text:
    A12A0007.
    MANDT v. LOVELL.
    (728 SE2d 772)
   Mikell, Presiding Judge.

Lynda Y. Mandt appeals from the trial court’s termination of a family violence permanent protective order (PPO) against William Roderick Lovell, the father of the parties’ minor child. Mandt asserts error, contending that (1) the trial court was barred by res judicata from considering Lovell’s motion to terminate the PPO; (2) the trial court lacked jurisdiction to terminate an unappealed final order entered in a previous term of court; and (3) the trial court should have dismissed Lovell’s case for failure to state a claim upon which relief could be granted. For the reasons that follow, we affirm.

We review legal error de novo. “When a question of law is at issue, as here, we owe no deference to the trial court’s ruling and apply the plain legal error standard of review.”

[F] actual findings made after a hearing shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses. The appellate courts will not disturb fact findings of a trial court if there is any evidence to sustain them.

The initial, temporary family violence protective order against Lovell was issued April 23, 2007. Mandt moved for a PPO. Both parties were represented by counsel. After a hearing, the trial court on November 18, 2008, granted Mandt’s motion and converted the temporary protective order to a permanent order and also issued a separate PPO. Lovell did not move for reconsideration, nor did he file an appeal. Two years later, on November 18, 2010, Lovell moved to terminate the PPO. This motion did not contain a case number, nor did it indicate whether it was a new case or part of the original action. At some point thereafter, the trial court opened a new case with a new number, and after a hearing on May 2, 2011, at which both parties were represented, the trial court on May 12,2011, granted the motion to terminate the PPO under the second case number as if this were new litigation.

Lovell alleged changed circumstances, including that a different court had granted him unsupervised visitation with the child, that neither he nor Mandt had custody of the minor child, and that the child’s paternal grandfather and step-grandmother had petitioned for custody in another court. At the hearing on his motion, Lovell testified that he sought removal of the PPO so that he could gain additional employment, as potential employers who ran criminal background checks on him would discover the PPO. He also sought to terminate the PPO because “it’s an embarrassment” socially and when he had to disclose its existence to a woman he was dating.

The trial court entered a written order terminating the PPO and ordering both parties to have no further contact with one another. Mandt filed this discretionary appeal, asserting three enumerations of error.

1. Mandt argues that the termination of the PPO was barred by res judicata. This enumeration is unavailing. If res judicata barred Lovell’s present action, then res judicata would prevent any later reconsideration of trial court orders governing continuing or recurrent courses of conduct, for example, permanent injunctions.

2. Mandt next argues that the trial court lacked jurisdiction to terminate a final, unappealed order entered in a prior term of court.

Although Mandt shows that, as a rule, a trial court lacks jurisdiction to make material changes in a final order after the expiration of the term of court in which it was entered, general principles with regard to the finality of judgments support the trial court’s power to modify or terminate a protective order. Unlike a judgment for damages, for example, which is designed to close a matter, “[¡Judgments that govern continuing or recurring courses of conduct may be subj ect to modification even though the power of doing so is not expressly provided.”

Nor would the principles of res judicata necessarily bar a subsequent change in the judgment:

If the judgment was one granting continuing relief, and a change of circumstances makes the judgment too burdensome or otherwise inapposite as a regulation of ongoing conduct, it is ordinarily possible for the party concerned to apply to the rendering court for a modification of the terms of the judgment.

Here, the protective order provides continuing relief to Mandt through regulation of Lovell’s conduct, and the trial court apparently found that the fact that the parties were no longer together and neither party had custody of the child negated the need for a protective order.

Decided June 7, 2012

Reconsideration denied July 27, 2012

Bradford W. Sperr, Vicky O. Kimbrell, for appellant.

William M. Hill, Lome H. Cragg, for appellee.

3. Mandt argues that the trial court erred by failing to dismiss the case below in that Lovell failed to state a claim upon which relief could be granted. Rather than filing a petition or complaint, Mandt argues, Lovell initiated a new case with a motion to terminate the protective order in a prior, separate action.

Lovell’s motion, however, states plainly his request for relief. It cannot be said beyond doubt that he can prove no set of facts in support of his claim that would entitle him to relief.

Under the circumstances of this case, none of the enumerations of error mandates reversal of the trial court’s order. Therefore, it is affirmed.

Judgment affirmed.

Miller and Blackwell, JJ., concur.

       (Citation and punctuation omitted.) Suarez v. Halbert, 246 Ga. App. 822, 824 (1) (543 SE2d 733) (2000).

       (Citation and punctuation omitted.) Harris v. Williams, 304 Ga. App. 390-391 (696 SE2d 131) (2010), overruled on other grounds, Viskup v. Viskup, 291 Ga. 103, 107 (3) (727 SE2d 97) (2012).

       The transcript of this hearing is not in the record before us.

        Long v. Long, 247 Ga. 624, 625 (278 SE2d 370) (1981) (“[A]n attempt to retain jurisdiction of a final order to the extent of allowing any party to file objections and thereby have the matter reconsidered by the court beyond the term in which the final order is entered is contrary to law and is a nullity.”) (citation omitted).

       Restatement of the Law, Second, Judgments, § 73, Comment b.

       The Restatement does indicate that a judgment providing for continuing relief is not deprived of finality for purposes of res judicata, notwithstanding the possibility of modification. Id. at § 13, Comment c.

       (Citation omitted.) Id.

       OCGA § 9-11-12 (b) (6).

       See Duke v. Buice, 249 Ga. App. 164, 165 (547 SE2d 561) (2001) (pleadings are judged by their function rather than the name given to them by a party, and substance rather than mere nomenclature controls).

        Baker v. A.G. Edwards & Sons, Inc., 199 Ga. App. 758 (406 SE2d 87) (1991).


source: Caselaw Access Project

author: Adams, Judge.

license: Public Domain

text:
    A12A0010.
    WILSON v. THE STATE.
    (730 SE2d 500)
   Adams, Judge.

Steven Wilson appeals from the trial court’s denial of his motion for new trial following his conviction on one count of “False Statement and Writing, Concealment of Facts” under OCGA § 16-10-20. We affirm for the reasons set forth below.

Viewed in the light most favorable to the verdict, the evidence shows that on or about April 23, 2007, Wilson entered into a contract with Craig and Jennifer Aaron to renovate their home, including adding a second story to the existing ranch-style structure. The contract price was based on Wilson’s estimate that the work would cost approximately $206,150. The false statement charge arises out of Wilson’s application for a building permit from Cobb County for the work he contracted to perform on the Aarons’ home. Wilson listed himself as the property owner on the application, instead of the Aarons, and he described the work to be done as “repairs (repair brick repair cornish [sic]) raise ceiling” and listed the estimated construction cost at $10,000 despite the fact that the parties’ contract reflects a cost in excess of $200,000. The building permit itself also lists Wilson as the owner of the property and contains a stamped notation of “repairs & reno, no expansion.” Wilson signed that document before a notary indicating that all the information was true to the best of his knowledge.

The State presented evidence indicating that by understating the cost and scope of the building project on the permit, Wilson avoided having to comply with a number of county requirements including the submission of architectural plans, the completion of a structural engineering analysis and a review and approval of a site plan for the property. Additionally, he avoided requirements for obtaining separate electrical and mechanical permits that require specialized inspections by the county.

As the project continued, the Aarons came to question the quality of Wilson’s work. And, indeed, the State presented evidence at trial that Wilson’s work was not performed to code and that the Aarons’ property was eventually condemned. Additionally, the costs exceeded Wilson’s $206,000 estimate, and the Aarons came to believe that Wilson was overcharging them. A comparison of their invoices with those of another Wilson customer led Craig Aaron to conclude that both sets of invoices were “exactly the same.” At that point, sometime in early 2008, the Aarons reported the matter to the police, leading to the charges in this case.

1. Wilson contends that the trial court erred in failing to grant him a new trial on the ground that he received ineffective assistance of counsel. He asserts that his trial attorney was deficient in failing (a) to present a defense based on agency in connection with the charge of false statement or writing; (b) to call a witness to testify regarding the customs and practices of builders in Cobb County in applying for building permits; and (c) to object to the expert opinion testimony of two of the State’s witnesses.

In considering the trial court’s ruling on Wilson’s claims of ineffective assistance of counsel, “we accept the trial court’s factual findings and credibility determinations unless clearly erroneous, but we independently apply the legal principles to the facts.” (Citation omitted.) Handley v. State, 289 Ga. 786, 787 (2) (716 SE2d 176) (2011). And

[t]he two-prong test for determining the validity of a claim of ineffective assistance of counsel provided in Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984), asks whether counsel’s performance was deficient and, if so, whether this deficiency prejudiced the defense; that is, whether there is a reasonable probability that the outcome of the proceedings would have been different, but for counsel’s deficiency.

(Citation and punctuation omitted.) Bruce v. State, 252 Ga. App. 494, 498 (2) (555 SE2d 819) (2001). “If an appellant fails to meet his burden of proving either prong of the Strickland test, the reviewing court does not have to examine the other prong.” (Citations omitted.) Kendrick v. State, 290 Ga. 873, 877 (4) (725 SE2d 296) (2012). Moreover, a strong presumption exists “that the performance of trial counsel falls within the wide range of reasonable professional assistance. The reasonableness of the conduct is viewed at the time of trial and under the circumstances of the case.” (Citation and punctuation omitted.) Williams v. State, 277 Ga. 853, 857 (6) (596 SE2d 597) (2004).

(a) Wilson first asserts that his trial attorney was deficient in failing to raise an agency defense to the false statement charge, which alleged that Wilson

falsely, in the application [for the building permit], listed himself as the owner of the residence and falsely listed that the work was primarily for repairs of a value of $10,000.00, when in reality the work included additions and was valued at approximately $200,000.00, causing the price of the permit to be lower than it should have been and causing lack of supervision or oversight, contrary to the laws of this State—

Wilson notes, however, that although he listed himself on the first page of the application as the property owner, he actually signed the application on the lines for “Signature of property owner or owner representative,” and “Signature of applicant or applicant representative.” He testified at the hearing on his motion for new trial that he listed himself as owner on the permit only because he was acting as the Aarons’ representative in obtaining the permit, and he signed the application only in that representative capacity, although he conceded that he did not give this explanation at trial. Wilson’s trial attorney testified at the motion hearing that he failed to pick up the language on the signature lines allowing for a signature by an “owner representative,” but if he had he would have requested jury instructions on the law of agency because the issue would have been “a significant thing to argue before the jury.” He said that he would have argued that “when Mr. Wilson signed this document he signed it as a representative of Mr. Aaron, and an agent of Mr. Aaron.” The trial attorney stated that this omission was the most significant error he made at trial, and if he had it to do over again, agency would have been the center of his defense to the false statement charge.

But the trial attorney offered no explanation as to why or how the law of agency would have provided such a “significant” defense to the false statement charge. And Wilson’s current counsel failed to articulate below, and makes no attempt to articulate on appeal, how the law of agency would have provided Wilson a defense to that charge. Even though Wilson may have been acting as the Aarons’ agent in obtaining the permit and thus lawfully could have signed the permit as their representative, he, in fact, did not indicate on the form that he was signing in that capacity. Rather he identified himself as the owner of the property and signed the application in his individual capacity on the line where either the owner or the owner’s representative was to sign, thus arguably reinforcing the appearance that he was the owner. Moreover, Wilson’s status as agent provides no defense to misrepresentations he made regarding the scope and cost of the work to be performed. Accordingly, Wilson failed to establish a reasonable probability that the outcome of his trial would have been different if his trial attorney had raised such a defense.

(b) Wilson next contends that his trial counsel was ineffective in failing to call Ron Roberts as a witness, even though Roberts was on his witness list.

Roberts testified at the motion hearing that he had known Wilson for approximately 20 years and thought Wilson’s work was “straight up, straight arrow.” He stated that Wilson was an engineer who knew how to get things done and that he trusted Wilson “implicitly.” Roberts also testified that he sometimes signed his name as the owner on permit applications especially when property is owned by people out of state, and at times he would obtain an initial permit without a full set of plans just to get a project started.

Wilson’s trial attorney testified that he made a decision not to call Roberts although he offered no explanation for that decision. He stated in hindsight, however, that after hearing Roberts testify at the motion hearing, he believed that Roberts’ testimony would have only strengthened Wilson’s testimony regarding the custom and practice in the industry.

But “[t]he decision on which defense witnesses will be called is a matter of trial strategy and tactics and does not usually constitute ineffective assistance of counsel.” Crawford v. State, 302 Ga. App. 782, 784 (2) (691 SE2d 660) (2010). “Trial tactics and strategy, no matter how mistaken in hindsight, are almost never adequate grounds for finding trial counsel ineffective unless they are so patently unreasonable that no competent attorney would have chosen them.” (Citation and punctuation omitted.) Gray v. State, 291 Ga. App. 573, 579 (2) (662 SE2d 339) (2008). We cannot say that trial counsel’s decision not to call Roberts was patently unreasonable.

In fact, Roberts admitted at the motion hearing that where a building project such as the Aarons’ involved significant expansion to the space, he would have gotten a second permit and would have submitted a structural engineering report and an architectural report so that the county could have conducted the proper inspections. Because Wilson took none of those steps in connection with the Aarons’ project, Roberts’ testimony may actually have had a negative impact on Wilson’s defense. Accordingly, Wilson has failed to establish that he was prejudiced by his trial counsel’s failure to call Roberts as a witness.

(c) Wilson also contends that his trial counsel was ineffective in failing to object to the testimony of two prosecution witnesses: James Legg and Edwin McKenzie.

(i) James Legg is a certified real estate and tax appraiser who was hired by Cobb County to conduct an inspection and appraisal of the work done on the Aarons’ property. Legg had worked as an appraiser for 41 years and testified that Cobb County had previously hired him on approximately 25 occasions to conduct similar appraisals. The State tendered Legg as an expert witness in the appraisal, structural evaluation and workmanship of residential real estate. Wilson’s attorney conducted voir dire on Legg’s qualifications, and during that voir dire, Legg also testified that he worked as a builder for approximately nine years from 1981 to the early 1990s and built approximately twenty homes over that time. Following voir dire and further questioning by the trial court, Legg was admitted as an expert in the proffered areas without objection.

Wilson does not contend that Legg was not qualified as an expert in these areas; rather, he asserts that his trial attorney should have objected to Legg’s testimony regarding the process of obtaining building permits because Legg had not been a builder since 1990. But Legg’s testimony regarding building permits was not opinion testimony; it was factual testimony about how structural engineering reports and architectural plans figure into the permitting process and about the inspections required in connection with a building permit obtained with such documents. Wilson has not demonstrated that Legg rendered any opinion regarding the building permit in this case. That Legg’s knowledge of building permits may have been outdated or limited would have been a proper subject for cross-examination, but it would not provide a basis for excluding such testimony, especially in light of Legg’s 41 years of experience in real estate and his qualification as an expert in structural evaluation and workmanship. Accordingly, Wilson cannot establish that his attorney was deficient for failing to object to such testimony. “Failure to make a meritless or futile objection or motion cannot be evidence of ineffective assistance.” (Citation, punctuation and footnote omitted.) Hall v. State, 292 Ga. App. 544, 553 (6) (a) (664 SE2d 882) (2008).

(ii) Edwin McKenzie had 25 years of experience as a general residential contractor and testified that he had worked in many trades, learning “any facet of the construction area that [he] could,” but he had recently left the field for health reasons. McKenzie helped the Aarons locate the property at issue in this case and acted as their real estate agent in purchasing it. He drew the sketches of the proposed work on the property that were attached to the Aarons’ contract with Wilson and upon which Wilson based his estimate. He offered testimony regarding the building permit in this case and the requirements for obtaining a building permit for the scope of the work actually performed on the Aaron’s property.

Wilson contends that McKenzie’s evidence was expert testimony and that his trial counsel was ineffective in failing to object to the State’s failure to qualify McKenzie as an expert.

An expert witness is anyone who, through training, education, skill, or experience, has particular knowledge that the average juror would not possess concerning questions of science, skill, trade, or the like. An expert witness may render an opinion within his area of expertise after the proper qualifications have been proven to the trial court.

(Footnotes omitted.) Fielding v. State, 278 Ga. 309, 311 (3) (602 SE2d 597) (2004). And where a witness’s qualifications are established, he does not have to be formally tendered and accepted as an expert in order to give expert opinion testimony:

If, after qualifying a witness as an expert but without a formal tender, counsel proceeds to ask for expert opinion evidence, the trial court has tacitly or impliedly accepted the witness as an expert. Further, if the opposite party objects to the expert opinion and the trial court overrules the obj ection, then the court has impliedly accepted the witness as an expert.

(Footnotes omitted.) Id.

McKenzie testified as to his own credentials: he had 25 years in the residential construction business and had tried to educate himself in all aspects of home construction. See Fielding, 278 Ga. at 311 (3), n. 12 (citing Watkins v. State, 259 Ga. 648 (386 SE2d 132) (1989) for the proposition that “generally, nothing more is required to qualify as an expert than evidence that the person has been educated in a particular trade, science, or profession”). McKenzie also had prepared the plans for the Aarons’ home renovation, given his own estimate for the project, and inspected Wilson’s work; thus, he had particular knowledge of the property and the proposed work in this case.

Wilson has failed to establish that McKenzie’s credentials as an expert in residential construction would not have withstood voir dire. For example, he has not demonstrated that McKenzie did not have sufficient experience in obtaining building permits, in Cobb County or elsewhere, to qualify as an expert in that area. Moreover, to the extent the trial court allowed the State to question McKenzie as an expert, it appears that the court either tacitly or impliedly accepted him as an expert in the area. Fielding, 278 Ga. at 311 (3). Thus, because Wilson has failed to establish that his trial attorney could have raised a valid objection to McKenzie’s qualifications as an expert, he cannot show that his counsel was ineffective in failing to object. Id.

2. Wilson next argues that the trial court erred in ordering restitution in the amount of $350,000 for a violation of OCGA § 16-10-20.

After the jury announced the verdict, the trial court allowed Wilson and his attorney to confer as to whether they wished to proceed to sentencing that day or wait for pre-sentence investigation. Wilson chose to proceed with sentencing, and the State presented testimony from Craig Aaron regarding the financial losses he had suffered due to the problems with his house and the resulting condemnation and foreclosure. Wilson presented no evidence. During the ensuing argument, the State asked for restitution to the Aarons in the amount of $750,000, arguing that if Wilson had not falsified the building permit, he would have been required to submit a structural engineering report, which along with the county’s inspections, would have prevented the damage to the house. Wilson’s counsel did not object to a consideration of restitution at that time, nor did he ask for the opportunity to present evidence on the issue. He did argue, however, that restitution was not appropriate because Wilson was convicted only of making false statements but was acquitted of other theft and RICO charges. He argued that at most, the sentence should include up to the maximum $1,000 fine under OCGA § 16-10-20, but not restitution.

After hearing argument and evidence, the trial court fined Wilson $1,000 and sentenced him to the maximum sentence of five years, with two to serve and the balance on probation. The trial court stated that, applying the factors under OCGA § 17-14-10, it was ordering Wilson to pay the Aarons restitution in the amount of $350,000, representing the $100,000 down payment the Aarons placed on the house, and the $250,000 they paid Wilson to work on it. The trial court stated that considering “everything that flowed” from Wilson’s false statements on the permit application, “it is hard to imagine a case where a false statement is more significant,” and he could not imagine more damage to someone’s home than existed at the Aarons’ house. In response, Wilson’s attorney stated that he was not expecting a sentence other than a fine, and he moved the court to sentence Wilson as a First Offender, which the trial court denied.

Wilson contends on appeal that the trial court erred in ordering restitution because: (a) restitution is not available under OCGA § 16-10-20; (b) even if restitution were available, the trial court erred in making the award without a hearing and advance notice; and (c) even if restitution were available, the trial court applied an incorrect measure of damages.

On appeal this Court reviews the record “to determine whether each party has met his or her specified burden and whether a restitution award was supported by the preponderance of the evidence.” (Citation and punctuation omitted.) In the Interest of E. W., 290 Ga. App. 95, 96 (2) (658 SE2d 854) (2008). And pursuant to the restitution statute, with certain exceptions not applicable in this case, “a victim of property damage is entitled to all special damages which a victim could recover against an offender in a civil action based on the same act or acts for which the offender is sentenced.” Mayfield v. State, 307 Ga. App. 630, 631 (2) (b) (705 SE2d 717) (2011). See also OCGA § 17-14-2 (2) (defining “damages” for purpose of restitution statute).

(a) Wilson first contends that the trial court erred in ordering restitution to the Aarons based upon his conviction under OCGA § 16-10-20. He notes that the Eleventh Circuit Court of Appeals has determined that “the false statement statute was enacted ... for the protection of the state itself — not private parties,” and thus that no private cause of action arose from the statute. Pelletier v. Zweifel, 921 F2d l465, 1512, n. 83 (11th Cir. 1991). Although he contends that this prevents an award of restitution in favor of the Aarons, this argument ignores the law of restitution in this State, which defines a victim as anyone who suffers damages caused by the defendant’s unlawful act:

Under OCGA § 17-14-2 (9), for purposes of restitution a “victim” is defined as any “[n]atural person or... [a]ny firm, partnership, association, public or private corporation, or governmental entity suffering damages caused by an offender’s unlawful act. . . .” This definition of “victim” demonstrates that the purpose of restitution is not only to make the victim whole, but also to prevent the offender from shifting the costs of his conduct to third parties. Accordingly, a court may order an offender to make restitution to any third party who has incurred or will incur expenses as a result of his illegal acts.

(Citations omitted.) Adams v. State, 291 Ga. App. 681, 684 (3) (662 SE2d 782) (2008), disapproved on other grounds, Turner v. State, 312 Ga. App. 799, 804 (2), n. 15 (720 SE2d 264) (2011).

Craig Aaron’s testimony demonstrated that his wife and he suffered damages due to the lack of oversight of Wilson’s work. The evidence at trial directly linked this lack of oversight to Wilson’s misrepresentations on the building permit application and demonstrated that if he had submitted an application that accurately reflected the extent of the work to be performed, more safeguards would have been in place, which would have prevented the extent of the damage. Indeed, the prohibition against false statements in matters of government jurisdiction under OCGA § 16-10-20 can only have been intended to prevent damage such as that suffered by the Aarons. Accordingly, the trial court could properly order that restitution be made directly to the Aarons even if they technically were not the direct victims of the crime. See, e.g., Adams, 291 Ga. App. at 684 (3) (approving restitution award to charitable institution that covered expenses of victim of cruelty to persons over the age of 65 under OCGA § 16-5-100); Jackson v. State, 198 Ga. App. 261, 263 (5) (401 SE2d 289) (1990) (approving award of restitution against defendant convicted of vehicular homicide in favor of driver of other car involved in collision, who was injured as a direct result of the collision, even though driver was not direct victim of the crime). Cf. Smith v. State, 148 Ga. App. 634, 635 (10) (252 SE2d 62) (1979) (affirming award against defendant convicted of false swearing under OCGA § 16-10-71 for misrepresenting in closing affidavit that all construction suppliers had been paid; court ordered payment of restitution to ensure that existing liens on property were removed and material-men were paid in full).

(b) Wilson next asserts that the trial court erred in failing to give him advance notice and to hold a separate restitution hearing.

Where, as here, the parties do not agree in advance to the amount of restitution, the trial court sets a date for a hearing to determine restitution. OCGA § 17-14-7. The trial court gave Wilson and his attorney a choice of when they wanted to hold the sentencing hearing in this case, and they opted to proceed the same day as the jury announced its verdict. Although Wilson’s trial attorney indicated that he was not expecting an award of restitution, he did not object to that award; he did not present or request to present evidence on the issue of restitution at the time; nor did he request a separate hearing on the issue of restitution. Accordingly, we find that Wilson “has waived any error in the decision of the trial court to decide the question of restitution as a part of the sentencing hearing, rather than in a separate and distinct hearing.” (Citation omitted.) Futch v. State, 314 Ga. App. 294, 298 (3) (a) (723 SE2d 714) (2012). See also Ezebuiro v. State, 308 Ga. App. 282, 285 (2) (a) (707 SE2d 182) (2011).

(c) Wilson also argues that the trial court applied an incorrect measure of damages in crafting the restitution award in this case.

“ ‘Damages’ means all special damages which a victim could recover against an offender in a civil action____’’OCGA § 17-14-2.The State bears the burden of demonstrating “the amount of the loss sustained by a victim as a result of the offense,” OCGA § 17-14-7 (b), and the amount of restitution ordered by the trial court “may be equal to or less than, but not more than, the victim’s damages.” (Citation and punctuation omitted.) In the Interest of E. W., 290 Ga. App. at 97 (3). The offender has the burden of demonstrating his financial resources and the financial needs of his dependents. OCGA § 17-14-7 (b). The trial court resolves any disputes as to the amount or type of restitution and determines restitution by a preponderance of the evidence based upon a number of statutory factors. Id. See also OCGA § 17-14-10.

Decided July 12, 2012

Reconsideration denied July 27, 2012

David D. Marshall, for appellant.

Patrick H. Head, District Attorney, Anna G. Cross, Assistant District Attorney, for appellee.

Here, the Aarons essentially suffered the entire loss of use of their home, and the trial court determined that these damages flowed from Wilson’s false statement which allowed Wilson to skip the requirements for structural engineering and architectural reports on the project and to avoid county inspections, which would have avoided or detected problems as they arose. Considering the testimony from the trial and from the sentencing hearing, we conclude that the trial court’s award of $350,000 was supported by a preponderance of the evidence.

Judgment affirmed.

Barnes, P. J., concurs. McFadden, J., concurs fully in Division 1(b) and (c) and Division 2 but concurs in judgment only as to Division 1 (a).

       See Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). Wilson does not contest the sufficiency of the evidence to support the verdict.

       In addition to the false statement charge, Wilson was charged with seven counts of theft by deception and one count of violating the Georgia Racketeer Influenced and Corrupt Organizations Act, but the jury acquitted him of each of those charges.

       We note that during the sentencing hearing, the trial court told Wilson that his trial attorney did an “exceptional job” representing him and in getting him acquitted of the other eight counts.

         We note, however, that unlike a charge of false statement under OCGA § 16-10-20, Georgia recognizes a private cause of action under OCGA § 51-1-6 for a claim of injury due to “false swearing.” Peters v. Imperial Cabinet Co., 189 Ga. App. 337, 338 (1) (375 SE2d 635) (1988).


author: McFadden, Judge.

text:
    A12A0045.
    McINTIRE et al. v. PERKINS.
    (729 SE2d 529)
   McFadden, Judge.

Michelle and Timothy Mclntire sued Misty Perkins for damages arising from the total loss of their vehicle after a collision. Among other things, the Mclntires sought to recover damages “related to their contract with Honda Financial Services regarding the original loan to finance [their] wrecked vehicle in the amount of $9,294.90.” The trial court granted partial summary judgment to Perkins as to that claim. The Mclntires appeal, challenging the trial court’s summary judgment ruling. But because the Mclntires had already been compensated for the fair market value of their vehicle and they are not entitled to damages in excess of that value, we affirm the trial court’s ruling.

Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. Hutto v. CACV of Colo., 308 Ga. App. 469 (707 SE2d 872) (2011). We review the grant of summary judgment de novo, construing the evidence in favor of the nonmovant. Id. So construed, the evidence shows that on November 25, 2008, Michelle Mclntire was stopped at a red light in her family’s van when Perkins ran into the back of it with her vehicle. As a result of the collision, the Mclntires’ vehicle was deemed a total loss and they received insurance proceeds of approximately $23,000 for the fair market value of the vehicle. At the time of the collision, the Mclntires were “upside-down” on the loan they had taken out to finance the vehicle, owing more than the van was worth, with a difference of $9,294.90 between the fair market value and the outstanding loan balance.

The Mclntires argue that even though they have been fully compensated for the fair market value of the van, they are also entitled to recover the amount of their loan deficiency from Perkins. However, it is well settled that “[t]he measure of damages for the total loss of a vehicle is limited to the difference in the fair market value immediately before and after the accident. [Cit.]” Flynn v. Mack, 259 Ga. App. 882, 884 (3) (578 SE2d 488) (2003). Such damages “cannot exceed the fair market value of the automobile prior to the collision and place the plaintiff in a position superior to that which he previously held.” Sykes v. Sin, 229 Ga. App. 155, 158 (1) (493 SE2d 571) (1997). If the Mclntires were compensated for their loan deficiency amount in addition to the fair market value amount that they have already received, they would be improperly placed in a position superior to that which they previously held; recovering total damages of $32,294.90 for a vehicle that was only worth approximately $23,000 prior to the collision.

The Mclntires have cited no cases that allow for such recovery beyond the fair market value of the vehicle, and instead argue that they are entitled to have Perkins pay their loan deficiency as consequential damages. “Consequential damages are those which are the necessary and connected effect of a tortious act, even though they are to some extent dependent upon other circumstances.” OCGA § 51-12-3 (b). However, “[i]f the damage incurred by the plaintiff is only the imaginary or possible result of a tortious act or if other and contingent circumstances preponderate in causing the injury, such damage is too remote to be the basis of recovery against the wrongdoer.” OCGA § 51-12-8. Indeed, damages “which are not [an act’s] legal and natural consequence [ ] are too remote and contingent to be recovered.” OCGA § 51-12-9.

, Here, the existence of the Mclntires’ outstanding vehicle loan amount is not the legal and natural consequence of the collision with Perkins. Rather, that loan existed prior to the collision and, as the Mclntires state in their complaint, is a matter of contract between them and their lender. Thus, even if that existing loan deficiency could somehow be deemed to be a possible result of some act by Perkins, other circumstances preponderated in causing that deficiency, rendering it too remote and contingent to be recovered as consequential damages. See Broadfoot v. Aaron Rents, 200 Ga. App. 755, 758 (3) (409 SE2d 870) (1991) (no recovery for damage to credit reputation where plaintiff was already in financial trouble before defendant’s wrongful conduct, which was at best a remote cause of any such injury).

Decided June 26, 2012

Reconsideration denied July 27, 2012

Michelle C. Mclntire, Timothy L. Mclntire, pro se.

Brown, Readdick, Bumgartner, Carter, Strickland & Watkins, John E. Bumgartner, Garret W. Meader, for appellee.

We note that the Mclntires’ reliance on cases involving loan deficiencies in the context of a borrower and lender relationship is misplaced. Those cases simply recognize that after a lender repossesses a vehicle due to a borrower’s failure to make payments, the lender still retains its contractual and statutory rights to recover any remaining loan deficiency. See Beacham v. Calvary Portfolio Svcs., 304 Ga. App. 37 (695 SE2d 368) (2010); Parham v. Peterson, Goldman & Villani, 296 Ga. App. 527 (675 SE2d 275) (2009); Consumer Portfolio Svcs. v. Rouse, 282 Ga. App. 314 (638 SE2d 442) (2006). There is no such statutory or contractual right of recovery in the instant tort case. The courts have no authority to grant an unrecognized right of recovery; rather, “[t]hat is a matter for the legislature. [Cit.]” Lumpkin v. Mellow Mushroom, 256 Ga. App. 83, 85 (567 SE2d 728) (2002).

Accordingly, the trial court did not err in granting summary judgment to Perkins on the Mclntires’ claim seeking to recover damages for their loan deficiency. See generally Hoeflick v. Bradley, 282 Ga. App. 123, 126 (2) (637 SE2d 832) (2006) (trial court correctly granted summary judgment as to consequential damages claim for “ruined vacation” allegedly arising from motor vehicle collision).

Judgment affirmed.

Barnes, P. J., and Adams, J., concur.


author: Barnes, Presiding Judge.

text:
    A12A0100.
    CHAUDHURI v. FANNIN REGIONAL HOSPITAL, INC.
    (730 SE2d 425)
   Barnes, Presiding Judge.

Swapan Chaudhuri, M.D., sued Fannin Regional Hospital, Inc., for breach of his physician’s services contract, seeking payment for services rendered and for services he would have rendered if the hospital had scheduled him to work during the 60 days between his termination notice and the end of the contract. The hospital counterclaimed, seeking the return of money it had already paid Dr. Chaudhuri “for shifts that were not performed in accordance with the Agreement.”

After discovery ended, the hospital moved for summary judgment on both the complaint and counterclaim. The trial court granted summary judgment to the hospital on Dr. Chaudhuri’s complaint but denied it on the hospital’s counterclaim, although the court also set off money due to Chaudhuri against money the hospital had already paid him. Three months after the trial court ruled, the hospital dismissed its counterclaim, and Dr. Chaudhuri appealed. For the reasons that follow, we reverse.

A trial court properly grants summary judgment when there is no issue of material fact and the record demonstrates that the moving party is entitled to judgment as a matter of law. Holcim (US) v. AMDG, 265 Ga. App. 818 (596 SE2d 197) (2004). “On appeal, we review the trial court’s grant of summary judgment de novo to determine whether the evidence of record, viewed in a light most favorable to the nonmoving party, demonstrates any genuine issue of material fact.” (Citation and punctuation omitted.) Id.

1. In his first and second enumerations of error, Dr. Chaudhuri argues that the trial court erred in construing the contract as prohibiting him from working elsewhere while on call, and in concluding that he was not entitled to be paid for the on-call hours he had already worked.

In this State,

[t]he construction of contracts involves three steps. At least initially, construction is a matter of law for the court. First, the trial court must decide whether the language is clear and unambiguous. If it is, the court simply enforces the contract according to its clear terms; the contract alone is looked to for its meaning. Next, if the contract is ambiguous in some respect, the court must apply the rules of contract construction to resolve the ambiguity. Finally, if the ambiguity remains after applying the rules of construction, the issue of what the ambiguous language means and what the parties intended must be resolved by a jury. (Cit.)

Schwartz v. Harris Waste Mgmt. Group, 237 Ga. App. 656, 660 (2) (516 SE2d 371) (1999). The existence or nonexistence of an ambiguity is a question of law for the court. Southeast Atlantic Cargo Operators v. First State Ins. Co., 197 Ga. App. 371, 372 (398 SE2d 264) (1990). If the court determines that an ambiguity exists, however, a jury question does not automatically arise, but rather the court must first attempt to resolve the ambiguity by applying the rules of contract construction set forth in OCGA § 13-2-2. Id.

The physician services agreement provided that Dr. Chaudhuri would serve as the Director of Hospitalist Services for the defendant Fannin Regional Hospital from February 1, 2007 to January 31, 2010. Dr. Chaudhuri had been the director of a similar program in Alabama and wanted to help develop the new program at Fannin Regional. The agreement provided that, as the director, he was required to participate in necessary administrative functions, supervise, manage, and oversee the Service, arrange for in-service training, and assist the hospital in obtaining and maintaining accreditation and licenses, among other things. Dr. Chaudhuri was also required to provide in-patient hospitalist coverage, not to exceed a rolling average of fifteen 24-hour shifts per month. If not present at the hospital during his shift, he was required to be on call and to return to the facility within 45 minutes, if necessary. According to Dr. Chaudhuri, Fannin Regional’s CEO, Mike Huff, knew that Dr. Chaudhuri worked nights at Northside Hospital Cherokee and lived in Canton, 55 to 60 miles from Fannin Regional. When Dr. Chaudhuri expressed reservations about being able to reach the hospital fast enough to respond to an emergency, he testified, Huff assured him that the distance was no problem, because the emergency room doctors at Fannin Regional would handle any emergencies that arose.

Under “Schedule of Services Required from Contractor,” the contract provided: “The Service shall be conducted during those days and times which Facility determines to be necessary in order to properly address patient needs and effectively coordinate with other Services.” Of several possible options, including ones that would have specified the number of hours per day and days per week to be worked in-house and on call, Dr. Chaudhuri agreed to provide service “[o]n an as-needed basis as scheduled by the Facility.” The following terms are hand-written in the “Billing and Compensation” section of the contract:

Each scheduled 24 hour shift shall be paid accordingly: 8 hours in-house coverage at $125 per hour and 16 hours on-call coverage at $25 per hour[,] not to exceed a rolling average of fifteen (15) shifts per month.

Finally, the contract included an “Official Time Record” form for Dr. Chaudhuri to complete and return to Fannin Regional periodically.

Dr. Chaudhuri testified that Huff told him in an August 2007 meeting to get someone else to cover nights at Fannin Regional, but he was unable to find anyone to do so and the hospital scheduled him to work on call in September. While on call, Dr. Chaudhuri testified, he was being paid to respond to his beeper, typically 40 to 50 times per shift, and was being paid one-sixth of what he earned when he worked in-house.

After Dr. Chaudhuri worked his regular shifts in September 2007 as scheduled, the hospital refused to pay him for his on-call time. In September 2007, Dr. Chaudhuri returned his reimbursement check for hours worked during the week of September 9 because it did not include payment for the time he was on-call during his shifts. On September 27, 2007, the hospital sent Dr. Chaudhuri a letter informing him that it was terminating his contract in 60 days under Section 3.2 of the Physician Services Agreement, effective on November 26, 2007. The hospital also asked Dr. Chaudhuri to send in completed time sheets differentiating between his on-call and in-house hours, and noted that the on-call provision of his contract required him to return to the facility within 45 minutes of being called. Dr. Chaudhuri returned the completed time sheets as requested.

Ultimately, the hospital declined to pay Dr. Chaudhuri for the on-call hours he worked in September 2007, and refused to schedule him for any shifts in October and November 2007. Dr. Chaudhuri sued Fannin Regional for breach of contract, seeking $21,000 compensation for the 15 shifts he worked in September 2007, and $42,000 for the 30 shifts he should have been scheduled to work in October and November 2007. He also sought attorney fees and expenses of litigation under OCGA § 13-6-11.

The trial court held that Dr. Chaudhuri admitted to “double scheduling” during his on-call shifts at Fannin and continued to “double schedule” after being told to stop. The trial court also found that Dr. Chaudhuri was not entitled to be paid for his on-call time in September 2007 because he could not have returned “in a safe manner” to Fannin Regional within 45 minutes while he was working at Northside.

The contract itself, however, did not prohibit Dr. Chaudhuri from working elsewhere while he was on call, nor did it otherwise restrict the conditions under which he could answer calls from Fannin Regional. It is undisputed that Dr. Chaudhuri was always able to discharge his on-call duties to Fannin Regional by telephone, and therefore never breached the contract provision requiring him to return to the facility within 45 minutes.

To the extent Fannin Regional raises an anticipatory breach of contract claim, anticipatory repudiation arises only upon an unqualified repudiation of the entire contract.

The “anticipatory repudiation” of a contract occurs when one party thereto repudiates his contractual obligation to perform prior to the time such performance is required under the terms of the contract. Thus when one party to a bilateral contract of mutual dependent promises absolutely refuses to perform and repudiates the contract prior to the time of his performance, the innocent party is at liberty to consider himself absolved from any future performance on his part. The breach which will form the basis for an anticipatory breach of contract action is an unqualified repudiation of the entire contract prior to the time for performance.

(Citation and punctuation omitted; emphasis in original.) Coffee Butler Svc. v. Sacha, 258 Ga. 192, 193 (1) (366 SE2d 672) (1988). The record does not support a finding of an anticipatory breach that would absolve Fannin Regional from performing its obligations under the contract.

Accordingly, the trial court erred in finding that Fannin Regional was entitled to summary judgment on Dr. Chaudhuri’s claim for unpaid compensation.

2. Dr. Chaudhuri also asserts that the trial court erred in setting off his entitlement to $21,000 in compensation for the in-house hours he worked in September 2007 against Fannin Regional’s counterclaim for the recovery of all sums it paid Dr. Chaudhuri for on-call services while he was working at Northside Cherokee.

The contract provides that “any amounts due to [Dr. Chaudhuri] by [Fannin Regional] may be reduced by any and all monies due and owing by [Dr. Chaudhuri] to [Fannin Regional], under this Agreement or any other agreement between the parties, to the extent allowed by law.” The trial court found that Fannin Regional was entitled to repayment of the money it previously paid Dr. Chaudhuri for on-call services while he was working at Northside. Further, although neither party had submitted evidence of the exact number of hours or days involved in Fannin Regional’s counterclaim, the trial court found that the amount Dr. Chaudhuri owed Fannin Regional exceeded the money Fannin Regional owed to Dr. Chaudhuri. Therefore, the court concluded, neither party was entitled to recover, because the hospital’s claim offset Dr. Chaudhuri’s claim.

As addressed in Division 1, however, the contract did not prohibit Dr. Chaudhuri from working elsewhere while he was on call, and no evidence in the record established that he ever breached the contract by failing to return to the hospital in 45 minutes when needed. Accordingly, the trial court erred in finding a set-off.

3. Finally, Dr. Chaudhuri asserts that the trial court erred in finding that he was not entitled to compensation during the 60-day period between the notice of termination and the termination itself. The trial court found that Fannin Regional had no obligation to schedule Dr. Chaudhuri to work, based on the contract provision in which he agreed to provide services “on an as-needed basis as scheduled by the Facility.”

Fannin Regional’s letter of September 22, 2007 to Dr. Chaudhuri stated that it would “serve as his sixty (60) days prior written notice that the Facility is terminating this agreement.. . effective November 26, 2008 [sic],” in accordance with Section 3.2 of the Physician Services Agreement. Section 3.2 provides:

Either party may terminate this Agreement, without cause, by providing not less than sixty (60) days prior written notice stating the intended date of termination. In the event that this Agreement is terminated for any reason prior to the expiration of one (1) year from the Effective Date, neither party shall enter into an agreement for similar services with the other party until after the expiration of the first year of the initial term.

In contrast, Sections 3.3 and 3.5 of the agreement provide grounds for immediately terminating the agreement, such as, for example, an arrest, the failure to maintain professional liability insurance, license revocation, or if the hospital closed or was placed into bankruptcy. Section 3.4 outlines another termination provision in the event that a party materially breaches the agreement in a manner other than those set forth in Sections 3.3 and 3.5. In that case, the other party could have elected to terminate the agreement by giving not less than 30 days written notice specifying the nature of the breach, after which the breaching party had 15 days to remedy the breach or the agree-would be terminated at the end of the 30-day notice

“The rules of construction require the court to consider the policy as a whole, to give effect to each provision, and to interpret each provision to harmonize with each other.” ALEA London Ltd. v. Woodcock, 286 Ga. App. 572, 576 (2) (649 SE2d 740) (2007). The court should avoid interpreting a contract in a way that renders portions of it meaningless. Georgia Farm &c. Ins. Co. v. Gaster, 248 Ga. App. 198, 199 (546 SE2d 30) (2001); OCGA § 13-2-2 (4); Holloman v. D.R. Horton, Inc., 241 Ga. App. 141, 142 (1) (a) (524 SE2d 790) (1999).

Fannin Regional argues, and the trial court found, that it was not obliged to pay Dr. Chaudhuri anything in October and November 2007, after its notice but before the actual termination date, because the contract did not require the hospital to schedule him for any shifts. But this interpretation of the provision that Dr. Chaudhuri would provide services “on an as-needed basis as scheduled by the Facility” would render meaningless the contract’s provisions distinguishing between offenses that are grounds for immediate termination and offenses that are grounds for possible termination if not cured, and the provisions for termination without cause, all of which have different notice requirements. Why require a 60-day notice before a party may terminate the contract without cause if the notice is meaningless?

Thus, the “as-needed” language of the contract and its termination and notice provisions are ambiguous. “This ambiguity requires application of the usual rules of construction. One of those rules is to consider the background of the contract and the circumstances under which it was entered into, particularly the purpose for the particular language to be construed.” (Citations and punctuation omitted.) Horwitz v. Weil, 275 Ga. 467, 469 (569 SE2d 515) (2002).

The hospital had been scheduling Dr. Chaudhuri to work 15 shifts per month. Dr. Chaudhuri testified that in October and November 2007, after giving him the 60-day termination notice, the hospital needed him but would not schedule him to work. Instead, the only other full-time hospitalist at the hospital was scheduled to work 25 shifts in October 2007, which was “outright dangerous from the patient care point of view,” according to Dr. Chaudhuri, and also scheduled him to work an excessive number of shifts in November 2007.

Decided July 11, 2012

Reconsideration denied July 27, 2012.

Patricia B. Ball, for appellant.

King & Spalding, Gregory C. Sicilian, Robert C. Khayat, Jr., for appellee.

Applying the applicable rules of construction, considering the circumstances and background under which the contract was created, Fannin Regional was obliged to schedule Dr. Chaudhuri for 15 shifts in October and November 2007. The hospital is therefore required to reimburse him for that amount of time.

Accordingly, the trial court erred in granting summary judgment to Fannin Regional and in setting off money due to Dr. Chaudhuri.

Judgment reversed.

Adams and McFadden, JJ., concur.

       A hospitalist is a physician who treats only hospitalized patients, substituting as their primary care doctor until they are discharged.

       While Fannin Regional cites to a document in the record titled'“Minutes from Hospitalist Meeting” on August 9,2007, as support for certain factual contentions, the minutes are hearsay, the veracity of which Dr. Chaudhuri disputes.

       While the letter states that the termination date is effective November 26, 2008, the parties agree that the intended year was 2007.


author: Doyle, Presiding Judge.

text:
    A12A0139.
    INGLES MARKETS, INC. et al. v. KEMPLER et al.
    (730 SE2d 444)
   Doyle, Presiding Judge.

Lynn K. and Gary S. Kempler brought suit against Ingles Markets, Inc., and Ingles Acquisition of Georgia, LLC (collectively “the Appellants”), for trespass, nuisance, and negligence and for attorney fees and punitive damages based on increased intrusion of storm water runoff from the Appellants’ property to the Kemplers’ property. The jury returned a verdict in favor of the Kemplers. The Appellants appeal, and for the reasons that follow, we affirm.

If a jury has returned a verdict, which has been approved by the trial judge, then 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 verdict will be upheld on appeal.

So viewed, the Kemplers’ 100-acre property was valued at approximately $5 million prior to the Appellants’ development of adjacent rural property. The Kemplers’ property had a dirt road extension from their asphalt driveway to a main highway in the area and a small stream leading from the Appellants’ property to a two-acre, deep-water pond, which the Kemplers used for irrigation and recreation. Prior to development of the Appellants’ property, the small stream “barely trickled . . . unless it had just rained.”

The Appellants acquired property adjacent to the Kemplers in 2007, and they began their development in early 2008, resulting in 26 acres of impervious surfaces, including paved surfaces, buildings, and soil stockpile for future development. Although the Appellants contracted to have a detention pond and outlet control structure constructed to address the increased water runoff generated from the development of the property, runoff to the Kemplers’ property increased fourfold. The Kemplers presented evidence that the increased water runoff resulted in erosion of the small stream, which previously handled the once small amounts of water runoff from the Appellants’ property; piles of mud blocking the gate access to the Kemplers’ dirt road; softened soil leading to fallen trees; collapsed fences; 15-inch ruts in the dirt road; litter and other debris washed onto the road and into the pond; increased silting and excessive turbidity in the pond, which resulted in fish kills and destruction of the pond ecosystem; increased water into the pasture below the lake, which became a “swamp” after the development and affected the Kemplers’ ability to harvest hay from that field; and runoff from the pond into an adj acent river, leading to ecological concerns in those public waters.

Real estate appraiser Larry Thomas testified that the total amount of the diminished value of the Kempler property was $607,500, which consisted of amounts to protect the property from future harm, including approximately $195,000 to install a piping system to reroute the storm water runoff from the Appellants’ property past the Kemplers’ property and approximately $97,500 to pave the dirt road. Thomas also explained that the total number included permanent loss of value to the property of approximately 13 percent and $75,000 to rehabilitate the pond. Mr. Kempler testified that as an emergency room physician, his job was very stressful, and he and Ms. Kempler purchased the property in order to have a relaxing place to live, which has been permanently affected by the acts of the Appellants. Mr. Kempler testified that he and his wife had “a miserable two years” attempting to resolve the issues with the Appellants’ development and estimated about $300,000 of injury to his peace of mind and feelings as a result of the runoff issues.

The jury determined that the Appellants’ acts and omissions constituted negligence for which the Appellants were 40 percent at fault for the damages resulting from these acts or omissions. For this claim, the jury awarded the Kemplers $400,000. Next, the jury determined that the Appellants had created or maintained a permanent nuisance for which they were 80 percent liable and awarded the Kemplers $150,000 for diminution of property value and $300,000 for the cost to protect the Kemplers’ remaining property. Finally, the jury determined that the Appellants’ acts or omissions created “wounded feelings, loss of peace of mind, discomfort, unhappiness, and annoyance” to the Kemplers for which the Appellants were 80 percent responsible. The jury awarded the Kemplers $125,000 for the injury to their feelings.

The jury also determined that the Appellants were liable for attorney fees, costs, and punitive damages.

1. The Appellants argue that the trial court erred by expressly limiting the jury’s obligation to consider the fault of unnamed non-parties. We disagree.

OCGA § 51-12-33 (c) states that “[i]n assessing percentages of fault, the trier of fact shall consider the fault of all persons or entities who contributed to the alleged injury or damages, regardless of whether the person or entity was, or could have been, named as a party to the suit.” The statute continues, however, stating in subsection (d) that

(1) Negligence or fault of a nonparty shall be considered if the plaintiff entered into a settlement agreement with the nonparty or if a defending party gives notice not later than 120 days prior to the date of trial that a nonparty was wholly or partially at fault[; and] (2) [t]he notice shall be given by filing a pleading in the action designating the nonparty and setting forth the nonparty’s name and last known address, or the best identification of the nonparty which is possible under the circumstances, together with a brief statement of the basis for believing the nonparty to be at fault.

It is undisputed by the Appellants that they failed to file any notice pursuant to the terms of OCGA § 51-12-33 (d) (1). Lowe & Associates provided notice that nonparty Sae Soon Korean Church was at fault for some damages to the Kemplers’ property. Pursuant to this notice, the trial court instructed the jury that it should consider the liability of the Church when deliberating. The Appellants now contend that this instruction was based on an erroneous reading of the statute by the trial court, namely that subsection (c) requires the jury to deliberate on the liability of all potential nonparties and subsection (d) does not place a limit on that requirement, but rather allows for the express consideration of particular nonparties. This reasoning is unpersuasive.

OCGA § 51-12-33 (c) simply explains that all nonparty tortfeasors, regardless of whether they can be held liable for their actions, should be considered by the jury during deliberations. Subsection (d) provides the mechanism by which the defendant exercises its statutory right to have such nonparty tortfeasors presented to the jury. Contrary to the Appellants’ contentions, this reading of the statute does not render subsection (c) superfluous in any way. Accordingly, this enumeration is without merit.

2. The Appellants also argue that the trial court erred by entering judgment based on the jury verdict because the verdict form awarded impermissible double damages.

Generally, the jury’s award cannot be successfully attacked so as to warrant a new trial unless it is so flagrantly excessive or inadequate, in light of the evidence, as to create a clear implication of bias, prejudice or gross mistake on the part of the jurors. Even though the evidence is such as to authorize a greater or lesser award than that actually made, the appellate court will not disturb it unless it is so flagrant as to shock the conscience. Moreover, the trial court’s approval of the verdict creates a presumption of correctness that will not be disturbed absent compelling evidence. A verdict will not be set aside as unsupported by the evidence when the amount of it is within the range covered by the testimony, though it may not correspond with the contentions of either party.

Moreover, “a plaintiff [is prohibited] from a double recovery of damages; the plaintiff is entitled to only one recovery and satisfaction of damages, because such recovery and satisfaction is deemed to make the plaintiff whole.”

(a) Trespass/Nuisance Award

The Appellants first contend that the jury’s award for the Kemplers’ trespass/nuisance claim constitutes an impermissible double recovery because it awarded damages both for diminution of value and for future costs to protect the property from additional deterioration. The Appellants rely on Ga. Northeastern R. v. Lusk, in support of its contention that such an award is impermissible double recovery as a matter of law. Nevertheless, the Supreme Court recently explained its holding in Lusk, stating that the Court “did not rule that Georgia law precludes a diminution in value award in addition to restoration and repair costs where the repair does not fully restore the property to its pre-damage value.” This is because “the measure of damages in such cases is intended to place an injured party, as nearly as possible, in the same position it would have been if the injury had never occurred.” The Court continued:

In applying these principles, this Court has recognized that under Georgia law, cost of repair and diminution in value can be alternative, although often interchangeable, measures of damages with respect to real property. [Nevertheless,] [although unusual, it may sometimes be appropriate, in order to make the injured party whole, to award a combination of both measures of damages. In such cases, notwithstanding remedial measures undertaken by the injured party, there remains a diminution in value of the property, and an award of only the costs of remedying the defects will not fully compensate the injured party.

Here, the trial court properly instructed the jury that they could not award duplicative amounts with regard to repairing the property and the amount of the diminished value of the property. The verdict form also establishes that the jury made a determination based on the testimony presented at trial, awarding $300,000 to the Kemplers for the cost to protect the property from future erosion and $150,000 for the amount of diminished value of the property sustained to that point. The Kemplers’ testimony also supported the jury’s $125,000 award for injured feelings based on the nuisance.

(b) Simultaneous Trespass/Nuisance and Negligence Awards

The Appellants’ claim that improper double damages were awarded because the jury granted awards on both the nuisance and negligence claims is without merit. The testimony at trial established damages to the property including diminished value and costs to protect the property at over $600,000. This total amount was not reflected in the jury’s nuisance award, and the jury was authorized to award additional general damages based on the parties’ negligence within its “enlightened conscience” and based on the testimony presented at trial. The Appellants have failed to establish that the fact that the jury chose to allocate certain amounts of the special damages proven by the testimony between the two causes of action is reversible error.

3. The Appellants contend that the trial court erred by denying their motion for mistrial on the basis of Mr. Kempler’s testimony. The Appellants failed to lodge a contemporaneous objection to this testimony, and thus, they have waived this argument.

4. Ingles Acquisition maintains that the trial court erred by denying its motions, including its motion for directed verdict, because the Kemplers failed to present evidence that Ingles Acquisition committed any act or omission leading to the Kemplers’ damages. We disagree.

A directed verdict is proper only where there is no conflict in the evidence as to any material issue and the evidence introduced with all reasonable inferences therefrom demands a particular verdict. On appeal, the standard of review of a trial court’s denial of a motion for directed verdict is the any evidence standard.

(a) With regard to their nuisance/trespass claim, “the essential element of nuisance is control over the cause of the harm. The tortfeasor must be either the cause or a concurrent cause of the creation, continuance, or maintenance of the nuisance.” The Kemplers presented evidence that Ingles Acquisition owned the property from which the increased storm water runoff damaged the Kempler property, and its employees were aware of the problems associated with the development with regard to the Kemplers’ property. As an adjoining landowner, Ingles Acquisition owed a duty to the Kemplers, and based on the testimony presented that agents at Ingles Acquisition were aware of the Kemplers’ complaints, the jury was authorized to find that Ingles Acquisition breached its duty and was liable to the Kemplers for nuisance/trespass.

(b) With regard to the Kemplers’ negligence claim, the Appellants presented evidence that, prior to quitclaiming its interest in the property to Ingles Markets, Ingles Acquisition owned the property when the development failed to comply with state statutes and when the contractor in charge of installing the detention pond in May 2007 failed to install it by early 2008. Accordingly, this enumeration is without merit.

5. Finally, the Appellants argue that the trial court erred by entering judgment based on the jury verdict because the jury failed to properly apportion liability between Ingles Markets and Ingles Acquisition. We disagree.

If there was any error in the trial court’s entry of the jury verdict, it was invited error. During closing argument, trial counsel, representing both Ingles Acquisition and Ingles Markets, argued to the jury that the two entities were “really just one company .... There’s no evidence that there’s any separate action by Ingles Acquisition as to control, ownership, having anything to do with this property, we’re just Ingles. And please treat us that way when you’re considering the numbers, whatever you consider.”

Decided July 11, 2012

Reconsideration denied July 27, 2012

Adam N. Struletz, Gregory M. Swartzberg, for appellants.

Coleman, Chambers & Rogers, Robert W. Chambers III, James C. Rogers, Temple, Strickland, Dinges & Schwartz, William A. Dinges, Weinberg, Wheeler, Hudgins, Gunn & Dial, Nicholas P. Panayotopoulos, Stephen J. Rapp, for appellees.

[A] party cannot, in the hope or expectation of obtaining a verdict in his own favor, follow a trial tactic which he may believe to be advantageous but which results in a waiver and, when a verdict is returned which he now seeks to overturn, enumerate the error as a ground for setting it aside.

Accordingly, this enumeration is without merit.

Judgment affirmed.

Andrews and Boggs, JJ., concur.

       The Kemplers also named as defendants R.W. Smith Company and Lowe & Associates, Inc., but those parties are not a part of this appeal.

       (Punctuation omitted.) Turner Broadcasting System v. McDavid, 303 Ga. App. 593, 593-594 (693 SE2d 873) (2010).

       The jury determined that R.W. Smith Company was ten percent at fault for the resulting damages and Lowe & Associates was fifty percent at fault.

       The jury determined that R.W. Smith Company was 20 percent liable for creating or maintaining a nuisance.

       The jury determined that R.W. Smith Company was 20 percent liable for acts or omissions creating wounded feelings, loss of peace of mind, discomfort, unhappiness, and annoyance.

       See McReynolds v. Krebs, 307 Ga. App. 330, 333 (1) (705 SE2d 214) (2010).

       (Citation and punctuation omitted.) McDavid, 303 Ga. App. at 609 (4).

       (Punctuation omitted.) Monterrey Mexican Restaurant &c. v. Leon, 282 Ga. App. 439, 450 (5) (c) (638 SE2d 879) (2006) (award for claims of money had and received and of conversion amounted to double recovery).

       277 Ga. 245 (587 SE2d 643) (2003).

        Royal Capital Dev. v. Maryland Cas. Co., 291 Ga. 262, 266 (2) (728 SE2d 234) (2012).

       Id. at 264 (1).

       (Citations and punctuation omitted.) Id. at 265 (1).

       See City of Gainesville v. Waters, 258 Ga. App. 555, 558 (2) (574 SE2d 638) (2002) (“The measure of damages for discomfort, loss of peace of mind, unhappiness and annoyance of the plaintiff caused by the maintenance of a nuisance is for the enlightened conscience of the jury.”) (punctuation omitted).

       See OCGA § 51-12-2 (a) (“General damages are those which the law presumes to flow from any tortious act; they may be recovered without proof of any amount.”).

       See Ivy Road Properties v. First Citizens Bank & Trust Co., 311 Ga. App. 409, 410 (1) (715 SE2d 809) (2011). See also Gilliam v. State, 240 Ga. App. 158, 159 (1) (522 SE2d 766) (1999), citing Stephens v. State, 232 Ga. App. 738, 739 (2) (503 SE2d 643) (1998) and Sweeney v. State, 233 Ga. App. 862, 865 (4) (506 SE2d 150) (1998).

       Ingles Acquisition also argues that the trial court erred by denying its motion for summary judgment on this issue, which we do not review after entry of a verdict and judgment. See Bailey v. Annistown Road Baptist Church, 301 Ga. App. 677, 685 (4) (689 SE2d 62) (2009).

       (Punctuation omitted.) Sumitomo Corp. &c. v. Deal, 256 Ga. App. 703, 706-707 (2) (569 SE2d 608) (2002).

       (Punctuation omitted.) Id. at 707 (2).

       See Green v. Eastland Homes, 284 Ga. App. 643, 648-649 (2) (644 SE2d 479) (2007) (“one who creates a nuisance is liable for it even if he has sold the property containing the nuisance”) (punctuation omitted).

       See, e.g., Jackson v. Neese, 276 Ga. App. 724, 725 (1) (624 SE2d 139) (2005). See also Green v. Sommers, 254 Ga. App. 446, 446-447 (1) (562 SE2d 808) (2002) (induced error provides no basis for reversal on appeal); Wallace v. Swift Spinning Mills, 236 Ga. App. 613, 616 (2) (511 SE2d 904) (1999) (“It is a well-settled appellate rule that one cannot complain about a ruling of the trial court which the party’s own trial tactics or conduct procured or aided in causing.”) (punctuation omitted).

       (Punctuation omitted.) Le Twigge, Ltd. v. Wammock & Co., 187 Ga. App. 446, 448 (370 SE2d 631) (1988).


text:
    A12A0166.
    RAY v. THE STATE.
    (729 SE2d 610)
   Barnes, Presiding Judge.

On November 16, 2004, following a bench trial, Cecil Ray was convicted of possession of cocaine with intent to distribute, possession of a firearm during the commission of a crime, giving a false name, obstruction of an officer, false statement or writing, fleeing or attempting to elude a police officer, driving without insurance, operating a vehicle without a current decal, improper lane change, and improper lane usage. The trial court entered an order of nolle prosequi on a charge of possession of a firearm by a convicted felon, and Ray was found not guilty of driving without a license. In Ray v. State, 292 Ga. App. 575 (665 SE2d 345) (2008), we affirmed his conviction on direct appeal.

On June 22, 2011, Ray filed a “Motion to Vacate Void Sentence,” the denial of which Ray, pro se, now appeals. Ray contends that the trial court improperly sentenced him on the drug charge to serve 35 years without parole as a recidivist under OCGA § 17-10-7 (c), which provides:

Except as otherwise provided in subsection (b) of this Code section, any person who, after having been convicted under the laws of this state for three felonies or having been convicted under the laws of any other state or of the United States of three crimes which if committed within this state would be felonies, commits a felony within this state shall, upon conviction for such fourth offense or for subsequent offenses, serve the maximum time provided in the sentence of the judge based upon such conviction and shall not be eligible for parole until the maximum sentence has been served.

For the reasons that follow, we affirm.

“A sentence is void if it imposes punishment not permitted by law.” (Citation omitted.) Sledge v. State, 245 Ga. App. 488 (537 SE2d 753) (2000). Thus, a sentence is void if it imposes a period of confinement or fine greater than the statutory maximum for the offense or if it imposes punishment for both a greater offense and a lesser included offense for the same act. Id. at 488-489; Brown v. State, 253 Ga. App. 1, 3 (2) (557 SE2d 464) (2001). On appeal from the denial of a motion to vacate void sentence, an appellate court will not consider issues which go to the validity of the defendant’s conviction, but only those that go to the validity of his sentence. Jordan v. State, 253 Ga. App. 510, 511 (1) (559 SE2d 528) (2002). Questions of law we review de novo on appeal. O’Neal v. State, 285 Ga. 361, 362 (677 SE2d 90) (2009).

Ray argues that his sentence is void because during the sentencing hearing the trial court considered a prior burglary conviction that had previously been admitted as similar transaction evidence at trial, and that the State’s use of the prior burglary conviction in the guilt-innocence phase violated the dual use restrictions set forth in King v. State, 169 Ga. App. 444 (313 SE2d 144) (1984). No trial transcript containing the court’s sentencing was provided to this court for our review; however, it is clear from the record that the possession of a firearm by a convicted felon charge was nolle prossed and thus the prior burglary conviction was not used as a basis for a criminal conviction and for sentencing purposes.

Decided June 28, 2012

Reconsideration denied July 27, 2012.

Cecil Ray, pro se.

George H. Hartwig III, District Attorney, Venita S. McCoy, Assistant District Attorney, for appellee.

In King, we held that the State cannot use a prior felony conviction to convict a convicted felon for being in possession of a firearm, and then use the same prior conviction to enhance the sentence to the maximum punishment for the offense under the recidivist statute. Here, the charge of possession of a firearm by a convicted felon was nolle prossed, and the court used the burglary conviction and two other prior felony convictions to enhance Ray’s punishment at sentencing. Similarly, in Caver v. State, 215 Ga. App. 711 (452 SE2d 515) (1994), the State first charged Caver with shoplifting and possession of a firearm by a convicted felon by reason of one prior felony conviction. Id. at 713 (4). Then, after Caver was convicted of shoplifting, the State nolle prossed the charge of firearm possession and used the prior felony conviction that was to be the predicate conviction for that charge to enhance Caver’s punishment as a recidivist. This court affirmed, finding the State’s procedural maneuver avoided the obstacles to imposition of recidivist sentencing. Id.

Here, the trial court did not use the prior felony conviction both to support a conviction on the firearm possession charge and to enhance Ray’s sentence, but only the latter. Thus, the trial court did not err by considering that conviction in imposing punishment under OCGA § 17-10-7 (c), and by denying Ray’s motion to vacate the sentence.

Judgment affirmed.

Adams and McFadden, JJ., concur.


text:
    A12A0222.
    HOWELL et al. v. WILLIS.
    (729 SE2d 643)
   Adams, Judge.

Lee and Michelle Howell appeal from the trial court’s order granting summary judgment in favor of Ernest Willis in their suit for damages arising from the construction of their home. We affirm for the reasons set forth below.

The trial court helpfully summarized the background of this case in its summary judgment order, as follows:

This case arises from the construction of a residence in Lee County, Georgia, which is owned by [the Howells]. [The Howells] employed Defendants Shawn McDonaldf] and Shawn McDonald, LLC (hereinafter referred to collectively as “McDonald”) to construct the residence. [The Howells] contend that, after the construction of the residence was completed, and soon after they moved in, problems with the residence were noted. [The Howells contend] that multiple problems were caused by inferior work by the building contractor, McDonald. Other problems were attributed to alleged negligence on the part of Defendant Ernest Willis (“Willis”), a building inspector for Lee County, Georgia. Specifically, [the Howells] contend that Willis passed on inspection the concrete slab on which the house was constructed, which [the Howells] contend was too low and did not meet the applicable building code. The summary judgment granted herein pertains only to Willis and the claims asserted against him in his individual capacity. [The Howells] have conceded that their claims against Willis in his official capacity are barred by the doctrine of governmental immunity inasmuch as those claims are the same as claims against Lee County itself, which employed Willis. This action has already been dismissed as to the Lee County Board of Commissioners, which was also named as a defendant____

Accordingly, this appeal addresses only the claims against Willis in his individual capacity and his assertion of the defense of official immunity as to those claims.

“The doctrine of official immunity, also known as qualified immunity, affords limited protection to public officers and employees for discretionary actions taken within the scope of their official authority, and done without wilfulness, malice or corruption.” (Citation omitted.) Burroughs v. Mitchell County, 313 Ga. App. 8, 10 (720 SE2d 335) (2011). See also OCGA § 50-21-24 (2).

[A] public officer or employee may be personally liable only for ministerial acts negligently performed or acts performed with malice or an intent to injure. The rationale for this immunity is to preserve the public employee’s independence of action without fear of lawsuits and to prevent a review of his or her judgment in hindsight.

(Footnotes omitted.) Cameron v. Lang, 274 Ga. 122, 123 (1) (549 SE2d 341) (2001). Thus, “[t]he single overriding factor is whether the specific act from which liability arises is discretionary or ministerial.” (Punctuation and footnote omitted.) Happoldt v. Kutscher, 256 Ga. App. 96, 99 (1) (567 SE2d 380) (2002). And the only question before us is whether Willis’s inspection of the property was a ministerial or a discretionary act.

The distinction between a ministerial act and a discretionary act is defined as follows under Georgia law:

A ministerial act is commonly one that is simple, absolute, and definite, arising under conditions admitted or proved to exist, and requiring merely the execution of a specific duty.
A discretionary act, however, calls for the exercise of personal deliberation and judgment, which in turn entails examining the facts, reaching reasoned conclusions, and acting on them in a way not specifically directed. Whether the act of a public official is ministerial or discretionary is determined by the facts of each individual case, particularly the facts specifically relevant to the official’s act or omission from which the alleged liability arises.

(Citations and punctuation omitted.) Grammens v. Dollar, 287 Ga. 618, 619-620 (697 SE2d 775) (2010). Where, as here, the facts concerning the government employee’s behavior are not in dispute, the court determines whether those acts were discretionary or ministerial in determining whether the employee is entitled to official immunity. See Nichols v. Prather, 286 Ga. App. 889, 896 (4) (650 SE2d 380) (2007). On appeal from the trial court’s summary judgment order, “we review the trial court’s grant of summary judgment de novo to determine whether the evidence demonstrates a genuine issue of material fact and the moving party is entitled to judgment as a matter of law.” (Citation omitted.) Burroughs v. Mitchell County, 313 Ga. App. at 8-9.

Willis testified in his deposition that he was the Lee County inspector who inspected the construction on the Howells’ residence. At the time of the deposition in August 2009, Willis had been working with the Lee County Inspection Department for six to seven years and prior to that, had worked in commercial construction. Willis stated that he inspected the foundation on the Howells’ house on May 31, 2007. During that inspection, he looked at the footing to see if the rebar was properly in place and measured the footer to make sure that it was 18 inches. He determined that it was “okay.” Willis also looked at the building slab before it was poured and measured from the top of the proposed slab to the dirt to determine that it was up to four inches. He determined that “[i]t was good.” Willis did not recall the number of places he measured the Howells’ foundation, but it would be more than one. He uses his own judgment to determine exactly where on a particular slab he needs to measure.

In addition to the slab and foundation measurements, Willis also confirmed that McDonald had left clearance around the building. He also walked around the outside of the foundation to determine if it came above ground “roughly” ten to twelve inches. Although he could not recall how many different places he measured the Howells’ foundation, he said it was “good.” Based on this inspection, Willis determined that the minimum code requirements had been met with regard to the Howells’ slab and foundation, and he based his issuance of the Certificate of Occupancy upon this and subsequent inspections.

In support of his motion for summary judgment, Willis submitted an affidavit averring that he used his personal judgment and discretion in determining “whether provisions of the applicable building code were met with respect to the purposes and intent of the code.” He also indicated that he carried out these inspections without direct supervision by, or specific direction from, anyone else associated with Lee County government. Willis also submitted an affidavit from his supervisor Joey Davenport, Lee County’s Chief Building Official, who confirmed that in conducting inspections on the Howells’ residence, Willis “was authorized to use his personal judgment and discretion in determining whether provisions of the applicable building code were met with respect to the purposes and intent of the code,” including the methods he employed and the number of inspections he made. Davenport stated that Willis, therefore, was authorized to conduct the inspections without direct supervision or specific instructions from him or anyone in the building department. Davenport also said that Willis had discretion in addressing “any discrepancies he observed, which, in his opinion, did not significantly deviate from the intent and purposes of the applicable building code, or where strict interpretation of the literal wording of the building code would be impractical.”

In opposition to Willis’s motion, the Howells presented the affidavit of Greg C. Evans, a licensed professional engineer, who inspected the Howells’ residence on December 22, 2010, approximately three and one-half years after Willis conducted his inspection. Evans opined that the concrete slab approved by Willis “was not at a sufficient elevation to prevent future damage to the residence by surface water,” which he asserts should have been easily detected by Willis and which should have prompted him to require that McDonald take corrective measures. He also noted that the elevation of the Howells’ front yard obviously decreases in elevation toward the home, which he asserts is also a building code violation.

The trial court concluded based upon this evidence that Willis’s actions in inspecting the Howells’ residence were discretionary, not ministerial, in nature and thus that Willis enjoys “immunity from suit in his individual capacity.”

Willis bore the burden on summary judgment of demonstrating that he was entitled to official immunity by showing that the specific acts he performed were discretionary. See Ga. Dept. of Corrections v. Lamaine, 233 Ga. App. 271, 275 (1) (502 SE2d 766) (1998) (Beasley, J., dissenting). Cf. Sawyer v. Coleman, 245 Ga. App. 37, 38-39 (537 SE2d 193) (2000) (in actions under 42 USC § 1983, government official has burden of demonstrating that alleged violation occurred while she was acting within the scope of her discretionary authority). And this Court has previously held in the case of an inspection “the specific act from which liability arises” is not an inspector’s appearance at a particular site to conduct an inspection. But rather liability “must arise from the acts [the inspector] was required to perform during the inspections.” Happoldt v. Kutscher, 256 Ga. App. at 99 (1).

Willis presented evidence showing that he was required to perform inspections, but that he was granted discretion in determining how he went about conducting them, the methodology he employed, the number of inspections he made and the requirements, if any, he placed on contractors afterward. Thus, for example, he was not required to measure a foundation in a particular place or number of places to determine if it complied with the applicable codes. He testified that he determined how and where he would measure based upon his observance of a particular foundation. Willis had no direct supervision or specific directions in conducting these inspections. Moreover, he was instructed to use his own judgment in determining whether any deviations from the code were acceptable and whether any corrective measures were required. And Willis’s testimony indicates that he used his personal judgment and discretion in inspecting the Howells’ property during construction. Thus, Willis carried his burden on summary judgment of demonstrating that his actions in conducting this inspection were discretionary and required more than “merely the execution of a specific duty” required for a ministerial action. See Standard v. Hobbs, 263 Ga. App. 873, 876 (1) (589 SE2d 634) (2003) (action is ministerial only if county creates policy requiring certain actions under certain situations); Happoldt v. Kutscher, 256 Ga. App. at 99-100 (1) (where review officer was required to exercise personal deliberation and judgment in determining whether standards were met, his determination was discretionary in nature); Kordares v. Gwinnett County, 220 Ga. App. 848, 851 (470 SE2d 479) (1996) (absent county procedure dictating the method of inspection, road official’s alleged negligent inspection was discretionary).

Once Willis satisfied his burden of establishing his defense of official immunity,

the burden of production of evidence shift[ed] to the [Howells], who [could] survive summary judgment in the same fashion that [they] would survive a motion for directed verdict at trial, i.e., by presenting any evidence which creates a jury issue on an element of the affirmative defense.

(Citations omitted.) Weston v. Dun Transp. & Stringer, 304 Ga. App. 84, 85 (695 SE2d 279) (2010).

We conclude that the Howells failed to carry their burden. They relied primarily upon Evans’s affidavit to establish the applicable codes and Willis’s alleged failure to ensure compliance with them. The trial court, however, found the affidavit to be “replete with conclusions constituting a mixture of law and fact which are not admissible as opinion evidence[,]” citing Rios v. Norsworthy, 266 Ga. App. 469, 472 (2) (597 SE2d 421) (2004). See also Lawhorne v. Soltis, 259 Ga. 502, 504 (2) (384 SE2d 662) (1989) (“Opinion evidence is not admissible if the inference drawn is a mixture of law and fact.”).

Pretermitting whether the trial court accurately characterized Evans’s affidavit testimony, we conclude that the affidavit was insufficient to establish the content of the codes applicable to an inspection of the Howells’ residence. Building codes are not law, and their authority must be established before they are introduced into evidence:

The general rule that safety codes or rules promulgated by government departments or voluntary associations for their informative value do not have the force of law and are not admissible in evidence upon the subjects to which they relate [ ] applies to bar the admission of such codes or rules on the issue of negligence____The fact that such authority is not sworn to[ ] is met in this jurisdiction by the sworn evidence of an expert witness that such authority is esteemed by the professions as good authority on the subject. . . .

(Citations and punctuation omitted.) Dayoub v. Yates-Astro Termite Pest Control Co., 239 Ga. App. 578, 581 (2) (b) (521 SE2d 600) (1999). Evans’s affidavit cites to Section 18-31 of the Lee County Building Code and states that it adopts by reference several building codes. The affidavit then purports to quote the 2006 version of one of those codes, the “International Building Code for One- and Two-Family Dwellings,” (IRCFD). Even if we were to assume, without deciding, that Evans’s affidavit could be sufficient to establish that the codes referenced are “good authority on the subject,” we note that neither Section 18-31 of the Lee County Building Code nor the sections of the IRCFD upon which Evans relies are attached to his affidavit or are otherwise part of the record in this case. “Accordingly, the expert’s assertion regarding the [codes’] contents is inadmissible hearsay and without probative value. See OCGA § 9-11-56 (e) (‘Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith.’); [Cit.]” Morgan v. Horton, 308 Ga. App. 192, 197 (707 SE2d 144) (2011). While an expert may offer testimony as to industry practices and whether a particular condition is consistent with those practices, an expert affidavit is insufficient to establish the contents of a particular code or standard unless copies are attached to his affidavit or are otherwise made part of the record. Id. The record in this case, therefore, contains no admissible evidence of the Lee County Building Code or the IRCFD.

Thus, although the Howells argue that Willis was charged with specific ministerial tasks dictated by these building codes, they have produced no admissible evidence of the codes themselves. Without such evidence, the Howells cannot establish that Willis’s actions in performing the inspections were ministerial in nature. “Procedures or instructions adequate to cause an act to become merely ministerial must be so clear, definite and certain as merely to require the execution of a relatively simple, specific duty. (Cit.)” (Footnote omitted.) Happoldt v. Kutscher, 256 Ga. App. at 98 (1). And even though Willis acknowledged in his deposition that certain minimum standards exist for construction sites, without admissible evidence of the applicable rules, we cannot determine whether the standards were so clear, definite and certain as to merely require the execution of a simple task.

This case is distinguishable, therefore, from Heller v. City of Atlanta, 290 Ga. App. 345 (659 SE2d 617) (2008), upon which the Howells rely. In that case, the defendant, a city Vehicle for Hire Inspector, had purported to conduct an inspection on a taxi that subsequently spun out of control due to tires with little or no tread, resulting in the plaintiffs wife’s death. A state law requires that “[a]ll tires . . . [s]hall have not less than 2/32 inch tread measurable in all major grooves.” OCGA § 40-8-74. And this Court concluded that “[c]hecking tires for proper tread depth is a simple, ministerial task.” Id. at 348 (1). Moreover, the inspector stated that he was unaware of this statutory requirement. Id. at 348-349 (1). Thus, no evidence existed that the inspector had checked the tires at all to see if they complied with the standard. And on certiorari, our Supreme Court agreed that the inspection of tires was ministerial in nature and found that the inspector “had no ‘discretion’ to ignore whether the tires met this minimum legal requirement and allow a taxi with inadequate tread on its tires to be cleared for use on the roads.” Ga. Dept. of Transp. v. Heller, 285 Ga. 262, 267 (2) (674 SE2d 914) (2009).

In Heller, the applicable law required a measurement of 2/32 inch in all major grooves of a tire, which indicates not only the required measurement, but also where the measurement must be taken, i.e., the tire’s major grooves. A significant size differential exists between a tire tread and the foundation of an entire house, and without admissible evidence of the code, we have no indication that the building codes in this case dictated where or how any particular measurement must be taken on the foundation. Moreover, unlike the inspector in Heller, Willis testified that he did inspect the property, took measurements at various locations and concluded in his personal judgment that they were “good.”

Thus, based upon the evidence in the case, the Howells’ allegations that Willis failed to conduct adequate and proper inspections are merely allegations that Willis failed to use proper judgment in conducting those inspections. Peele v. Dobbs, 196 Ga. App. 684 (396 SE2d 600) (1990) (building inspector entitled to official immunity where allegations that he inspected chimney, but failed to use sound judgment merely alleged a violation of a discretionary function). We conclude, therefore, that Willis was entitled to official immunity from the Howells’ claims and that the trial court properly granted summary judgment to Willis on that ground.

Decided June 29, 2012

Reconsideration denied July 27, 2012.

John P. Cannon, for appellants.

Alexander & Vann, William C. Sanders, James A. Garland, for appellee.

Judgment affirmed.

Barnes, P. J., and McFadden, J., concur.

       After this suit was filed, Shawn McDonald, individually, filed a Chapter 7 bankruptcy petition and the matter was stayed as to him. The trial judge’s order indicates that Shawn McDonald received a discharge in bankruptcy on October 22, 2010. Shawn McDonald, LLC presumably remains, at least, a nominal party to the litigation.

       No evidence exists that Willis acted with malice, wilfulness, or an intent to injure in inspecting the Howells’ construction.

       Evans also outlined the building codes he asserts were applicable to the Howells’ residence, hut as discussed further below, this portion of the affidavit is inadmissible hearsay.

       “Further, we note that ‘[p]rivately established rules are admissible as illustrative of negligence, but the violation of such a rule is not negligence in and of itself.’ ” (Citations and punctuation omitted.) Dayoub v. Yates-Astro Termite Pest Control Co., 239 Ga. App. at 581 (2) (b), n. 1.