author: Blackburn, Judge.

text:
    A98A0460.
    EASTSIDE PROPERTIES v. DEPARTMENT OF TRANSPORTATION.
    (498 SE2d 769)
   Blackburn, Judge.

Eastside Properties brought an inverse condemnation action against the Georgia Department of Transportation (DOT), claiming that the DOT’s construction of certain traffic control devices which diminished access to its property gave rise to a compensable taking. The trial court granted summary judgment in favor of the DOT, and we affirm.

In reviewing a 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). “To prevail at summary judgment under OCGA § 9-11-56, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law. A defendant may do this by showing the court that the documents, affidavits, depositions and other evidence in the record reveal that there is no evidence sufficient to create a [genuine] jury issue on at least one essential element of plaintiff’s case. ... A defendant who will not bear the burden of proof at trial need not affirmatively disprove the nonmoving party’s case; instead, the burden on the moving party may be discharged by pointing out by reference to the affidavits, depositions and other documents in the record that there is an absence of evidence to support the nonmoving party’s case_,” (Citation and emphasis omitted.) Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

Eastside owns certain property near the intersection of Young’s Mill Road, Commerce Avenue, and Hogansville Road in LaGrange, Georgia. Eastside’s property has a single driveway abutting Young’s Mill Road, at a point just south of the intersection. To improve the flow of traffic and increase safety, the DOT reconfigured this intersection, constructing traffic control devices such as raised traffic islands and striped island markings and repositioning traffic “stop bars.” These modifications were made to prevent unsafe and uncontrolled movements of traffic across and along the public streets in question. The DOT project did not physically alter Eastside’s driveway.

Eastside contends that the DOT project affected the use of its property in several ways. First, Eastside argues that the repositioning of a stop bar associated with a nearby traffic signal from the south to the north of its entrance to Young’s Mill Road resulted in the blockage of such entrance more than 50 percent of the time on each business day. In other words, Eastside contends that cars stopped at the traffic signal blockade its driveway entrance. In addition, East-side argues that the construction of a traffic island and accompanying traffic lines limits its access to the other roads in the intersection; however, Eastside’s access has not been removed, only made more circuitous. Eastside claims that the DOT’s traffic project has thus diminished the value of its property by at least $135,000.

Viewing the evidence in the light most favorable to Eastside, there is no question that gaining access to the public roads comprising the intersection from its property may have been made more difficult. However, the relevant issue here is whether this increased difficulty constitutes a compensable taking.

Whether there is a compensable taking of an adjoining property owner’s easement of access to a public road is a question of law to be determined by the court. MARTA v. Fountain, 256 Ga. 732, 733 (352 SE2d 781) (1987). “In order to determine whether inconvenience of access to a public road is compensable ... it must first be determined whether the inconvenience is that which is shared by the public in general, which is not compensable, or that which is special to the landowner, which is compensable.” Dept. of Transp. v. Taylor, 264 Ga. 18,19-20 (3) (a) (440 SE2d 652) (1994). “Inconvenience shared by the public in general, such as changing the traffic pattern from two-way to one-way traffic, Dept. of Transp. v. Katz, 169 Ga. App. 310 (312 SE2d 635) (1983); placing a permanent dead end across a road a short distance from the property, Tift County v. Smith, 219 Ga. 68 (131 SE2d 527) (1963); circuity of travel, i.e., changes resulting in [a] longer drive to reach a particular destination, Floyd County v. Griffin, 109 Ga. App. 802 (137 SE2d 483) (1964), State Highway Department v. Cantrell, 119 Ga. App. 241 (166 SE2d 604) (1969); and change of traffic pattern, Dougherty County v. Snelling, 132 Ga. App. 540 (208 SE2d 362) (1974) are not compensable.” Id. at 20 (3) (b). Furthermore, “if [a landowner] has the same access to the highway as he did before the closing, his damage is not special,. . . although it may be greater in degree, as that of the general public, and he has lost no property right for which he is entitled to compensation.” (Punctuation omitted.) Id. at 20 (3) (c).

Decided March 13, 1998.

Rosensweig, Karn, Jones & MacNabb, Joseph P. MacNabb, for appellant.

Thurbert E. Baker, Attorney General, Daniel M. Formby, Deputy Attorney General, Ray O. Lerer, Senior Assistant Attorney General, Cathy A. Cox-Brakefield, Assistant Attorney General, for appellee.

In Taylor, supra, the Supreme Court considered claims by the plaintiff that the DOT’s taking of .076 acres of his land and widening of a bridge damaged him because it would cause a backup of traffic resulting in increased difficulty entering and exiting his property. The Court held that “[s]uch evidence does not relate to inconvenience or difficulty of access caused by any physical alteration or obstruction to [the plaintiff’s] former (pre-take) access; rather, it relates to inconvenience caused by traffic flow and traffic volume, an inconvenience shared by the public in general. Unless the changes include items which amount to a taking of [the plaintiff’s] property, such as installing curbs which prevent access to his adjacent property, the claim for damage is common with that which might be made by the general public, and is not recoverable.” (Punctuation omitted.) Id. at 21 (3) (c).

Here, as in Taylor, the plaintiff’s driveway has not been altered, and it still accesses the same public road it did prior to the DOT project. Only the flow of traffic has been altered, which in turn causes some inconvenience to Eastside. This inconvenience, however, does not give rise to a compensable taking which would support Eastside’s claim of inverse condemnation. See Taylor, supra; Dept. of Transp. v. Bridges, 268 Ga. 258 (486 SE2d 593) (1997).

Judgment affirmed.

McMurray, P. J., and Eldridge, J., concur.

       We note that some of the maneuvers across the intersection which Eastside claims are now prevented are the same uncontrolled maneuvers which the DOT intended to prevent in order to increase public safety and avoid confusion by drivers.


source: Caselaw Access Project

author: Ruffin, Judge.

license: Public Domain

text:
    A97A1760.
    DECKER v. THE STATE.
    (498 SE2d 789)
   Ruffin, Judge.

A jury found John Decker guilty of entering an automobile in violation of OCGA § 16-8-18. After the trial court denied Decker’s motion for new trial, he appealed, asserting as error the exclusion of evidence and the failure to charge the jury on corroboration. We affirm for reasons which follow.

Viewed in a light most favorable to support the verdict, the evidence shows that on June 19, 1994, Steven Williams, a City of Canton police officer, stopped and arrested the driver of a Pontiac Sunbird. Michael Jenkins, another Canton officer, assisted Williams in performing an inventory search of the Sunbird. Among the items found in the trunk of the car was a Sega Genesis game machine. Although Jenkins notified the police department radio dispatcher that he found a Sega Genesis machine in the car and gave the dispatcher the serial number to the machine, he failed to list the machine on the inventory report. After finishing the inventory the officers waited for the arrival of a wrecker to tow the Sunbird to an impound yard. Decker, who was employed at the time by R&R Wrecker Service (“R&R”) located in Canton, Georgia, arrived to tow the car to the R&R impound lot. According to Officer Jenkins, he never advised Decker that there were any valuables in the trunk of the car that needed to be secured.

Decker stated that he was present during the search of the trunk and that he saw the Sega Genesis, which the officers left in the trunk. After receiving a copy of the inventory report that Jenkins completed, Decker towed the Sunbird to the R&R lot, which is surrounded by a barbed wire fence and a locked gate. Decker said that he attempted to secure the car, but that the door and trunk locks had been removed. The officers testified at trial, however, that the locks were functional. According to Decker, the next day a young man asked him about the Sunbird. An hour later the man came back with two other men and again inquired about the car. Decker told them that he could not release the Sunbird without authorization from the Canton Police Department. According to Decker, he noticed the men repeatedly drive by later that day and decided to remove the Sega Genesis and other valuables from the car. He placed the Sega Genesis and other items on the floor of the R&R office. Decker testified that later, his children, who frequented the R&R office, advised him that they had played the Sega Genesis with Jason Ray, the 16-year-old son of James Ray, the owner of R&R.

Jason Ray testified at trial, noting that he and Decker worked at the R&R office in Canton. According to Ray, he returned to work the day after Decker towed the Sunbird to the lot. When he came into work, he saw the Sega Genesis system already hooked up to the office’s television. Ray testified that Decker told him that he purchased the machine for his children and that his children had hooked it up in the office. Ray later released the Sunbird to a young man who had obtained the proper authorization from the police department. The man came back later, however, to complain that the Sega Genesis and tapes that went with the machine were missing from the car. Ray checked the inventory report completed by Officer Jenkins and did not see the machine listed. Subsequently, the police investigated the incident and found that the Sega Genesis machine in use at the R&R office was the same machine from the trunk of the Sunbird. Ray testified that R&R does not have a policy of securing valuables from impounded cars.

Police officers questioned Decker about the Sega Genesis game. In a taped statement to the officers, Decker recalled towing the Sun-bird, but initially denied having any knowledge about the game. After being confronted by the officers with the fact that the game in the R&R office was the same one missing from the trunk of the Sun-bird, Decker stated “I’ll be honest, I got it out and borrowed it, while it was there. But my intentions were to return it to the case, and I did not return it. . . .” Decker subsequently denied telling Ray that he had purchased the Sega Genesis.

During the trial, Decker sought to introduce the City of Canton ordinance and the Cherokee County Code which addressed the responsibilities of vehicles for hire, including tow trucks working for wrecker services. The trial court admitted the Canton ordinance, since R&R wrecker service operated in the City of Canton and Decker towed the Sunbird from a location within the city at the request of Canton police. However, the trial court refused to admit the Cherokee County Code because the county attorney testified that the code would not apply to vehicles for hire or companies who contract with the City of Canton to tow vehicles for the Canton Police Department. The trial court agreed with the prosecution that this was a City of Canton matter and that the Cherokee County Code was irrelevant.

The trial court also prohibited Decker from introducing any evidence that drugs were found in the Sunbird by the Canton police prior to its impound. The trial court concluded that the evidence of why the arrest and impound were necessary was not relevant. Rather, the court found that the only relevant evidence was that the Sunbird was impounded.

After the jury began deliberations, it asked and received from the trial court permission to hear Decker’s taped statement to the police officers. Prior to playing the statement, Decker orally requested a jury charge on corroboration, which the trial court denied. The jury subsequently found Decker guilty of entering an automobile.

1. In his appeal, Decker asserts that the Cherokee County Code and the evidence that drugs were found in the car were relevant to show his reasons for removing the Sega Genesis from the car. He argues that the trial court’s rejection of this evidence was reversible error. We disagree.

“As a general rule, admission of evidence is a matter resting within the sound discretion of the trial court, and appellate courts will not disturb the exercise of that discretion absent evidence of its abuse. [Cit.]” Harmon v. State, 224 Ga. App. 890, 892 (2) (482 SE2d 730) (1997). We note, however, “ ‘ “the Georgia rule favors the admission of any relevant evidence, no matter how slight its probative value.” ’ [Cits.]” Snelling v. State, 215 Ga. App. 263, 265 (1) (b) (450 SE2d 299) (1994). Further, “[a]ny evidence is relevant which logically tends to prove or to disprove a material fact which is at issue in the case, and every act or circumstance serving to elucidate or to throw light upon a material issue or issues is relevant.” (Citations and punctuation omitted.) Id.

Decided March 16, 1998.

Jason R. Hasty, for appellant.

As the testimony was undisputed that the Cherokee County Code did not apply to Decker’s impounding of the Sunbird at the request of Canton police, the trial court properly excluded this evidence as irrelevant. It in no way tended to prove or disprove a material fact at issue. Snelling, supra.

Additionally, the fact that police found a burnt marijuana cigarette in the Sunbird during the arrest had no bearing on whether Decker entered the automobile with the intent to steal the Sega Genesis. Accordingly, the trial court did not abuse its discretion in excluding any mention of this evidence, given the absence of any connection between that evidence and Decker’s actions. Snelling, supra.

2. Decker also asserts that the trial court erred in failing to give an additional jury charge on corroboration after the jury listened to his taped statement during deliberations.

“As a general rule, the need, breadth, and formation of additional jury instructions are left to the sound discretion of the trial court. [Cit.]” (Punctuation omitted.) Miller v. State, 221 Ga. App. 718, 719 (1) (472 SE2d 697) (1996).

In this case, there was evidence apart from Decker’s statement on which the jury could have relied in finding him guilty of the offense charged. Accordingly, the trial court was not required to charge the jury that an uncorroborated confession could not by itself warrant a conviction. See Carswell v. State, 179 Ga. App. 56, 59 (345 SE2d 66) (1986). Rather, it was in the discretion of the trial court to charge this issue, and its refusal to give the charge was not an abuse of the court’s discretion. See id. at 60.

Judgment affirmed.

Birdsong, P. J, and Senior Appellate Judge Harold R. Banke concur.

Garry T. Moss, District Attorney, Cecelia Harris, Assistant District Attorney, for appellee.


author: Birdsong, Presiding Judge.

text:
    A97A2032.
    In the Interest of M. L. P. et al., children.
    (498 SE2d 786)
   Birdsong, Presiding Judge.

Cheryl Penamon appeals the termination of her parental rights. The trial court issued an extensive order containing findings of fact and conclusions of law, including the finding that for three years prior to the hearing, these two children, ages four years and five years, had been in the custody of the Monroe County Department of Family & Children Services by previous unappealed orders of the court; that the agency was first granted temporary custody in 1993 because the mother had left three young children abandoned; that numerous efforts to reunify the mother with the children had failed; that the mother failed to visit the children pursuant to these reunification plans and has failed to maintain adequate housing; that since August 1993 the mother has moved eleven times and has had six jobs; that in 1994 DFACS refused to return the children to the mother because of her living conditions; and that there are no relatives willing to care for either of these children. For its conclusion that clear and convincing evidence supports termination of the mother’s rights, the trial court extensively recited and relied upon the findings of a citizen’s judicial review panel; the court’s conclusion that there is a lack of bonding between the mother and the children came solely from a finding by the citizen’s review panel.

The trial court’s statement of the seminal evidence that the mother abandoned her children is as follows: “This mother was back in Juvenile Court with these 2 children and a 3rd child . . . and temporary custody was granted to DFACS on 18 August, 1993 because this mother had left her young children unattended. She stated to someone [that she could not deal with all three children at the same time] — (the court took judicial notice of this on the previous case involving this mother and the same parties).” (Emphasis supplied.) Held:

Before parental rights may be terminated there must be clear and convincing evidence of present unfitness. OCGA § 15-11-81. As there is no judicial determination that has more drastic significance than the permanent severance of a natural parent-child relationship, the severance of those rights must be exercised most cautiously and scrutinized deliberately. McCormick v. Dept. of Human Resources, 161 Ga. App. 163 (288 SE2d 120).

The record contains evidence that since appellant moved to Griffin, Georgia, in 1996, her situation has improved; that she has obtained an apartment, found a job and is financially independent of her parents; that she has visited her children except when she encountered transportation problems; that she believed she was complying with DHR’s requirements; and that she has provided Christmas and birthday presents for her children and provided necessities even after automatic payroll deductions were stopped.

Appellant’s mother, who previously was in agreement that the children should be removed from appellant, testified that in the past year appellant’s attitude toward everyone had changed, that appellant was working and taking care of her home and was properly caring for the other child who remains in her custody.

The DHR’s primary witness for termination of appellant’s parental rights was a caseworker who worked with appellant only briefly, from May 1996 to December 1996, and who had never spoken with appellant’s employers in Griffin and has never visited appellant’s home in Griffin. A caseworker who supervised appellant from July 1996 to September 1996 testified that appellant was making progress on the reunification plan and that the child now in appellant’s custody is cared for appropriately and their home is clean. This caseworker refused to state an opinion that it was appropriate to terminate appellant’s parental rights and stated that she was not comfortable recommending that the parent-child relations be severed although she would not hesitate to do so in an appropriate case. This caseworker also testified that M. L. P. and M. D. P. have a “strong attachment” to their mother.

The trial court based its decision in part, or in chief, on certain records of a “citizen’s review panel” which contained hearsay evidence. See In the Interest of J. T. S., 185 Ga. App. 772 (365 SE2d 550). Such documents are not clear and convincing evidence of present parental unfitness. OCGA § 15-11-41 (c) provides for the participation of a citizen’s review panel in consultation with the DFACS in these cases. See, e.g., In the Interest of H. L. W., 229 Ga. App. 264 (493 SE2d 637); In the Interest of S. A. W., 228 Ga. App. 197 (491 SE2d 441). The recommendations of a “citizens review panel” can be afforded no legal weight by the trial court as a substitute for the court’s own findings of fact in compliance with OCGA § 15-11-81. The citizen’s review panel’s findings of fact and recommendations are not legal evidence as the panel is not a court of record and its actions are not necessarily in compliance with regard to legal due process considerations. The court of record in these cases is the juvenile court, and its findings must be based on legal evidence and constitutional considerations. See OCGA § 15-11-65. The review panel is authorized to participate in the formulation of reunification plans which may become orders of the court (OCGA § 15-11-41 (c)), but the panel’s factual findings are not evidence if it amounts to hearsay.

Decided March 16, 1998.

Ham, Jenkins, Wilson & Wangerin, Kevin A. Wangerin, for appellant.

Thurbert E. Baker, Attorney General, Jeffrey L. Milsteen, Deputy Attorney General, William C. Joy, Senior Assistant Attorney General, Shalen A. Sgrosso, Stephanie M. Baldauff, Assistant Attorneys General, W. Ashley Hawkins, for appellee.

We find no law or precedent which authorizes termination of parental rights by a trial court on findings almost exclusively based on findings of a citizen’s review panel. A weakness of the DHR’s case is proved by its heavy reliance on the recommendations of a “citizen’s review panel” and on appellant’s past parental unfitness which was obviously not so severe as to require the DHR to seek to terminate her parental rights at that time.

Although the record and transcript in this case may provide clear and convincing competent evidence of the mother’s present unfitness such as to authorize termination of her parental rights, we are unable to find such evidence on the face of the trial court’s order in this case. The case is remanded for issuance of an order based on competent evidence given at the hearing and in compliance with OCGA § 15-11-81.

Judgment reversed.

Ruffin and Eldridge, JJ, concur.


author: Smith, Judge.

text:
    A97A2187.
    CHASTAIN v. THE STATE.
    (498 SE2d 792)
   Smith, Judge.

Anthony Wynn Chastain was convicted by a jury of driving under the influence of alcohol to the extent it was less safe for him to drive, OCGA § 40-6-391 (a) (1), violating the open container law, OCGA § 40-6-253 (b), and failing to maintain lane, OCGA § 40-6-48 (l). He appeals his convictions and the sentence imposed by the trial court on the open container charge.

1. In his first enumeration of error, Chastain challenges the constitutionality of OCGA § 40-6-392 (f), which provides that a properly prepared certificate of inspection showing that a breath-testing instrument is in good working order shall be self-authenticating and admissible in court. Assuming without deciding that Chastain correctly preserved this enumeration for appellate review, we note that the Supreme Court already has upheld the constitutionality of OCGA § 40-6-392 (f). Brown v. State, 268 Ga. 76 (485 SE2d 486) (1997). Accordingly, this enumeration is without merit.

2. In his second enumeration of error, Chastain contends the trial court erred in admitting into evidence, over his best evidence objection, photocopies of the certificates required by OCGA § 40-6-392 (f) rather than the originals. At the time the certificates were offered as evidence by the State, the prosecutor explained that photocopies of the certificates were used because the originals needed to remain at the jail.

“OCGA § 24-5-4 (a) requires that ‘(t)he best evidence which exists of a writing sought to be proved shall be produced, unless its absence shall be satisfactorily accounted for.’ Here the originals were accounted for and there is no evidence that the photocopies were not exact duplicates of the original certificates. Under these facts, the trial court did not abuse its discretion in admitting photocopies of the certificates of inspection. [Cits.]” Fantasia v. State, 268 Ga. 512, 514-515 (3) (491 SE2d 318) (1997) (original certificates cannot be submitted into evidence at every trial in which they are needed).

Even assuming the trial court erred in admitting the photocopies, we find that any such error was harmless because Chastain was charged with OCGA § 40-6-391 (a) (1) (less safe driver) and not OCGA § 40-6-391 (a) (5) (blood alcohol concentration) and the State never relied on the Intoxilyzer 5000 results to prove Chastain was driving under the influence. See, e.g., Flowers v. State, 181 Ga. App. 572 (2) (353 SE2d 69) (1987) (admission of cumulative evidence is harmless error).

3. In his third enumeration of error, Chastain argues the trial court erred in sustaining the State’s objection, on the grounds of relevancy, to trial counsel’s questioning of the arresting officer during a Jackson-Denno hearing. Chastain contends his counsel had a right to cross-examine the witness to determine whether Chastain was in custody at the time he made incriminating statements and, if so, whether Chastain had been advised of his Miranda rights.

We need not decide whether trial counsel’s continued questioning of the witness was relevant because even if it was error to sustain the State’s objection, any such error was harmless. Our examination of the record satisfies us that at the time Chastain made his statements, the arresting officer was merely conducting a routine investigation following a valid traffic stop. A police officer may briefly detain a motorist for roadside questioning following a routine traffic stop without advising the motorist of his or her rights against self-incrimination. See State v. Peters, 222 Ga. App. 484 (474 SE2d 623) (1996); Crum v. State, 194 Ga. App. 271, 272 (390 SE2d 295) (1990). Inasmuch as the trial court did not err in finding that Chastain was not under arrest or in custody at the time he made these statements, it necessarily follows that the trial court did not err in sustaining the State’s objections on relevancy grounds.

4. At the conclusion of his trial, Chastain was sentenced to two days in jail with credit for time served, twelve months probation, and a fine of $1,225 on the charge of driving under the influence; twelve months probation consecutive to the sentence on the charge of driving under the influence and a fine of $125 on the charge of open container; and twelve months probation concurrent on the charge of failure to maintain lane and a fine of $62.50. In his fourth enumeration of error, Chastain argues that because Georgia’s open container law, OCGA § 40-6-253, makes no provision for incarceration, the trial court’s sentence of 12 months probation was impermissible.

Under OCGA § 40-6-253 (b), it is unlawful for any person to operate a vehicle in this state while in possession of an open container of any alcoholic beverage. OCGA § 40-6-253 (c) further provides: “Any person who violates this Code section is subject to a fine not to exceed $200.00.” Despite the plain and unambiguous language of this statute, the trial court sentenced Chastain to 12 months probation and a fine of $125, apparently relying upon the general penalty provisions of OCGA § 17-10-3 (a) (1), which set the maximum penalty for the commission of a misdemeanor at 12 months in jail and a $1,000 fine.

On appeal, the State argues that the trial court acted within its discretion in sentencing Chastain to probation under OCGA § 17-10-3 (a) (1) because all violations of the Uniform Rules of the Road (OCGA § 40-6-1 et seq.), including violations of the open container law, are misdemeanors pursuant to OCGA § 40-6-1. The only limitation imposed by OCGA § 40-6-253 (c) on Chastain’s punishment, according to the State, is that the fine portion of the sentence cannot exceed $200. We disagree.

“In resolving this issue, we look to the literal language of the statute, the rules of statutory construction and rules of reason and logic, the most important of which is to construe the statute so as to give effect to the legislature’s intent. [Cit.]” State v. Nix, 220 Ga. App. 651, 652 (1) (469 SE2d 497) (1996). Further, “[p]enal statutes are always construed strictly against the State and liberally in favor of human liberty and 24 CJS 1193, Criminal Law, 1979 states: ‘Statutes prescribing punishment are strictly construed, and must be construed together. They never are construed against an accused or a convicted person beyond their literal and obvious meaning. . . . If a statute creating or increasing a penalty is capable of two construetions, it should be construed so as to operate in favor of life and liberty.’ ” (Citations omitted.) Gee v. State, 225 Ga. 669, 676 (7) (171 SE2d 291) (1969). Finally, “[w]here a crime is penalized by a special law, the general provisions of the penal code are not applicable.” (Punctuation omitted.) Curtis v. State, 102 Ga. App. 790, 802 (118 SE2d 264) (1960). See also Gee, supra.

With these principles in mind, and applying them to the facts of this case, we find that the State is incorrect in its assertion that OCGA § 40-6-1 characterizes all violations of the Uniform Rules of the Road as misdemeanors. To the contrary, the statute provides: “It is unlawful and, unless otherwise declared in this chapter with respect to particular offenses, it is a misdemeanor for any person to do any act forbidden or fail to perform any act required in this chapter.” (Emphasis supplied.) Different punishment schemes therefore are contemplated by this statute. First, punishment for violations of Code sections that have not “otherwise declared” their own penalties will be as provided for in OCGA § 17-10-3. Second, violations of Code sections that have criminalized certain acts and also have prescribed particular punishments for such acts will be controlled by the specific penalties imposed by those Code sections and not by the general law. This interpretation is entirely consistent with the rules of construction set forth in Curtis, supra at 801-802.

Because OCGA § 40-6-253 criminalizes the act of operating a vehicle while in possession of an open container of alcohol and also prescribes its own punishment for such an act (i.e., a fine not to exceed $200), we find the punishment for violations of this Code section to be governed by the specific statute, OCGA § 40-6-253 (c), and not by the general misdemeanor statute. To hold otherwise would completely defeat the clear legislative intent of providing for different types of punishment, other than misdemeanor treatment, with respect to particular offenses created by this statute.

Because the trial court erred in sentencing Chastain to 12 months probation on his conviction for violating the open container law, this case must be remanded for resentencing in accordance with OCGA § 40-6-253 (c), which limits punishment to a fine of not more than $200.

Judgment of conviction affirmed, sentence vacated in part, and case remanded for resentencing.

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

Decided March 16, 1998.

Conrad & Abernathy, Eric A. Ballinger, for appellant.

G. Channing Ruskell, Solicitor, Thomas J. Melanson, Assistant Solicitor, for appellee.

       The trial court directed a verdict of acquittal on a fourth charge of driving with a suspended license, OCGA § 40-5-121 (a).

       Other Code sections in this chapter provide for “other than misdemeanor treatment” for particular offenses. See, e.g., OCGA § 40-6-226 (f) (imposes different levels of punishment for various handicapped parking violations).


author: Blackburn, Judge. • Andrews, Chief Judge,

text:
    A97A2377.
    DOMAN v. BANDERAS.
    (499 SE2d 98)
   Blackburn, Judge. •

Alexander Doman, M.D., appeals the trial court’s order granting to defendant, Julio C. Banderas, M.D., his motion for summary judgment. Doman brought the underlying action against Banderas alleging that Banderas published four false, defamatory letters which damaged his medical practice and reputation as a physician. The trial court found that the defamation suit was precluded by the doctrine of res judicata because Doman could have raised the defamation claims in a prior action in which he obtained a judgment against Banderas for breach of agreements concerning Doman’s purchase of Banderas’ medical practice and for tortious interference with Doman’s business and medical practice. Doman contends the trial court erroneously applied res judicata to preclude the present action.

Prior to the present suit, Doman filed a suit against Banderas on May 7, 1993, alleging that Banderas breached agreements between the parties controlling Doman’s purchase of Banderas’ medical practice. The prior suit, which was assigned to the same judge as the present action, sought a temporary restraining order and an order compelling arbitration under the terms of the agreements. An order was entered effective May 13, 1993, which restrained the parties from filing other actions against each other during the pendency of that action “except for claims or counterclaims which may be asserted in this litigation or in any arbitration proceeding ordered by this Court.” (Emphasis supplied.)

On July 29, 1993, the trial court ordered the parties to arbitrate their disputes in accordance with the agreements. Pursuant to the arbitration provisions of the agreements, the parties selected arbitrators, and on February 18, 1994, they submitted a statement of questions in dispute to be decided by the arbitrators. In addition to submitting questions as to whether or not Banderas violated provisions of the agreements, Doman also submitted the following question to the arbitrators: “Whether Banderas tortiously, wrongfully and/or maliciously interfered with the business and medical practice of Doman.”

When Doman submitted the statement of disputed questions to the arbitrators in the prior action on February 18, 1994, three of the four letters had been written, although none had been written when he filed the action on May 7, 1993. Pursuant to discovery conducted after the disputed questions were submitted, Doman had learned of the existence of all four letters. After discovering the letters, Doman filed a motion on July 8, 1994, asking the trial court to lift any restraint of the parties from filing additional claims which accrued after May 13, 1993. On July 12, 1994, the trial court granted this motion, and Doman was without question free to amend his arbitration case to include the defamation action. The July 12, 1994 amendment did not excuse Doman from complying with the law. It simply removed any doubt that he could proceed with his defamation action in the then pending case. This holding was by the same trial judge who executed the original restraining order and the July 12, 1994, amendment thereto.

In his motion, Doman stated that he had become aware of a libel claim he had against Banderas based on two letters written by Banderas, the first of which was published on July 15, 1993. The motion further stated that the one-year statute of limitation (see OCGA § 9-3-33) was about to expire on the libel claim and that it was not clear whether the arbitrators would consent to the addition of a libel claim to the pending arbitration. Banderas responded to the motion stating that he had no objection to the proposed modification of the restraining order. He pointed out that the original restraining order did not prevent the libel claim from being asserted in the pending litigation or arbitration.

The arbitrators entered an order finding that they had the authority “to hear and resolve tort claims between the parties that are raised in proper form.” We held in Banderas, supra at 198-199, that the arbitrators acted within the scope of their authority in concluding that tort claims were covered under the arbitration provisions in the agreements.

After the restraining order was modified, Doman did not seek to amend his existing case but rather filed the present defamation action on July 13, 1994, and later amended same. Although the amended complaint also refers to alleged defamatory statements made by Banderas on March 1, 1994, “and at other times during the course of 1993 and 1994,” Doman concedes in his appellate brief that the present defamation action is based on the four allegedly libelous letters of July 15, 1993, July 26, 1993, November 10, 1993, and February 23, 1994.

The hearing on the disputed questions before the arbitrators was conducted from October 3 through 6, 1994. At the hearing, Doman presented evidence of two of the letters written by Banderas which support the present defamation action — the June 11 and July 26 letters. He contended the letters not only breached the purchase agreements but were part of a plan by Banderas to tortiously interfere with and damage his medical practice. Doman testified that both letters contained false allegations which damaged his medical practice and his reputation in the medical community.

Although Doman asserts that, prior to the hearing, he withdrew any claim in support of the tortious interference issue that Banderas tried to limit his hospital privileges and discredit him at Southern Regional Medical Center, the evidence Doman presented as to the June 11 and July 26 letters sent by Banderas to Southern Regional belies this assertion. Doman also presented expert testimony that these two letters, along with other actions taken by Banderas, resulted in damage of about $1,000,000 to his medical practice. The complaint as amended in the present action indicates that the two remaining letters of November 10, 1993, and February 23, 1994, were also written by Banderas in connection with the arbitrated dispute. However, there is no evidence as to these letters in the arbitration hearing record.

The arbitrators issued their decision on December 6, 1994. They found that Banderas had violated various provisions of the purchase agreements and that he had “tortiously, wrongfully and/or maliciously interfered with the business and medical practice of Doman.” In addition to other damages awarded to Doman, the arbitrators Doman $500,000 “for general damages for breach of contract and for tortious interference with business and professional practice.” The arbitration decision was confirmed as the judgment of the trial court, and the judgment was later affirmed on appeal in Banderas, supra.

1. Georgia’s common law doctrine of res judicata is codified in OCGA § 9-12-40, which provides that: “A judgment of a court of competent jurisdiction shall be conclusive between the same parties and their privies as to all matters put in issue or which under the rules of law might have been put in issue in the cause wherein the judgment was rendered until the judgment is reversed or set aside.” Lawson v. Watkins, 261 Ga. 147, 148 (401 SE2d 719) (1991). Accordingly, “[flor a prior action to bar a subsequent action under the doctrine of res judicata, several requirements must be met: The first action must have involved an adjudication by a court of competent jurisdiction; the two actions must have an identity of parties and subject matter; and the party against whom the doctrine of res judicata is raised must have had a full and fair opportunity to litigate the issues in the first action.” (Citations omitted.) Fowler v. Vineyard, 261 Ga. 454, 455-456 (405 SE2d 678) (1991).

In the present case, it is undisputed that there was a prior action between Doman and Banderas which resulted in a judgment in favor of Doman by a court of competent jurisdiction. It is also clear that Doman’s present defamation claims were not adjudicated in the prior action. Whether the doctrine of res judicata precludes Doman’s present action depends on whether the remaining requirements of res judicata have been established: (1) that Doman’s prior and present actions asserted claims concerning the same subject matter, and (2) that Doman had a full and fair opportunity to litigate the present claims in the prior action.

Doman’s present defamation action asserts claims for relief concerning the same subject matter as the prior action by Doman against Banderas. Although the prior action asserted breach of contract and tortious interference claims, and the present suit is a defamation action, all of the claims in both actions concerned the dispute between Doman and Banderas arising from Doman’s purchase of Banderas’ medical practice. See Centrust Mtg. Corp. v. Smith & Jenkins, P.C., 220 Ga. App. 394, 396-397 (469 SE2d 466) (1996); Brinson v. First American Bank, 200 Ga. App. 552, 554-555 (409 SE2d 50) (1991); compare Lawson, supra. In the prior action against Banderas, Doman was required to “assert all claims for relief concerning the same subject matter in one lawsuit and any claims for relief concerning that same subject matter which [Doman did not assert in the prior action] will be res judicata pursuant to OCGA § 9-12-40.” (Emphasis in original.) Id. at 149. Since Doman did not assert the present defamation claims in the prior action, this requirement for res judicata was satisfied.

Doman also had a full and fair opportunity to litigate his present claims in the prior action. Nothing in the trial court’s restraining order or its amendment thereto precluded Doman from bringing the present claims in the prior action. In fact, Paragraph 10 of the trial court’s initial order makes it clear that all the parties’ claims against each other should be brought in the present action. It states: “The entry of this Order shall not operate to prejudice the rights, claims or defenses of any of the parties to this action, and shall not act as waiver or estoppel of any claims, counterclaims or defenses that have been asserted, or could be asserted, in connection with this action.” (Emphasis supplied.) Additionally, the trial judge who wrote the original order in the first action was also the judge who determined that res judicata barred Doman’s claims in the present action.

Doman submitted two of the letters of which he complains in support of his action for interference with the contract between the parties. He contends that these letters, written on June 11, 1993, and July 26,1993, will now support a separate action for defamation. The first action was filed May 7, 1993, but was not heard by the arbitrators until October 3, 1994. Doman carefully states in his affidavit that he did not learn of the letters until after May 7,1993, but fails to establish that he did not learn of them in time to raise the defamation issue before the arbitration hearings which began October 3, 1994. Inasmuch as Doman, in fact, submitted two of such letters into evidence at the arbitration hearing, he cannot now contend that he could not have also asserted a defamation claim based on such letters.

The trial judge correctly determined that Doman was not precluded from bringing the present claims in the prior action. Doman had a full and fair opportunity to litigate such claims in the prior action, which he chose not to pursue. Therefore, the trial court correctly granted summary judgment to Banderas based upon res judicata.

2. Doman contends that Banderas waived his right to assert the defense of res judicata because Banderas consented to the modification of the trial court’s restraining order in the previous action. However, res judicata is an affirmative defense available to defendants who have the burden of properly raising and proving it. See OCGA § 9-11-8 (c); Waggaman v. Franklin Life Ins. Co., 265 Ga. 565 (458 SE2d 826) (1995). In the present case, Banderas properly raised res judicata as an affirmative defense in his answer to Doman’s complaint. Because Doman had the right, and duty, to file all related claims in the first action and the amendment to the trial court’s restraining order did not alter such duty, Banderas’ failure to object to the amendment of such order cannot constitute a waiver of Banderas’ right to raise Doman’s failure to abide by such order as a defense. Doman could have amended the first action to assert these defamation claims well in advance of the hearing and decision of the arbitrators under both the original restraining order and the amended version. Therefore, Banderas did not waive his right to assert the affirmative defense of res judicata by consenting to the modification.

Judgment affirmed.

McMurray, P. J., Beasley and Smith, JJ, concur. Andrews, C. J., Pope, P. J., and Johnson, J., dissent.

Andrews, Chief Judge,

dissenting.

In asserting the doctrine of res judicata as a bar to Doman’s present defamation claims, Banderas had the burden of establishing that: (1) the prior action brought by Doman and Doman’s present defamation action asserted claims concerning the same subject matter; and (2) that Doman had a full and fair opportunity to litigate the defamation claims in the prior action. Fowler v. Vineyard, 261 Ga. 454, 455-456 (405 SE2d 678) (1991); Waggaman v. Franklin Life Ins. Co., 265 Ga. 565 (458 SE2d 826) (1995). I agree that the first requirement for application of the doctrine of res judicata was established by Banderas. But when all the facts relevant to the second requirement for application of the doctrine are weighed, I conclude that Banderas did not carry the burden of establishing that Doman had a full and fair opportunity to litigate the defamation claims in the prior action.

When Doman filed the prior action on May 7, 1993, none of the four letters supporting his present defamation action had been written. He became aware of the defamation claims when he discovered the letters while the prior action was pending. Three of the four letters surfaced during discovery conducted after the case had been ordered to arbitration and after the parties had complied with the arbitrators’ order requiring them to submit a description of all the disputed questions to be addressed in the arbitration. Doman brought the defamation claim to the attention of the trial court in the motion he filed on July 8, 1994. In the motion, Doman informed the trial court that he had discovered a libel claim he had against Banderas based on two letters he had discovered written by Banderas, the first of which was published on July 15, 1993. The motion informed the court that the one-year statute of limitation (see OCGA § 9-3-33) was about to expire and stated that it was not clear whether the arbitrators would consent to an amendment of the disputed questions for the addition of a libel claim to the pending arbitration. The motion urged the trial court to amend an existing restraining order prohibiting any separate actions by the parties so that Doman could bring a separate defamation action. Banderas responded that he did not oppose the motion. The record also shows that prior to the motion, Banderas had already objected to one attempt by Doman to amend the disputed questions to add a fraud claim after the discovery period had expired. The arbitrators subsequently upheld Banderas’ objection and rejected this attempt by Doman to amend the disputed questions as untimely. The trial court granted Doman’s motion and entered an order on July 12,1994, modifying the restraining order to allow Doman to bring a separate defamation action. On July 13,1994, Doman filed the present defamation action alleging that Banderas libeled him by publishing two letters to Southern Regional Medical Center on July 15, 1993, and July 26, 1993. Doman amended the present action on November 28, 1994, alleging that Banderas also libeled him by publishing additional letters damaging to his medical practice on November 10, 1993, and February 23, 1994.

The trial court’s July 12 order did not prohibit Doman from seeking permission to litigate the defamation claim in the pending arbitration, nor did Doman seek an order pursuant to OCGA §§ 9-11-13 (i) and 9-11-42 (b) separating the defamation claim from the other claims in the prior action. See Fowler, supra at 459. Nevertheless, in bringing the present defamation action outside the pending arbitration, several factors militate against the conclusion that Doman had a full and fair opportunity to litigate the defamation claim in the prior action. First, none of the four letters supporting the defamation claim had been written when the prior action was filed. See id. at 458. Secondly, three of the four letters were not discovered until after the prior case had been ordered to arbitration and the time allotted by the arbitrators for submitting a statement of the questions in dispute between the parties had expired. At that point, the parties had already submitted a detailed 52-page statement of disputed questions to the arbitrators. Moreover, the arbitrators subsequently upheld Banderas’ pending objection to an attempt by Doman to amend the statement of disputed questions by adding a fraud claim. Id. Under these circumstances, I cannot agree with the majority’s statement that Doman was, without question, free to amend the arbitration case to include the defamation action. Thirdly, Doman did not attempt in the prior action to surreptitiously reserve the defamation claim for use in a future encounter. See Piedmont Cotton Mills v. Woelper, 269 Ga. 109 (498 SE2d 255) (1998). Rather, he filed a motion in the prior action bringing the claim to the attention of both the trial court and Banderas pointing out that the claim had been recently discovered; that the statute of limitation was about to expire (one week remained before the expiration of the one-year limitation period on the letter published July 15, 1993); and that given the posture of the arbitration proceeding (the disputed questions had already been submitted by the parties and the discovery period had expired), it was questionable as to whether the arbitrators would consent to the late addition of the claim. In light of these facts, he requested that the trial court modify the existing restraining order so that he could bring the claim in a later action. Banderas stated he had no objection, and the trial court modified the restraining order pursuant to Doman’s request.

Although none of these factors precluded Doman from attempting to bring the defamation claim in the prior action, on balance they demonstrate that Doman did not simply forgo litigation of his defamation claims in the prior action despite the full and fair opportunity to do so. Under these circumstances, Doman’s present defamation action is not precluded by the doctrine of res judicata.

I am authorized to state that Presiding Judge Pope and Judge Johnson join in this dissent.

Decided March 16, 1998

Webb, Carlock, Copeland, Sender & Stair, Dennis J. Webb, Marvin D. Dikeman, for appellant.

Sullivan, Hall, Booth & Smith, John E. Hall, Jr., Frederick L. Hubbs, Jr., for appellee.

       Although the trial court characterized its ruling as the grant of Banderas’ motion to dismiss, the record shows that the ruling was, in effect, the grant of Banderas’ alternative motion for summary judgment. See Stripling v. Farmers &c. Bank, 182 Ga. App. 793 (357 SE2d 149) (1987).

       In Banderas v. Doman, 224 Ga. App. 198 (480 SE2d 252) (1997), we affirmed the prior judgment which confirmed an arbitration award in favor of Doman.


text:
    A97A2528.
    INTERNATIONAL INDEMNITY COMPANY v. ROBINSON et al.
    (498 SE2d 795)
   Ruffin, Judge.

We granted International Indemnity Company’s (“International”) application for interlocutory appeal to consider whether the trial court properly denied International’s motion for summary judgment. International sent its notice of appeal by Federal Express overnight delivery to the Superior Court of Cobb County, but it was not received within the ten-day filing requirement of OCGA § 5-6-34 (b). See OCGA § 5-6-37. Consequently, this Court was without jurisdiction to consider the appeal, and it was dismissed.

When the remittitur from the Court of Appeals was filed below, International moved the trial court to vacate its original order denying summary judgment and reinstate the same order, conceding its failure to timely file its notice of appeal, but contending the Court of Appeals’ dismissal of the case was based upon a mere technical deficiency. Upon considering the motion, the trial court vacated its original order denying summary judgment, reinstated the same order instanter, and issued another certificate of immediate review. We granted International’s application to file the instant interlocutory appeal to address: International’s failure to comply with OCGA § 5-6-34 (b) and the trial court’s action in vacating its judgment, reinstating the same judgment, and issuing another certificate of immediate review. For the reasons which follow, we dismiss the appeal.

1. OCGA § 5-6-34 (b) provides: “Where the trial judge in rendering an order, decision, or judgment, not otherwise subject to direct appeal, certifies within ten days of entry thereof that the order, decision, or judgment is of such importance to the case that immediate review should be had, the Supreme Court or the Court of Appeals may thereupon, in their respective discretions, permit an appeal to be taken from the order, decision, or judgment if application is made thereto within ten days after such certificate is granted. . . . Within ten days after an order is issued granting the appeal, the applicant, to secure a review of the issues, may file a notice of appeal as provided in Code Section 5-6-37.” While a grant of summary judgment is subject to direct appeal, OCGA § 9-11-56 (h), which governs the appeal of a denial of a motion for summary judgment, allows the losing party to take advantage of the foregoing interlocutory appeal process. Southeast Ceramics v. Klem, 246 Ga. 294 (1) (271 SE2d 199) (1980).

Although a party has the right, it is essential that the appealing party comply with the interlocutory appeal procedure. In Mitchell v. Oliver, 254 Ga. 112, 113-114 (1) (327 SE2d 216) (1985), the Supreme Court held that if the party appeals from an order granting partial summary judgment and the appeal is dismissed because of its “failure to fulfill procedural requirements,” the same sanction of res judicata which attaches to a final judgment from which a procedurally defective appeal is taken should apply to this party, as well. Furthermore, this procedural default is fatal to the appeal, and thus, the party “is foreclosed from thereafter resubmitting the matter for review on appeal of the final judgment.” Id.

In this instance, International sought and was granted an interlocutory appeal pursuant to OCGA § 5-6-34 (b). However, International failed to timely file its notice of appeal in compliance with OCGA § 5-6-34 (b). Because International appealed from a non-final judgment and chose to “[put] the machinery of immediate appellate review . . . into motion, [it committed] a procedural default fatal to [its] appeal. . . .” Mitchell, supra at 114 (1). Accordingly, we conclude that International is foreclosed from resubmitting this matter for appellate review.

2. We now address the trial court’s action in vacating the original order denying summary judgment and reinstating the same order instanter. “Upon the remittitur from the appellate court being filed in the trial court, the issue is res judicata, and the lower court has no authority to allow the movant to amend [its] motion. Nor can it hear further evidence or consider any other matter that would otherwise affect the finality of the judgment of this court.” Shepherd v. Shepherd, 243 Ga. 253, 254 (253 SE2d 696) (1979). “Rulings of the appellate courts are binding in all subsequent proceedings in the trial or appellate courts. Moreover, the decision of the appellate court, and any direction awarded, shall be respected and in good faith carried into full effect by the court below.” (Citations and punctuation omitted.) Crowell v. City of Eastman, 187 Ga. App. 891, 892 (1) (371 SE2d 667) (1988).

In this instance, the trial court’s action was intended to provide International an opportunity to resubmit its application for interlocutory appeal. Clearly, this ruling circumvented our dismissal of the appeal. See Shepherd, supra. “The only action which [the trial court] had authority or power to take was to make the judgment of this court the judgment of the trial court. . . . [Cit.]” Id. at 254-255. Accordingly, the trial court erred in vacating its prior order and reinstating the order instanter. We conclude that our dismissal of the interlocutory appeal was binding on the trial court, and consequently, this appeal is dismissed.

Decided March 16, 1998.

Lane, O’Brien & Caswell, Stephen J. Caswell, Mark W. Thomas, for appellant.

Smith, Howard & Ajax, James T. Brieske, Falanga & Chalker, Robert A. Falanga, Crim & Bassler, Thomas S. Bechtel, for appellees.

Appeal dismissed.

Birdsong, P. J., and Eldridge, J., concur.


author: Pope, Presiding Judge. BLACKBURN, Judge,

text:
    A97A1998.
    GANTT v. BENNETT et al. PROPES et al. v. BENNETT et al. BENNETT et al. v. FORSYTH COUNTY BOARD OF HEALTH.
    A97A1999.
    A97A2000.
    (499 SE2d 75)
   Pope, Presiding Judge.

This case is a combination of three appeals arising from the jury verdict rendered on Earnest and Ann Bennett’s claims against several defendants regarding their malfunctioning septic system. The jury returned a verdict in favor of the Bennetts against several of the defendants in the amount of $47,500 actual damages and $10,800 in attorney fees. The jury also imposed attorney fees against the Bennetts with respect to one defendant. For the reasons stated below, in Case Nos. A97A1998 and A97A1999 we affirm the judgments in favor of the Bennetts; and in Case No. A97A2000, we reverse the award of attorney fees against the Bennetts and affirm the remainder of the judgment.

Viewing the evidence in the light most favorable to the verdict, it was that Jake Gantt, who had an extensive background in residential construction and development, was the builder of the Bennetts’ house. Jake Gantt also developed the subdivision in which the house is located and built many of the other homes in the subdivision.

On February 11, 1987, the Forsyth County Department of Planning & Development issued the first permit for construction on the Bennetts’ house. On that same date, Jake’s son Joe obtained an individual sewage disposal system permit for the property. The Forsyth County Health Department issued a form which indicated that the individual sewage disposal system at the house was inspected on April 13, 1987. The Bennetts, who were the first buyers of the home, bought it on January 27, 1989 for $60,000.

Earnest Bennett went to the property three times before buying the house. During these inspections he had a conversation with Gantt in which he asked about the property and specifically asked about the septic system. At the closing on the house, the Bennetts obtained a certificate from the County Health Department stating that the septic system on the property “was examined and apparently operating properly on 1-25-89.”

Several months after they bought the house, the Bennetts noticed something leaking into their yard and smelled a foul odor around the house. They eventually determined that the problem was with the septic system and the Bennetts determined that it could not be repaired.

The instant case arose when the Forsyth County Health Department filed a complaint against the Bennetts seeking ah interlocutory injunction to stop them from operating the malfunctioning sewage system on their property. The Bennetts then filed a counterclaim against the Health Department and added as defendants Jake Gantt; Joe Gantt (Jake’s son who the Bennetts claimed had installed the septic tank and drain field at the property), and David Bealle, a registered land surveyor whom Jake Gantt hired to do the surveying and percolation test on the lot. The Bennetts later amended their counterclaim, adding claims against Terry Propes, the Forsyth County inspector who issued the permit on their septic system and falsely represented that he had inspected it. In addition to the original fraud claim, the Bennetts also asserted claims under the Georgia RICO Act.

Essentially, the Bennetts claimed that in building their home, Jake and Joe Gantt conspired with others to defraud them by installing the septic system in soils in which the system could not operate. The Bennetts contended that David Bealle conspired with Jake Gantt to falsify information on the preliminary plat for the property by showing successful percolation tests, when in fact such properties could not have passed percolation testing. They claimed that Jake Gantt conspired with Terry Propes to obtain a permit for the septic system without Propes completing the required visual inspection of the system. The Bennetts contended that the defendants were aware that the septic system was installed in ground water; that the defendants knew that the system would not operate properly; and that their home was uninhabitable due to the malfunctioning septic system.

Before trial, the Bennetts agreed to the permanent injunction which the Board of Health had sought three years earlier. After a lengthy trial, the jury returned a verdict in favor of Earnest and Ann Bennett and against defendants Forsyth County Board of Health, Jake Gantt, and Terry Propes, jointly and severally, the damages outlined above. Nonetheless, the jury found no RICO violations and determined that the Bennetts were not entitled to punitive damages. The jury also returned a verdict in favor of Joe Gantt and David Bealle, finding that they were not liable to plaintiffs. Upon motion by Bealle, the trial court assessed attorney fees pursuant to OCGA § 9-15-14 against the plaintiffs. These appeals followed.

Case No. A97A1998

In Case No. A97A1998, Jake Gantt raises five enumerations of error. As stated above, for the following reasons, we affirm.

1. Gantt contends the trial court erred in denying his motions for directed verdict and for a new trial on the Bennetts’ fraud claim. Gantt argues that there was no evidence that he made any misrepresentations of material fact to the Bennetts, nor that he concealed any material fact from them.

We disagree and affirm the trial court’s denial of the motions. “Where a jury returns a verdict and it has the approval of the trial judge, the same must be affirmed on appeal if there is any evidence to support it as the jurors are the sole and exclusive judges of the weight and credit given the evidence. The appellate court must construe the evidence with every inference and presumption in favor of upholding the verdict, and after judgment, the evidence must be construed to uphold the verdict even where the evidence is in conflict. As long as there is some evidence to support the verdict, the denial of defendant’s motion for directed verdict, new trial and j.n.o.v. will not be disturbed.” (Punctuation omitted.) Southeastern Security Ins. Co. v. Hotle, 222 Ga. App. 161, 162 (1) (473 SE2d 256) (1996).

“The tort of fraud has five elements: (1) a false representation by defendant; (2) scienter; (3) an intention to induce the plaintiff to act or refrain from action; (4) justifiable reliance by the plaintiff; and (5) damages. [Cit.]” Wiederhold v. Smith, 203 Ga. App. 877, 878 (1) (418 SE2d 141) (1992). OCGA § 23-2-57 provides: “[flraud may not be presumed but, being in itself subtle, slight circumstances may be sufficient to carry conviction of its existence.”

Moreover, “in cases of passive concealment by the seller of defective realty, we find there to be an exception to the rule of caveat emptor. That exception places upon the seller a duty to disclose in situations where he or she has special knowledge not apparent to the buyer and is aware that the buyer is acting under a misapprehension as to facts which would be important to the buyer and would probably affect its decision. Wilhite v. Mays, 140 Ga. App. 816, 818 (232 SE2d 141) (1976); Hall v. Richardson Homes, 168 Ga. App. 593, 595 (309 SE2d 825) (1983).” (Punctuation omitted.) Cohen v. Stuhler, 180 Ga. App. 543, 544 (349 SE2d 541) (1986).

“It is well-established that questions of fraud, the truth and materiality of representations made by a defendant, and whether the plaintiff could have protected himself by the exercise of proper diligence are, except in plain and indisputable cases, questions for the jury.” (Citations and punctuation omitted.) Wiederhold v. Smith, 203 Ga. App. at 878. In this case, there was evidence that Jake Gantt concealed that the septic system was defective, in a manner so as to deceive and mislead. There was evidence that Jake Gantt was aware that the system had been installed in ground water and in improper soils which would cause it to fail. Gantt admitted that he was present at the site throughout the construction, including when the workers dug the septic system. One of the construction workers testified that the house was built in a low area and that because of this, Jake Gantt had to bring fill dirt to the lot for a couple of days.

Further, after the system failed, it was discovered that a french drain system had been installed around the lines and that the french drain system was wrapped in cloth. Larry Walker, a former employee of the Forsyth County Health Department and an expert in sewage disposal systems, testified that the existence of the french drain wrapped in cloth showed that the person who installed the french drain knew of the high water problem at the time the system was installed. Although Gantt testified that there was no ground water where the tank was placed, there was testimony that ground water was found in the lines each of the numerous times that tests of the field lines were subsequently performed.

Various soil tests performed on the property demonstrated that the soil was inappropriate for the system and, according to one expert, the soil was “the kiss of death” for any septic system. This witness also testified that when the septic tank was excavated he saw quantities of vegetation — or “nature’s fill” — in the vicinity of the tank. Clearly, there was evidence from which the jury could conclude that Gantt knew that the system was installed in inappropriate soil and that he misrepresented or concealed this fact from the Bennetts.

2. Gantt contends that the trial court erred in denying his motions for directed verdict and new trial on the claims of attorney fees. He argues that there was insufficient evidence of bad faith and litigiousness to support the award and that there was insufficient evidence regarding the method by which to calculate the amount of the award.

We disagree and conclude that there was evidence from which a jury could impose these fees. In light of the testimony from the attorney at trial and the terms of the written contingency fee agreement, we also find that the evidence regarding the reasonableness and the amount of the fees was sufficient. See generally Walther v. Multicraft Constr. Co., 205 Ga. App. 815, 816 (3) (423 SE2d 725) (1992).

3. Gantt argues that evidence which accidentally went out with the jury warranted a mistrial. The evidence to which Gantt objected were documents regarding witness Allmon’s criminal record. Alimón had been called as a witness by defendant Bealle to establish that Bealle had performed certain percolation tests on the Bennetts’ lot.

Gantt has not demonstrated that this error harmed him and we find no reversible error. After discovering that the evidence had gone out with the jury, the court conducted a full voir dire of the jurors and established that none of them had considered the exhibits. In response to questioning from the court, all of the jurors responded that they could disregard whatever knowledge they had derived from the exhibits in arriving at the verdict. Moreover, the jury returned a verdict in favor of Bealle on the claims regarding which Alimón had testified. “An appellant must show harm as well as error to prevail on appeal; error to be reversible must be harmful.” (Punctuation omitted.) City of College Park v. Pichón, 217 Ga. App. 53, 54 (1) (456 SE2d 686) (1995).

4. We have reviewed Gantt’s additional enumerations of error and find them meritless.

Case No. A97A1999

In Case No. A97A1999, Terry Propes and the Forsyth County Board of Health appeal the jury’s verdict against them, raising seven enumerations of error. Again, we affirm.

5. In three separate enumerations, Propes and the Board of Health argue that the court erred in denying their motion for a directed verdict on the fraud count when: there was no evidence from which the jury could find that Propes knowingly made a false statement; there was no evidence regarding the Bennetts’ reasonable reliance; and there was no other basis for liability against either Propes or the Board of Health. Contrary to these contentions, there was sufficient evidence of fraud to send the case to the jury.

Viewing the evidence in the light most favorable to the verdict, Propes, the county inspector, failed to comply with county regulations and failed to complete an on-site inspection of the septic system before it was covered up with dirt. The “On-Site Sewage Management System Handbook,” which contained the regulations adopted by Forsyth County, required inspections on all systems. The regulations stated: “[n]o person may cover or use an on-site sewage management system until final inspection is made by the County Board of Health to determine compliance of the provisions of the construction permit issued under [another regulation] and written approval has been issued by the County Board of Health.” Despite this requirement, Propes admitted that he issued the permit for the Bennetts’ property without performing a visual inspection. He stated that he issued the permit and inspection report based on the contractor’s drawing.

Despite the fact that he had not performed the required inspection, Propes signed as “inspector” the inspection report for the permit on the plaintiffs’ septic system. Propes circled the word “Approved” next to the indication for the sewage disposal system and also drew a line to a written notation which stated “contractors’ drawing.” Propes filled in the inspection date and also filled in details regarding the system, including information regarding the system’s capacities, the width of the trench, and the length of the field lines. Propes admitted at trial that after the document was issued, Gantt was not required to have any more inspections done on the property regarding the septic system. The evidence showed that in addition to the false inspection report on the Bennetts’ home contrary to both the terms of the applicable regulations and the form itself, Propes and other officials completed false reports on a number of other houses in the subdivision.

There was conflicting testimony as to whether approving septic systems based on the contractors’ drawings was an approved practice for the Board of Health inspectors. Although Propes and others testified that this procedure was the unofficial policy of the office, there was also testimony from Propes’ supervisor that Propes was reprimanded for “falsification of documents” for the events which underlie this case. The trial court’s denial of the motions was proper; Propes’ argument that writing the words “contractors’ drawing” on the document alters this result is without merit.

Similarly, Propes’ arguments that there was no evidence regarding reasonable reliance are without merit. First, given the evidence of a conspiracy between Gantt and Propes, there was a factual issue regarding reliance. See R.R.R. Limited Partnership v. Investguard, Ltd., 219 Ga. App. 34 (463 SE2d 735) (1995). Moreover, there was evidence that Mrs. Bennett got a letter from Mike Brown of the Health Department at the closing on the house, which stated that the septic system “was examined and apparently operating properly on 1-25-89.” The denial of the motion for directed verdict was proper. Because of the factual issues regarding Propes, the Forsyth County Board of Health was also liable.

6. Propes and the Forsyth County Board of Health contend that the statute of limitation expired prior to the Bennetts adding Propes as a party. The Bennetts claim that the four-year statute of limitation was tolled under OCGA § 9-3-96 until the discovery of the fraud, due to defendants’ fraudulent concealment of the defect, and that therefore the statute of limitation did not bar the claim. We agree. See generally Fleming v. Lee Engineering &c. Co., 184 Ga. App. 275, 276 (361 SE2d 258) (1987); compare Moore v. Meeks, 225 Ga. App. 287 (2) (483 SE2d 383) (1997).

There was evidence that in February 1990, the Bennetts had their yard excavated and discovered that the pipes were wrapped in cloth. Upon this discovery, they contacted the Health Department and on February 22, 1990, a Health Department environmental technician wrote the Bennetts, enclosing a copy of the falsified permit which Propes had signed. On February 28,1990, the technician again wrote the Bennetts, stating that — contrary to all previous indications — the sewage system had not been inspected by the Health Department. The amendment to the Bennetts’ complaint which added Propes as a defendant was filed within four years of the date of the later letter.

“Fraud claims are governed by a four-year statute of limitation, but this limitation period may be tolled if appellant committed an act of actual fraud that had the effect of concealing from the plaintiff the existence of the cause of action despite its exercise of reasonable diligence. Actual fraud involves moral turpitude, and requires an intentional deception by false representation or by concealment of a fact. When actual fraud is the gravamen of the underlying action, no independent fraud is required for tolling of the statute of limitation, and the limitation period is tolled until the plaintiff discovers or in the exercise of reasonable diligence should have discovered the fraud.” (Citations and punctuation omitted.) Ramey v. Leisure, Ltd., 205 Ga. App. 128, 129 (1) (421 SE2d 555) (1992). “Thus, when the statute of limitation began to run was an issue for the jury. [Cit.]” (Citations and punctuation omitted.) Hall v. Richardson Homes, 168-Ga. App. at 597. .

Propes and the Board of Health also claim that the court gave a misleading charge to the jury by misstating the date on which the complaint against Propes was filed. Their argument is without merit for two reasons: first, the arguments misrepresent the mistake the court made; secondly, for the reasons above, any such mistake was harmless.

7. Propes and the Board of Health argue that the court erred in denying their motion for mistrial after discovering that the jury took out documents which were not evidence. As discussed in Division 3 above, this argument is without merit.

8. Propes and the Board argue that the award of attorney fees was improper. As stated in Division 2, we disagree. See generally Ross v. Hagler, 209 Ga. App. 201, 204 (3) (433 SE2d 124) (1993).

Case No. A97A2000

In Case No. A97A2000, the Bennetts and their attorney appeal on various matters, including the trial court’s order assessing sanctions pursuant to OCGA § 9-15-14 regarding their RICO claims against defendant David Bealle. We agree and reverse on this basis; the remainder of the judgment we affirm.

9. Initially, the Bennetts and their attorney contend that the trial court erred in assessing sanctions against them pursuant to OCGA § 9-15-14 after the trial court had previously denied defendant Bealle’s motions for summary judgment and directed verdict.

“Pursuant to OCGA § 9-15-14 (b), a trial court may assess attorney fees if it finds (1) that an attorney or party brought or defended an action that lacked substantial justification or (2) that the action was interposed for delay or harassment or (3) that an attorney or party unnecessarily expanded the proceedings by other improper conduct. An award under OCGA § 9-15-14 (b) is discretionary and the standard of review is abuse of discretion.” (Punctuation omitted.) McKeen v. McKeen, 224 Ga. App. 410 (1) (481 SE2d 236) (1997).

In the present case, Bealle sought attorney fees and expenses resulting from his defense of the Bennetts’ RICO claim against him. In the RICO claim, the Bennetts alleged that Bealle was engaged in a criminally corrupt activity by the falsification of a preliminary survey which was submitted to the Health Department. The trial court denied Bealle’s motions for summary judgment and directed verdict on this issue; however, the jury returned a verdict in favor of Bealle on both the Bennetts’ RICO and fraud claim. Thereafter, the trial court granted Bealle’s motion for sanctions pursuant to OCGA § 9-15-14.

In Porter v. Felker, 261 Ga. 421, 422 (405 SE2d 31) (1991), the Supreme Court of Georgia determined that a trial court’s failure to grant summary judgment to a party will not, as a matter of law, preclude a later finding that attorney fees are authorized pursuant to additional facts which were not foreseen at the summary judgment stage. Because the trial court also denied Bealle’s motion for directed verdict after the close of the evidence, the Bennetts argue that the Porter analysis should apply and preclude the trial court from awarding attorney fees. We agree.

Although Porter only dealt with the award of attorney fees after the denial of a motion for summary judgment, the court’s analysis applies at least as strongly to the present situation. In Porter, the court held that “a trial court’s award to a party whose motion for summary judgment was denied must be vacated except in unusual cases where the trial judge could not, at the summary judgment stage, foresee facts authorizing the grant of attorney fees.” Id. at 422 (3). In the present case, the trial court heard all of the facts which had been presented to the jury before denying the defendants’ motions for directed verdict on the RICO claim. Therefore, this case is not such an “unusual case” that allows the trial court to award attorney fees after denial of the party’s motion for directed verdict. See id.; see also Hamm v. Willis, 201 Ga. App. 723, 727 (6) (411 SE2d 771) (1991). Accordingly, we must reverse the trial court’s award of attorney fees to defendant Bealle.

10. The Bennetts contend that the trial court erred in failing to allow them to introduce an evaluation of Propes which contained the notation “falsification of documentation.” However, we find that any error in not allowing the document was harmless in that it would have been cumulative of other testimony. Specifically, Propes’ supervisor was allowed to testify that a notation regarding “falsification of documentation” was contained on Propes’ evaluation. His supervisor also indicated that the notation referred to the facts surrounding the case at trial. “[A]n appellant must show harm as well as error to prevail on appeal.” (Punctuation omitted.). Great Western Bank v. Davis, 203 Ga. App. 473, 475 (3) (416 SE2d 899) (1992) (no reversible error where contents of document put into evidence through testimony but document not allowed). We find no harmful error.

11. The Bennetts contend that the trial court erred in allowing the defendants to produce evidence that they had previously dismissed their case against some of the defendants and then later filed this action. The Bennetts argue that our decision in Turner v. W. E. Pruett Co., 202 Ga. App. 287 (2) (414 SE2d 248) (1991), requires reversal of the underlying judgment. In Turner, we held that the trial court committed reversible error in allowing defendant’s counsel to introduce irrelevant evidence regarding the plaintiff’s failure to initiate the lawsuit until just prior to the expiration of the statute of limitation. Id.

However, in the present case, the trial court ruled that evidence of the previous dismissal had some relevance. It ruled that “to the extent that [the Bennetts] may be claiming damages as a result of the time that [they] have suffered at the hands of the Defendants, and that that might be impacted in some way by the dismissal of this lawsuit, I’m going to let them put it in.” In Nottingham Co. v. Resource Materials Corp., 210 Ga. App. 128, 131 (2) (435 SE2d 447) (1993), the trial court determined that evidence that the plaintiff had filed its lawsuit shortly before the expiration of the applicable statute of limitation was relevant to some of the defendant’s defenses and allowed it to be introduced. On appeal, we distinguished Turner and found no error in the trial court’s admission of the testimony. Nottingham, 210 Ga. App. at 131. “Evidence of doubtful relevancy or competency should be admitted and its weight left to the jurors. Where evidence is offered and objected to, if it is competent for any purpose, it is not erroneous to admit it.” (Punctuation omitted.) Id. In the present case, we find no error in the trial court’s admission of the testimony.

12. The Bennetts contend that the trial court erred when it released a witness from his subpoena over their objection. The Bennetts attempted to impeach Bealle’s witness, Michael Alimón, using documents other than the certified copy of his previous conviction for drug trafficking. The Bennetts did not want the court to release Alimón from his subpoena in order that they could recall him for impeachment when they received the proper proof. Again, as in Divisions 3 and 6 above which also involve the criminal record of this witness, we find no harmful error.

Judgment affirmed in Case Nos. A97A1998 and A97A1999. Judgment affirmed in part and reversed in part in Case No. A97A2000.

McMurray, P. J., Beasley, Johnson and Smith, JJ, concur. Andrews, C. J., and Blackburn, J., dissent.

BLACKBURN, Judge,

dissenting.

The trial court erred in denying defendants’ motions for directed verdict, therefore, I dissent from the judgments in Case Nos. A97A1998 and A97A1999 and the analysis contained in Divisions 1, 2, 4, 5, and 8.1 concur with the analysis in Divisions 3, 6, 7, and 9-12, and the judgment in Case No. A97A2000.

The Bennetts failed to present evidence that Jake Gantt had actual knowledge that the septic system was defective. “Fraud unlike negligence, breach of warranty or breach of contract, is premised upon the ‘actual moral guilt’ of the defrauding party. Mere concealment of a material fact, unless done in such a manner as to deceive and mislead, will not support an action. In all cases of deceit, knowledge of the falsehood constitutes an essential element. The element of intention to deceive is as necessary in an action based on concealment as one based on wilful misrepresentation. An action for fraud and deceit must be based upon a representation or concealment which was made with the intention and purpose of deceiving the opposite party, and for the purpose of injuring him.” (Citations and punctuation omitted.) Lively v. Garnick, 160 Ga. App. 591, 592 (287 SE2d 553) (1981).

In Case No. A97A1998, a careful review of the trial transcript did not reveal any evidence from which the jury could infer that Jake Gantt had actual knowledge that the septic system was defective as installed. Although the Bennetts cite to their expert testimony that Jake Gantt “should have known” the system would not work, such evidence is not enough to show actual knowledge, but merely constructive knowledge. “It is clear, however, that in a fraudulent concealment action the allegedly defrauded party must prove that the alleged defrauder had actual, not merely constructive, knowledge of the fact concealed. . . . An assertion that one ‘should have known’ of a defect alleges at most a constructive knowledge.” (Punctuation omitted.) Id. at 593-594.

The majority asserts that the fact that a french drain was installed around the septic system showed Gantt’s knowledge of a high water problem. However, no evidence was produced at trial indicating that Gantt knew that the installation of a french drain was not a proper way to handle any problem with high ground water. The testimony indicated that french drains were used to lower the water table. Although the majority points to other facts including ground water in the line and expert testimony regarding soil conditions, the plaintiffs failed to present any evidence that Gantt was aware of this information. Furthermore, we have previously held that “it is not a ‘reasonable or logical’ inference from the mere fact that a builder-seller has constructed a house subsequently discovered to be ‘defective’ that he knowingly concealed those defects and thereby deceived and defrauded the purchaser.” Id. at 594.

In the present case, the plaintiffs failed to present any evidence regarding the actual installation of the septic system. Although the evidence indicated that Bobby Gantt installed the Bennetts’ septic system, he did not testify at trial. The evidence in this case may have supported a cause of action in negligent construction, however, that is not the issue before us. Absent some evidence of Jake Gantt’s “ ‘moral guilt’ in effectuating the sale with actual knowledge of the [septic system’s] defects, a recovery and judgment predicated upon [Jake Gantt’s] fraud . . . cannot stand.” Id. at 594-595. The trial court erred in denying Jake Gantt’s motion for directed verdict.

In Case No. A97A1999, Terry Propes and Forsyth County Board of Health contend that the trial court erred in denying their directed verdict on the Bennetts’ fraud claim and claim for attorney fees.

The Bennetts contend that Propes and the Board of Health are liable in fraud because Propes, the county inspector, failed to comply with county regulations and did not complete an on-site inspection of the septic system before it was covered up with dirt. County regulations required that “[n]o person may cover or use an on-site sewage management system until final inspection is made by the. County Board of Health to determine compliance of the provisions of the construction permit issued under Section 290-5-26.033 and written approval has been issued by the County Board of Health.” Propes signed the inspection report for the permit on the plaintiffs’ septic system. Propes circled the word “Approved” next to the indication for the sewage disposal system and also drew a line to his written notation “contractor’s drawing.” Testimony by more than one inspector at trial indicated that around the time this permit was issued, if the inspectors were unable to do an on-site inspection due to time constraints, they would review the contractor’s drawing of the septic system and approve or reject the system based on such drawing. Although the evidence was in conflict as to whether this procedure was in fact approved by their supervisors, the evidence was not conflicting as to whether the inspectors themselves believed that the procedure was approved. Each inspector testified that the procedure was the unofficial policy of the office. Furthermore, evidence that the inspectors may have been later reprimanded for such procedures does not negate the inspector’s lack of knowledge of the impropriety of their actions at the time they were performed.

“The elements essential to an action in tort for damages resulting from a material misrepresentation constituting fraud are: (1) that the defendant made the representations; (2) that at the time he knew they were false (or what the law regards as the equivalent of knowledge); (3) that he made them with the intention and purpose of deceiving the plaintiff-, (4) that the plaintiff relied on such representations; (5) that the plaintiff sustained the alleged loss and damage as the proximate result of their having been made.” (Punctuation omitted; emphasis supplied.) Lister v. Scriver, 216 Ga. App. 741, 745 (456 SE2d 83) (1995). In the present case, the uncontroverted testimony at trial shows that Propes did not intend to mislead anyone when he approved the septic system pursuant to the contractor’s drawing. He noted on the face of the form that the approval was on the contractor’s drawing. As an intention to mislead is a necessary element of a cause of action in fraud, and the Bennetts failed to introduce any evidence that Propes intended to mislead them, I would find that the trial court erred in denying Propes’ motion for directed verdict on the Bennetts’ claim of fraud.

The Bennetts’ claims against the Board of Health are derivative of their claims against Propes. Therefore, the trial court should have also granted the Board of Health’s motion for directed verdict. See cf. Crow v. Evans, 183 Ga. App. 581, 582 (359 SE2d 446) (1987) (“respondeat superior prohibits a finding against the master when there has been a judgment on the merits in favor of the servant on whom the master’s liability was predicated”). Based upon such a finding, the trial court also erred in assessing attorney fees against Propes and the Board of Health.

Decided February 25, 1998

Reconsideration denied March 17, 1998

Richardson & Chenggis, George G. Chenggis, for Gantt.

Van Gerpen & Associates, Earl J. Van Gerpen, Terry L. Strawser, for Propes.

Dreger & McClelland, Richard J. Dreger, for Bennett et al.

Gary R Bunch, for Forsyth County Board of Health.

While the evidence presented in this case may support a claim for negligent construction, it does not support the Bennetts’ claims for fraud. I would find that the trial court erred in denying the defendants’ motions for directed verdict and in granting the Bennetts’ claims for attorney fees.

I am authorized to state that Chief Judge Andrews joins in this dissent.

       The Bennetts originally had filed a complaint based on these matters in 1991, but had dismissed that suit before this one was filed. See Division 11 below.

       After the Bennetts consented to the injunctive relief sought by the Forsyth County Board of Health, the parties were realigned to facilitate the trial by designating the Bennetts as plaintiffs and the remaining parties as defendants. This opinion refers to the Bennetts as plaintiffs.

       Both the attorney’s testimony and the fee agreement established that the Bennetts had agreed to pay a one-third contingency fee, minus $5,000.