considered under the statutory law then in existence, prohibiting the retroactive application of later enacted law. Id. at 254-255 (2). In this case, Whipple did not make formal or official application to modify her property; no formal application was required. She did not acquire a “vested right” to keep horses on her property merely because no law then prohibited her from doing so. The passage of an ordinance that applied in general to all city residents certainly created no such “vested right,” nor did her communications with the city attorney, who merely informed her correctly of existing law.

As our Supreme Court recently noted, “[i]n organized society, every person holds all he possesses, and looks forward to all he hopes for, through the aid and under the protection of the laws; but as changes of circumstances and of public opinion, as well as other reasons affecting the public policy, are all the while calling for changes in the laws, and as these changes must influence more or less the value and stability of private possessions, and strengthen or destroy well-founded hopes, and as the power to make very many of them could not be disputed without denying the right of the political community to prosper and advance, it is obvious that many rights, privileges, and exemptions which usually pertain to ownership under a particular state of the law, and many reasonable expectations, cannot be regarded as vested rights in any legal sense.” (Citation and punctuation omitted.) Goldrush II v. City of Marietta, 267 Ga. 683, 697 (482 SE2d 347) (1997). In Goldrush II, the Supreme Court held that the holders of annually renewable liquor licenses had no vested right in the renewal of those licenses that would prevent retrospective application of a city ordinance amending the requirements for such licenses.

We find that Whipple’s right to stable horses at her city residence is based upon even less solid ground: the absence of any then existing law preventing it. We conclude, therefore, that the deprivation of Whipple’s right to use her property to stable horses was not the deprivation of a vested right. It follows that this deprivation did not entitle her to bring an action under 42 USC § 1983. Finding no other deprivation of any right of Whipple secured by the Constitution and laws of the United States that could give rise to a claim under § 1983, we conclude that the trial court correctly determined that Whipple could not maintain such an action.

5. For similar reasons, Whipple cannot show inverse condemnation. To recover under such a theory, Whipple was required to show that some element of her “private property” was taken for a public purpose. State Bd. of Ed. v. Drury, 263 Ga. 429, 431 (437 SE2d 290) (1993). The “private property” she claimed here was her right and ability to keep horses in the city. But to show a property interest in a benefit, one “must have more than an abstract need or desire for it. He must have more than [a] unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it.” (Citation and punctuation omitted.) Id. Because Whipple had no entitlement to keep horses, her .desire to do so was subordinate to the city’s concerns for the general health and welfare when the city exercised its police power in a valid manner.

Decided March 17, 1998.

Almand & Wiggins, O. Hale Almand, Jr., Debra Csikos-Vandrasik, for appellant.

Roberts, Roberts & Ingram, Guy V. Roberts, Jr., for appellees.

Because Whipple’s claims are barred for several reasons, the trial court did not err in granting summary judgment to defendants.

Judgment affirmed.

Birdsong, P. J., and Beasley, J., concur. McMurray, P. J., disqualified.

       The provisions of OCGA § 36-33-5 do not apply to actions filed pursuant to 42 USC § 1983. Armour v. Davidson, 203 Ga. App. 12 (1) (416 SE2d 92) (1992).


text:
    A97A2260.
    ECKLAND v. HALE & ECKLAND, P.C. et al.
    (498 SE2d 358)
   McMurray, Presiding Judge.

Attorney Ron D. Eckland filed a petition to dissolve a professional corporation known as Hale & Eckland, P.C. (“the firm”), alleging that he and attorney William H. Hale II each own a half interest in the firm; that attorney Hale misappropriated firm assets; that attorney Hale controls the firm’s financial records, and that attorney Hale “has failed and refused to make [the firm’s financial records] available for inspection by Mr. Eckland.” Attorney Hale filed a responsive pleading, agreeing that the firm should be dissolved; denying that he misappropriated firm assets, and alleging that attorney Eckland did not pay his share of the firm’s debts. Attorney Hale also asserted a counterclaim for attorney fees and litigation expenses, alleging that attorney Eckland’s “stubborn litigiousness has necessitated that this controversy be resolved by litigation.”

The trial court entered an order directing certain cash payments and distributions based on a court-appointed custodian’s evaluation of the firm’s finances. Although the trial court refers to this judgment as a “final” order, the trial court did not resolve attorney Hale’s counterclaim for attorney fees and litigation expenses. Nor did the trial court order the firm’s dissolution pursuant to OCGA § 14-3-1433.

Decided March 17, 1998.

Ron D. Eckland, pro se.

Smith, Gambrell & Russell, Edward K. Smith, for appellees.

Attorney Eckland, appearing pro se, filed this direct appeal from the trial court’s interlocutory order. Held:

1. As the firm’s final dissolution remains pending, because attorney Hale’s counterclaim for attorney fees and litigation expenses remains pending, and because the trial court did not enter an express determination of finality under OCGA § 9-11-54 (b), the interlocutory appeal procedures set forth in OCGA § 5-6-34 (b) were required to be followed to appeal the trial court’s order directing certain cash payments and distributions based on the court-appointed custodian’s evaluation of the firm’s finances. Miller v. Warner Bros., Inc., 228 Ga. App. 469 (492 SE2d 353); Knowles v. Old Spartan Life Ins. Co., 213 Ga. App. 204, 205 (2) (444 SE2d 136). Attorney Eckland’s failure in the case sub judice to comply with the requisite interlocutory procedures deprives this Court of jurisdiction. This appeal must therefore be dismissed.

2. We do not transfer this appeal to the Supreme Court of Georgia because of the circumstances in Crocker v. Stevens, 210 Ga. App. 231, 232 (1) (435 SE2d 690).

3. We reject appellee Hale’s request for sanctions pursuant to Court of Appeals Rule 15 (b). Although we are not able to discern any reasonable ground upon which Eckland could have anticipated a reversal, we cannot say the appeal was entirely frivolous. See Blomberg v. Cox Enterprises, 228 Ga. App. 178, 180 (2) (491 SE2d 430).

Appeal dismissed.

Beasley and Smith, JJ., concur.