Brown Realty Associates, Inc. v. Thomas, A89A1259

CourtUnited States Court of Appeals (Georgia)
Citation389 S.E.2d 505,193 Ga.App. 847
Docket NumberNo. A89A1259,A89A1259
Parties, RICO Bus.Disp.Guide 7463 BROWN REALTY ASSOCIATES, INC. et al. v. THOMAS.
Decision Date20 November 1989

McKenney & Froelich, William J. McKenney, Atlanta, David M. Kupsky, for appellants.

Sakas & Horne, Jeffrey L. Sakas, Michael P. Froman, Robert S. Whitelaw, Atlanta, for appellee.


Following denial of their motion to vacate, set aside, and in arrest of judgment, defendants Brown Realty Associates, Inc., Alonza C. Brown, Gladys R. Brown, and Alonza C. Brown, Jr. (hereinafter the Browns) appeal from the judgment entered on a jury verdict in favor of plaintiff Thomas. The suit alleged fraud, violation of the Fair Business Practices Act of 1975 (FBPA), OCGA § 10-1-390 et seq., and violation of the civil Georgia Racketeer Influenced & Corrupt Organizations Act (RICO), OCGA § 16-14-1 et seq., in the Browns' acquisition of Thomas' home.

Thomas was originally one of five plaintiffs who filed separate suits contending that the Browns had engaged in a scheme of "foreclosure fraud" to acquire their residences. The litigation was initially certified below as a class action but the certification was reversed on appeal to the Supreme Court. See Stevens v. Thomas, 257 Ga. 645, 361 S.E.2d 800 (1987); see also Brown v. Thomas, 257 Ga. 68, 354 S.E.2d 830 (1987) in regard to the appeal of a contempt order against the Browns.

1. Appellants contend that the trial court erred in denying their motion for summary judgment as to Thomas' claims of fraud and violation of the FBPA. This Court cannot consider the contention because " ' "[a]fter verdict and judgment, it is too late to review a judgment denying a summary judgment, for that judgment becomes moot when the court reviews the evidence upon the trial of the case." [Cits.]' [Cit.]" Hardaway Constructors v. Browning, 176 Ga.App. 530(2), 336 S.E.2d 579 (1985).

2. Appellants contend that the trial court erred in denying their motion to dismiss Thomas' suit with prejudice on the grounds that it was barred by the doctrines of res judicata, collateral estoppel, and estoppel by judgment inasmuch as the allegedly fraudulent sale of Thomas' property was raised as a defense in a dispossessory proceeding brought by appellants in the state court of another county.

The motion was denied on the bases that it was untimely, having been filed on the morning of trial which had been specially set after the litigation had gone on for over three years, and because the state court would not have had jurisdiction over the issues.

Without addressing the timeliness of the motion to dismiss on the affirmative defense, see OCGA § 9-11-8(c) and Ezzard v. Morgan, 118 Ga.App. 50, 51(1), 162 S.E.2d 793 (1968), the trial court correctly concluded that all of the claims, which centered around the question of title to real property, could not properly have been determined in the state court dispossessory action. Superior courts have exclusive jurisdiction in cases respecting title to land. Ga.Const.1983, Art. VI, Sec. IV, Par. I; Hyman v. Leathers, 168 Ga.App. 112, 113(2), 308 S.E.2d 388 (1983); see OCGA § 44-2-60. Res judicata only applies if the judgment is from "a court of competent jurisdiction." OCGA § 9-12-40.

3. Appellants contend the trial court erred in denying their motion in limine and thereby permitting testimony of plaintiff's witnesses who were purportedly involved in "similar transactions" with appellants. They argue that the witnesses were improperly allowed to testify about unrelated individual transactions which added little probative value to the issues but were extremely prejudicial to defendants. They do not cite any specific testimony nor do they elaborate as to how they were prejudiced. Instead they make the general assertions that, notwithstanding the RICO issues, the testimony should not have been permitted without protective measures and without satisfying threshold inquiries necessary for admission, citing Deckner-Willingham Lumber v. Turner, 171 Ga. 240, 155 S.E. 1 (1930); admission of the testimony violated the holding in Stevens v. Thomas, supra; even if the trial court did not err in failing to grant the motion in limine and/or limiting the similar transaction testimony, such evidence should have been excluded by the parol evidence rule.

The court conducted a full hearing on the motion in limine which was filed three days before trial. Defendants argued what they now urge and also that the testimony would be cumulative. The court initially denied the motion but gave defendants leave to raise further objection during the course of trial if it became clear that the objected-to testimony was cumulative. Defendants later objected and the court again denied exclusion of the testimony.

Appellants' enumeration of error requires more than a blanket objection to the testimony and some specificity regarding the alleged prejudice. See Essig v. Cheves, 75 Ga.App. 870, 876(3), 44 S.E.2d 712 (1947), decided under former Code 1933, § 6-1607, now OCGA § 5-6-40. Even if the enumeration is deemed sufficient for consideration on the merits, appellants' contention fails.

"The general character of the parties and especially their conduct in other transactions are irrelevant matter unless the nature of the action involves such character and renders necessary or proper the investigation of such conduct." OCGA § 24-2-2. (Emphasis supplied.) In order to sustain her RICO claim, plaintiff had to show, inter alia, a "pattern of racketeering activity." See OCGA § 16-14-4. Therefore, the conduct of the defendants in the proffered other transactions was relevant to establish such a pattern. Contrary to appellants' contention, permitting such evidence did not run afoul of the holding in Stevens, supra. The fact that the separate claims were determined not to have sufficient commonality so as to be appropriate for class action did not render the evidence of these other transactions irrelevant or inadmissible in establishing elements of Thomas' claims.

The authority cited by appellants did not mandate that the trial court conduct more extensive inquiry than it did at the time. Moreover, the trial court afforded defendants the protective measure of later consideration of their objection to the testimony once the court was privy to it. The very authority relied on by appellants, i.e., Deckner, supra, points to the proper admission of the objected-to evidence to show defendants' fraudulent intent in the transaction at issue. Id. 171 Ga. at 244(1), 155 S.E. 1.

Appellants' parol evidence objection also fails. The rule that parol evidence cannot be received to change or add to the terms of a written contract does not apply where the alleged contract was procured by fraud. Spires v. Relco, Inc., 165 Ga.App. 4, 5(2), 299 S.E.2d 58 (1983).

4. Appellants contend the trial court erred in admitting into evidence as plaintiff's exhibits copies of certain state and superior court deed and dispossessory indexes because such evidence was irrelevant and clearly prejudicial. They argue that the sole conceivable purpose for the indexes was to inflame and prejudice the jury by creating the false inference that Thomas was representative of the position of 140 other people, and that Thomas was allowed to do indirectly what the Supreme Court had previously ruled she could not do, i.e., pursue the litigation as a class action.

The exhibits were tendered and admitted during the testimony of plaintiff's witness Brennen, an attorney representing an individual in another lawsuit against the Browns. Brennen testified that, based on his investigation and examination of the objected-to documents, he was of the opinion that someone was engaging in an enterprise essentially founded on deceptive acts and misrepresentation by which they improperly acquired the equity out of homes of vulnerable owners who were disadvantaged by imminent foreclosure.

The evidence was relevant and its introduction valid and appropriate to show a basis for the witness' testimony. Furthermore, allowing the exhibits did not circumvent the decision to disallow the litigation as a class action. Nor could it have created the false impression that Thomas was representing others as well. There was absolutely no testimony to that effect, and the witness was asked to identify from the documents exactly which of the transfers he had investigated.

There was no error in admitting the documents.

5. Appellants contend the court committed reversible error in admitting into evidence court records of prior out-of-state litigation involving the Browns as such admission was of little probative value and extremely prejudicial as demonstrated by the award of punitive damages. They add that the records were improperly introduced for impeachment purposes.

Plaintiff sought the admission of evidence of the prior lawsuits not for impeachment purposes but to support the claim for punitive or exemplary damages. "The award of punitive damages requires a tort accompanied by aggravating circumstances either in the act or the intention, evidenced by 'wilful misconduct, malice, fraud, wantonness, oppression, or that...

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