Glenridge Unit Owners Ass'n, Inc. v. Felton

• Decision Date: 15 July 1987
• Docket Number: Nos. 74332,74333 and 74334,s. 74332
• Citation: 183 Ga.App. 858,360 S.E.2d 418
• Parties: GLENRIDGE UNIT OWNERS ASSOCIATION, INC. v. FELTON. FELTON v. GLENRIDGE UNIT OWNERS ASSOCIATION, INC.
• Court: Georgia Court of Appeals

Page 418

360 S.E.2d 418

183 Ga.App. 858

GLENRIDGE UNIT OWNERS ASSOCIATION, INC. v. FELTON.

FELTON v. GLENRIDGE UNIT OWNERS ASSOCIATION, INC.

Nos. 74332, 74333 and 74334.

Court of Appeals of Georgia.

July 15, 1987.

Philip S. Downer, Jeffrey A. Hurley, James B. Rhoads, Amy Griffith Dever, Atlanta, for appellant.

Glenville Haldi, Atlanta, for appellee.

BEASLEY, Judge.

These appeals and cross-appeal involve a dispute between the homeowners' association, Glenridge Unit Owners' Association, Inc., and a unit owner of a condominium complex. Ms. Felton was the occupant of the unit and the daughter of the title holder of the unit.

Based on a jury verdict, plaintiff association was awarded a judgment for past due association fees and attorney fees. Defendant Felton was awarded, on her counterclaim, contract damages and tort damages as well as attorney fees and punitive damages.

1. Both parties filed motions for judgment notwithstanding the verdict, which were both ruled on by order of August 21, 1986. Prior to that ruling, however, on May 30, 1986, Glenridge had filed its notice of appeal in our Case No. 74334. After that ruling, on August 25, 1986, Glenridge filed its notice of appeal in our Case No. 74332. Having done so, the appeal in the first case is moot and is dismissed. OCGA § 5-6-48(b)(3); see Gillen v. Bostick, 234 Ga. 308, 311(1), 215 S.E.2d 676 (1975).

Case No. 74332

2. At the close of defendant Felton's case, and at the close of all of the evidence, including extensive rebuttal and surrebuttal evidence, Glenridge moved for directed verdict concerning defendant's counterclaim and then a motion for judgment notwithstanding the verdict as to the counterclaim. Glenridge's enumerations one and two claim that the denial of these motions was error.

The grounds asserted in the motion for judgment n.o.v. and on appeal will not be considered because they were not asserted in support of the motions for directed verdict as required by OCGA § 9-11-50(b). Battle v. Yancey Bros., 157 Ga.App. 277(1a), 277 S.E.2d 280 (1981).

The grounds argued on appeal with regard to the motion for directed verdict succumb to a like fate. Grabowski v. Radiology Assocs., 181 Ga.App. 298, 299(2), 352 S.E.2d 185 (1986); Fidelity & Cas. Ins. Co. v. Massey, 162 Ga.App. 249, 250(1), 291 S.E.2d 97 (1982).

3. In its enumerations three, four, and five, Glenridge appeals from the denial of its motions for new trial on the general grounds, OCGA §§ 5-5-20 & 5-5-21, and upon the ground that the court excluded material evidence contrary to OCGA § 5-5-22.

As to the general grounds, we have reviewed the record and, as to the counterclaim of Felton, both on the breach of contract for failure to repair and on the nuisance/negligence claim concerning the drainage of water, the evidence is sufficient to support the verdict. "The grant or denial of a motion for new trial ... is a matter within the sound discretion of the trial court and will not be disturbed ... if there is 'any evidence' to authorize it." Associated Software, etc. v. Wysocki, 177 Ga.App. 135, 137, 338 S.E.2d 679 (1985); Commercial Artsvcs. v. Buchtal Corp., 180 Ga.App. 305, 306, 348 S.E.2d 768 (1986); Green v. Dillard, 176 Ga.App. 574, 575(1), 337 S.E.2d 55 (1985), overruled on other grounds, Kres v. Winn-Dixie Stores, 183 Ga.App. 854, 360 S.E.2d 415 (1987).

The evidence ground involved Exhibit # 8, two documents which Glenridge asserts should have been admitted. The first was a check in the amount of $5,556.37 to Felton in 1982 from the property management company of Glenridge for water damage in her unit. The other was a handwritten listing of repair costs allegedly included in this payment.

In a motion in limine just before trial, Felton objected that the evidence was not relevant and improperly injected insurance into the case. Glenridge contended it showed that Felton had already been partially paid for the damages she was claiming and that she was accepting the benefits of, but refusing to pay, her association fees. The court had granted Glenridge's motion for summary judgment as to her liability for the dues. The court tentatively ruled the evidence inadmissible but left open later reconsideration.

In the course of the cross-examination of Felton, counsel for Glenridge attempted to question her concerning the payment she had received. At that point, a discussion was held off the record between counsel and the court. Counsel for Glenridge did then question Felton about the repairs done to her unit in 1982 and where they were located. She had no specific recall concerning these repairs, although she did acknowledge receipt of payment and stated that it was "about $4,000."

When the check and handwritten notes were again proferred, Felton objected on hearsay grounds. The documents were hearsay and were not properly authenticated. OCGA § 24-3-1; Rodgers v. Cumberland Volkswagen, 167 Ga.App. 826, 828, 307 S.E.2d 721 (1983). Thus, the exclusion of these documents was not error.

4. Glenridge's enumerations six through eight, ten, fourteen and fifteen allege error in failures of the court to charge various theories of law. Glenridge's requests to charge, however, contain none which give rise to any of the enumerations except number six, and after the charge was given, no objections to these failures to charge were made. As to these, there is nothing to review. OCGA § 5-5-24; AAA Van Svcs. v. Willis, 180 Ga.App. 18, 19 (3), 348 S.E.2d 475 (1986); Eiberger v. West, 165 Ga.App. 559, 560 (2), 301 S.E.2d 914 (1983).

Enumeration six claims erroneous instruction as to issues of contract which Glenridge claims are not applicable to the case. We are unable to understand the claim of error since Glenridge requested that the trial court instruct on contract principles and the court did so. There is thus no error.

5. Glenridge complains in enumeration nine of the court's giving of Felton's Requests to Charge Nos. 2 and 4, which dealt with one's obligation not to cause rainwater to flow other than naturally over the property of another. These two charges were objected to after the charge was given, only on the ground that there was no evidence of the alteration of flow by the Association. Additional grounds are argued on appeal and will not be considered. OCGA § 5-5-24; AAA Van Svcs., supra; Eiberger, supra.

There was evidence of alterations made in the property by the management company, some in an apparent effort to correct the drainage problems. There was evidence from Felton and her witnesses, and from one of Glenridge's experts, that ponding around the foundation of the unit could cause damage to the foundation. This evidence authorized the charge.

6. In enumerations eleven, twelve, and thirteen, Glenridge complains of the trial court's failure to give its written Requests to Charge Nos. 4, No. 7, and No. 12. The arguments made in the brief and the objections made at trial underline the need for clarity in making objections and in arguing, whether the objections concern the refusal to give a requested charge, or claimed error in the charge given, or an omission to charge although not requested. OCGA § 5-5-24; Christiansen v. Robertson, 237 Ga. 711, 229 S.E.2d 472 (1976) (adequacy of objection to erroneous charge and an omission to charge, although no request made); Continental Cas. Co. v. Union Camp Corp., 230 Ga. 8, 195 S.E.2d 417 (1973) (refusal to give written request to charge); Kres v. Winn-Dixie Stores, supra. Here, there was a written request to charge No. 12 below; that charge was given as requested. Plaintiff's Request No. 2 was not given, but that failure is not enumerated as error and is deemed abandoned. Clark v. State, 180 Ga.App. 280, 282(2), 348 S.E.2d 916 (1986); MacDonald v. MacDonald, 156 Ga.App. 565, 566(1)(a), 275 S.E.2d 142 (1980). The brief fails to enlighten as to what it is Glenridge intended to argue here.

Glenridge's Request No. 4, which was not given and was properly reserved, enumerated, and argued, was: "In order to recover on a claim of negligence, Defendant [Felton] also must show that any injury or loss to her unit was not the result of her own actions or neglect, in whole or in part." [Emphasis in original.] Felton objected during the charge conference on the ground that it was an incorrect statement of the law in that it improperly placed the burden on a party to disprove his own negligence. We agree. While comparative negligence is available as an affirmative defense in Georgia, see OCGA § 51-11-7, the burden of proving it remains with the party relying upon it and not upon the party making the original negligence claim to disprove it. OCGA § 24-4-1; Williams v. Southern R. Co., 126 Ga. 710, 711, 55 S.E. 948 (1906); Falkner v. Behr, 75 Ga. 671, 674 (4) (1884).

"In order for a refusal to charge to be error, the requests must be entirely correct and accurate, and adjusted to the pleadings, law, and evidence, and not otherwise covered in the general charge. [Cit.]" Medoc Corp. v. Keel, 166 Ga.App. 615, 618(2), 305 S.E.2d 134 (1983); see Ga. Kraft Co. v. Laborers' Intl. Union, 170 Ga.App. 581, 585, 317 S.E.2d 602 (1984); Gibbs v. First Fed. Savings etc. Assn., 161 Ga.App. 27 (1), 289 S.E.2d 1 (1982).

Glenridge's Request to Charge No. 7 dealt with the statute of limitation for suits against developers for construction defects, as provided in OCGA § 9-3-30. Felton objected during the charge conference, and Glenridge did except to the court's refusal to give it. The omission of the charge was not error. Failure to plead the affirmative defense of the statute of limitations results in its being waived. OCGA § 9-11-8(c); Owens v. Owens, 248 Ga. 720, 722(3), 286 S.E.2d 25 (1982). It had not been pled.

7. Lastly, Glenridge complains of the trial court's failure to direct a verdict for it on the issue of attorney fees on the ground that there was insufficient evidence of the amount of the fees claimed and the reasonable value of the services...