Hand v. Pettitt

• Decision Date: 24 October 2002
• Docket Number: No. A02A2161.,A02A2161.
• Citation: 258 Ga. App. 170,573 S.E.2d 421
• Parties: HAND v. PETTITT.
• Court: Georgia Court of Appeals

573 S.E.2d 421

258 Ga. App. 170

HAND v. PETTITT.

No. A02A2161.

Court of Appeals of Georgia.

October 24, 2002.

B. Morris Martin, Jasper, Nancee E. Tomlinson, for appellant.

Weaver & Weaver, George W. Weaver, Jasper, Jeffrey L. Floyd, for appellee. ELDRIDGE, Judge.

Herbert Lawrence Hand sued for battery and damages, both general and punitive, and for an injunction against trespass by Phillip Harold Pettitt for use of a road across Hand's land, which was shown as an easement on a subdivision plat of the land; Pettitt answered and counterclaimed for false arrest and false imprisonment by locking him in the property where there was a public easement on the road. The trial court granted Pettitt's motion for a directed verdict that all of the roads shown on the subdivision plat were public roads accessible to all subdivision landowners. On March 22, 2002, after a jury trial on May 29 through June 1, 2001, the trial court returned a judgment for Pettitt in the amount of $100. The judgment found that Talking Rock Falls Road, N.E., a subdivision road, was a public road, because the subdivider sold lots according to the recorded plat which showed the road and created an express easement. Finding no error, we affirm.

1. Hand contends that the trial court abused its discretion in denying his motion in limine regarding his prior and subsequent difficulties with Pettitt and with others regarding use of the road. We find that there was no abuse of discretion and that evidence of the prior and subsequent difficulties with Pettitt and others over use of the road was relevant and material to issues in this case.

On August 29, 1999, Hand found that Pettitt had gone through a gate on Hand's land and that Pettitt was on the construction site of Hoffstedter, a neighbor at the end of the road, and accused Pettitt of trespassing, ordering him off the property. An altercation resulted between them, and Hand went back through and closed the gate, blocking the road. Pettitt ordered Hand to open the gate, and Hand refused, telling him to get out of the truck and open it himself. Pettitt testified that he was afraid of Hand because Hand had a reputation for violence; therefore, Pettitt drove through the closed gate, which gate flew open and knocked Hand into the culvert. This was the basis of Hand's battery action.

(a) At opening statements at the jury trial, Pettitt's counsel described Hand's prior and subsequent difficulties with Pettitt and with others regarding the use of the road; after opening statements, Hand's counsel moved for a motion in limine to exclude evidence of such prior and subsequent difficulties with Pettitt and also as to other people regarding the road. The motion sought a pre-trial ruling absolutely excluding such evidence rather than to temporarily exclude the evidence until a proper showing could be made as to relevance and materiality outside the presence of the jury. The jury had already heard counsel outline what he expected to show in this regard as to this expected evidence and how it constituted part of his defense and counterclaim; therefore, any harm had already occurred by the jury hearing the opening statement. Thus, Hand was too late in making a motion in limine to prevent the jury from being prejudiced by the injection of such information before them, and at most, a motion in limine would only have served to limit damage from such information being further presented to the jury on tender of such evidence. However, Hand brought the motion in limine for a pre-trial determination of the legal issue of admissibility under any theory of relevance.

The grant of a motion in limine excluding evidence is a judicial power which must be exercised with great care, because it seeks to preclude by pre-trial evidentiary ruling on the admission of evidence without the trial court having any evidentiary foundation for the ruling in the context of the trial. Homebuilders Assn. of Ga. v. Morris, 238 Ga.App. 194, 195, 518 S.E.2d 194 (1999). Where the exclusion of evidence is required as a matter of law, the trial court does not abuse its discretion in granting a motion in limine. Id. at 197, 518 S.E.2d 194; American Petroleum Products v. Mom & Pop Stores, 231 Ga.App. 1, 7(3), 497 S.E.2d 616 (1998). Thus, "[b]y its very nature, the grant of a motion in limine excluding evidence suggests that there is no circumstance under which the evidence under scrutiny is likely to be admissible at trial. In light of that absolute, the grant of a motion in limine excluding evidence is a judicial power which must be exercised with great care." (Citation omitted.) Andrews v. Wilbanks, 265 Ga. 555, 556, 458 S.E.2d 817 (1995).

A motion in limine is a pretrial motion which may be used in two ways: 1) The movant seeks, not a final ruling on the admissibility of evidence, but only to prevent the mention by anyone, during trial, of a certain item of evidence or area of inquiry until its admissibility can be determined during the course of the trial outside the presence of the jury. 2) The movant seeks a ruling on the admissibility of evidence prior to trial. The trial court has an absolute right to refuse to decide the admissibility of evidence, allegedly violative of some ordinary rule of evidence, prior to trial. If, however, the trial court decides to rule on the admissibility of evidence prior to trial, the court's determination of [the] admissibility is similar "to a preliminary ruling on evidence at a pretrial conference" and it "controls the subsequent course of action, unless modified at trial to prevent manifest injustice." Harley-Davidson Motor Co. v. Daniel, 244 Ga. 284, 285-6, 260 S.E.2d 20 (1979).

(Citations, punctuation and footnote omitted; emphasis in original.) State v. Johnston, 249 Ga. 413, 415(3), 291 S.E.2d 543 (1982); see also Andrews v. Wilbanks, supra at 556, 458 S.E.2d 817. Where the evidence may be relevant and material if certain foundational facts are proven, the trial court does not abuse its discretion excluding such evidence until the proper foundation has been laid before the court to make such evidence relevant and create an issue of proof. Id.; Jakobsen v. Colonial Pipeline Co., 237 Ga.App. 441, 446(3), 514 S.E.2d 851 (1999) (trial court can modify a grant of a motion in limine); Dept. of Transp. v. Wallace Enterprises, 234 Ga.App. 1, 4(6), 505 S.E.2d 549 (1998) (denied motion in limine). However, when admission of certain evidence is a matter of law instead of a mixed question of law and fact, the trial court does not abuse its discretion in granting a motion in limine where there are no circumstances under which disputed evidence is admissible. Andrews v. Wilbanks, supra at 556, 458 S.E.2d 817.

In this case, the motion was not to exclude the evidence until a foundation could be laid out of the presence of the jury during the trial of the case, because the motion was made following the opening statement of Pettitt in which the issue of such proposed evidence was injected before the jury already. Instead, the motion to exclude this evidence by motion in limine sought a legal determination that the evidence was not admissible under any circumstances. However, under certain circumstances, the disputed evidence as to Hand's course of conduct, habit, intent, and difficulty regarding Pettitt or others in similar circumstances to this case, as to Pettitt's intent, attitude, and state of mind, as impeachment of Hand, and as to the issue of easement for the road were admissible. "The Georgia rule favors the admission of any relevant evidence, no matter how slight its probative value; evidence of doubtful relevance or competency should be admitted and its weight left to the jury." (Citation omitted.) Johnson v. State, 236 Ga.App. 61, 65(3)(b), 510 S.E.2d 918 (1999); accord Woodall v. Rivermont Apts. Ltd. Partnership, 239 Ga.App. 36, 520 S.E.2d 741 (1999). Thus, where disputed issues of fact are involved, the trial court does not abuse its discretion in denying the motion in limine. Woodall v. Rivermont Apts. Ltd. Partnership, supra at 36, 520 S.E.2d 741. The trial court has an absolute right to refuse to decide the admissibility of evidence, allegedly violating some ordinary rule of evidence, prior to trial, because the evidence has not been tendered in the context of evidence already admitted, which may make the evidence admissible for certain purposes. Thaxton v. Norfolk Southern R. Co., 239 Ga.App. 18, 25-26(3), 520 S.E.2d 735 (1999) (trial court reserved ruling on evidence); Orr v. CSX Transp., 233 Ga. App. 530, 531(3), 505 S.E.2d 45 (1998) (same); Locke v. Vonalt, 189 Ga.App. 783, 785-786(2), 377 S.E.2d 696 (1989) (same); Morris v. Southern Bell Tel. &c. Co., 180 Ga.App. 145, 348 S.E.2d 573 (1986) (trial court reserved ruling on the evidence until offered during trial).

(b) Where the disputed evidence was admissible for any reason, the trial court did not abuse its discretion in admitting such evidence. Johnson v. State, supra at 65, 510 S.E.2d 918.

(i) Similar transaction evidence. As a general rule in all negligence actions, evidence of similar acts or omissions is not admissible. However,

if proof of a similar accident or similar method of acting tends to prove some fact of the case on trial, the testimony falls within an exception—such as to show knowledge of the defect or causation or to rebut a contention that it was impossible for the accident to happen in the manner claimed. Independent testimony of other transactions has also been admitted to show the prior existence of a dangerous condition or hazardous situation.

(Citations and punctuation omitted.) Gunthorpe v. Daniels, 150 Ga.App. 113-114(1), 257 S.E.2d 199 (1979). "Evidence of similar transactions is admissible to show [tortious] intent or motives.... However, in passing on the admissibility of similar transaction evidence, the trial court must determine whether the act on another and different occasion...