City of College Park v. Pichon

• Decision Date: 17 March 1995
• Docket Number: No. A94A2598,A94A2598
• Citation: 456 S.E.2d 686,217 Ga.App. 53
• Parties: CITY OF COLLEGE PARK v. PICHON.
• Court: Georgia Court of Appeals

Page 686

456 S.E.2d 686

217 Ga.App. 53

CITY OF COLLEGE PARK v. PICHON.

No. A94A2598.

Court of Appeals of Georgia.

March 17, 1995.

Reconsideration Dismissed March 29, 1995.

Jenkins & Eells, Frank E. Jenkins III, Cartersville, Kirk R. Fjelstul, Atlanta, for appellant.

Franklin N. Biggins, Atlanta, Glaze, Glaze & Fincher, Steven M. Fincher, Jonesboro, for appellee.

RUFFIN, Judge.

Paul Pichon sued the City of College Park ("the City") for damages arising out of the City's failure to maintain a drainage easement it had across Pichon's property. The easement included a drainage ditch that formed a part of the City's overall drainage system and frequently overflowed onto Pichon's property. Pichon's complaint alleged that the City's failure to maintain the ditch resulted in a nuisance causing an unspecified amount of damages. The jury returned a verdict in favor of Pichon, awarding him $10,000 in compensatory damages plus $8,290 in costs of litigation and attorney fees. The City appeals from the verdict and the court's judgment thereon.

1. The City contends that the trial court erred in reversing its peremptory strike of juror number three. After selecting a jury, Pichon, who is black, objected to the City's peremptory strikes of three black panel members pursuant to Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). Although voir dire was not recorded, the record indicates that seven of the twenty-four citizens on the venire were black. The City used three of its six peremptory challenges to strike black veniremen, Pichon struck one black venireman and the resulting jury was comprised of nine white jurors and three black jurors. The City explained it struck two of the black veniremen because they both had open drainage ditches on their property over which the City had an easement. The City further explained that in both cases, the veniremen were able to reach an agreement where the City installed pipes and filled in the ditches. The City concluded that the two veniremen might harbor expectations that Pichon should have received the same treatment as they did from the City. With regard to the other venireman, juror number three, the City explained that his admitted acquaintance with one of Pichon's potential key witnesses would affect his judgment.

The court permitted the first two strikes, but disallowed the strike as to juror number three. The court noted that the City failed to ask juror number three whether or not his acquaintance with the witness would bias him in any way. As a remedy for this improper strike, the court impaneled juror number three on the jury and allowed the City to strike another member. No further objections were made concerning the matter and the proceedings continued.

Despite the City's argument that Pichon failed to make a prima facie showing of racial discrimination as to juror number three, "the record discloses that [the City] offered to provide a racially-neutral explanation for [its] peremptory challenges even before the trial court determined affirmatively on the record that a prima facie case had been made. Once the party exercising peremptory challenges has offered a race-neutral explanation for the peremptory challenges and the trial court has ruled on the ultimate question of intentional discrimination, the preliminary issue of whether the [complaining party] has made a prima facie showing becomes moot." (Citations and punctuation omitted.) Ellerbee v. State, 215 Ga.App. 312, 315(6), 450 S.E.2d 443 (1994).

"Therefore, since the issue of whether [Pichon] established a prima facie case is moot, we address the issue of the sufficiency of [the City's] explanations for the exercise of the ... peremptory [challenge]." Lewis v. State, 262 Ga. 679, 680(2), 424 S.E.2d 626 (1993). The City was required to explain its striking of juror number three "by articulating a racially-neutral reason related to the particular case. [Cit.]" Id. The City explained that the juror's admitted acquaintance with one of Pichon's potential key witnesses would affect his judgment. The witness referred to, James Patterson, was the prior owner of Pichon's property and was listed as one of his witnesses on the pre-trial order. This was a race-neutral reason, and because the City learned in discovery that the property experienced water damage before Pichon purchased it from Patterson, the reason was related to the case. While the trial court's findings are entitled to great deference, see Asbury v. Ga. World Congress Center, 212 Ga.App. 628(1), 442 S.E.2d 822 (1994), we find its ruling erroneous under the circumstances of this case.

However, "[a]n appellant must show harm as well as error to prevail on appeal; error to be reversible must be harmful. [Cits.]" Tarleton v. Griffin Fed. Savings Bank, 202 Ga.App. 454, 455(2b) 415 S.E.2d 4 (1992). "[W]e find no harm to [the City] in the court's decision, since the record shows that [Patterson] never testified. That being so, any relationship between the juror and [Patterson] was irrelevant." Pyburn v. State, 175 Ga.App. 158, 160(5), 332 S.E.2d 899 (1985).

2. The City contends the trial court erred in instructing the jury on actual damages, lost market value and lost rental value when no evidence of these damages was presented. During the charge conference, the City withdrew its request to charge number 16 which provided that "the measure of damages for continuing an abatable nuisance is a diminution of the yearly rental value of the property damaged during the existence of the nuisance plus any actual damages sustained." The court agreed with the City that no evidence had been presented concerning the diminution of rental value and agreed not to give the charge. However, after the court charged the jury, the City argued that the court had given charge number 16...