Henderson v. Glen Oak, Inc.

Decision Date23 May 1986
Docket NumberNo. 72174,72174
Citation179 Ga.App. 380,346 S.E.2d 842
CourtGeorgia Court of Appeals

James E. Butler, Jr., Columbus, Joseph E. Cheeley, Jr., Robert D. Cheeley, Buford, Nickolas P. Chilivis, Atlanta, for appellant.

Anthony O.L. Powell, Lawrenceville, Joseph B. Haynes, Gary J. Toman, Atlanta, for appellee.


Robert Henderson brought this dispossessory action seeking possession of leased premises, past due rent, and damages for fraud against Glen Oak, Inc. Glen Oak filed an answer and counterclaim seeking equitable and injunctive relief and damages for breach of contract, malicious interference with business, and malicious interference with quiet enjoyment of its lease with Henderson. The jury returned a verdict against Henderson on his claims and in favor of Glen Oak, awarding it damages on each count of its counterclaim as well as punitive damages. The trial court entered judgment on the jury's verdict, denied Henderson's motions for new trial and for judgment notwithstanding the verdict and granted the injunctive relief sought by Glen Oak. Henderson appeals.

The parties to this appeal entered into both a lease contract and a contract for the purchase and sale of appellant's sod business. Under the terms of the lease contract, appellee agreed to pay appellant yearly rent based on appellee's production of sod on the leased property in exchange for appellee's right to harvest and sell the sod and to operate a commercial sod and nursery business on a portion of the leased property. In connection with the sale of appellant's sod business, appellee purchased appellant's good will and customer list. Additionally, the contract for the sale of appellant's business included a provision whereby appellant agreed not to compete with appellee's operation of the sod business. Shortly after the commencement of the lease, appellant notified appellee that the lease was in default and demanded possession of the premises. As a result of this demand and other actions by appellant, appellee filed a declaratory judgment action in the Superior Court of Gwinnett County seeking a declaration, inter alia, of the amount of rent payment, the exact location of the commercial area, and of the status of the lease in terms of the alleged default. Appellee also sought an injunction to prevent appellant from harassing appellee and its employees. The superior court's order granting appellee the relief requested was affirmed by this court in an unpublished order, Henderson v. Glen Oak, case nos. 68211, 68212 (Oct. 16, 1984). The parties' disagreement about the amount of rent due, the location of the commercial area, and other matters continued, resulting in appellant's institution of the dispossessory action upon which this appeal is based.

1. Appellant first contends the judgment against him is void because the senior judge who presided at trial was not authorized to do so. In Shoemake v. Woodland Equities, 252 Ga. 389, 393-394(3), 313 S.E.2d 689 (1984), the Supreme Court held that under OCGA § 15-5-5(2) a district administrative judge may obtain the services of a senior judge from outside the administrative district because superior court judges, including senior judges, have jurisdiction to act in any circuit other than their own when the resident judge cannot serve. Therefore, the assignment of the senior judge from outside the administrative district in the instant case was valid under the provisions of OCGA § 15-5-5(2). Further, we find no merit in appellant's argument that the assignment was void for failure to comply with OCGA §§ 47-8-64 and 15-1-9.1, which are not applicable to this case. Next, the record does not support appellant's argument that the senior judge acted outside the time period of his assignment. Finally, appellant's argument that the trial court lacked authority to remove the case from the state court to the superior court is without merit because the record reveals that appellant's counsel expressly stipulated that the state court claims be transferred to the superior court and that the case be tried in the superior court.

2. Appellant contends the trial court erred by refusing to allow him to cross-examine Luther Smith, and by allowing appellee to cross-examine Smith. Smith was a former employee of appellant and was employed by appellee at the time of trial. During the presentation of appellant's case, appellant's attorney called Smith for cross-examination. On objection by appellee, the trial court ruled that appellant was not entitled to cross-examine Smith because there had been no showing that Smith was a hostile witness. Under the provisions of OCGA § 24-9-81 appellant had a right to cross-examine Smith as an agent of the opposite party. Thompson v. Central of Ga. R. Co., 102 Ga.App. 5, 6(1), 115 S.E.2d 471 (1960). However, the transcript reveals that, in effect, appellant did cross-examine Smith without objection for almost his entire examination of that witness and that Smith's testimony was generally favorable to appellant. Further, the information sought by appellant from Smith, regarding the dates and location of sod harvest, was cumulative as appellant was permitted to thoroughly cross-examine five other employees of appellee on the same issues. Thus, the error was harmless. See Atlanta Americana, etc., Corp. v. Sika, etc., Corp., 117 Ga.App. 707, 710-712(4), 161 S.E.2d 342 (1968). Appellant's contention that the trial court erred by allowing appellee to cross-examine Smith was not raised at trial and therefore will not be considered on appeal. In the Matter of J.S.S., 175 Ga.App. 361, 367(5), 333 S.E.2d 417 (1985).

3. Appellant contends the trial court erred by failing to charge the jury on his claim of fraud which was based on alleged misrepresentations by appellee as to the cause of the damage sustained by sod acreage following the winter of 1983-1984. At trial, appellant admitted that he never relied on the alleged misrepresentations because he never believed them to be true. Thus, appellant failed to prove one essential element (namely, reliance) required to sustain his claim of fraud, see A-Larms v. Alarms Device Mfg., 165 Ga.App. 382, 385(1), 300 S.E.2d 311 (1983), so that the issue of fraud was not supported by the evidence. Accordingly, the trial court did not err by failing to charge the jury on that issue. Grimes v. Gano, 111 Ga.App. 543, 545(1), 142 S.E.2d 413 (1965).

4. Appellant contends numerous errors in the trial court's charge to the jury which, although not objected to at trial, appellant argues constituted harmful error. In general, failure to object to the trial court's instruction to the jury before the jury returns its verdict constitutes a waiver of the right to raise the issue on appeal. OCGA § 5-5-24(a); Nelson v. Miller, 169 Ga.App. 403, 404, 312 S.E.2d 867 (1984). Nevertheless, appellant argues that the alleged errors in the trial court's instruction to the jury come within the...

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12 cases
  • Georgia Dept. of Transp. v. Cannady
    • United States
    • Georgia Court of Appeals
    • February 13, 1998
    ...trial; failure to make the specific objection at trial acted as a waiver of such grounds for appellate review. Henderson v. Glen Oak, Inc., 179 Ga.App. 380, 346 S.E.2d 842 (1986), aff'd, 256 Ga. 619, 351 S.E.2d 640 (1987); see also Pierce v. Pierce, 241 Ga. 96, 243 S.E.2d 46 (1978); Jackson......
  • Waller v. Rymer
    • United States
    • Georgia Court of Appeals
    • October 6, 2008
    ...will result from the alleged error." (Citations omitted.) Nelson, 169 Ga.App. at 405, 312 S.E.2d 867. See Henderson v. Glen Oak, Inc., 179 Ga.App. 380, 382(4), 346 S.E.2d 842 (1986) ("The allegedly erroneous instruction must raise a question as to whether appellant has been deprived of a fa......
  • CSX Transp., Inc. v. Levant
    • United States
    • Georgia Court of Appeals
    • July 16, 1991
    ...not require the party calling the witness for cross-examination to establish that the witness is hostile. See Henderson v. Glen Oak, Inc., 179 Ga.App. 380(2), 346 S.E.2d 842 (1986). All of the witnesses called by plaintiff for cross-examination were employees of the railroad and "subject to......
  • Poe v. Sears, Roebuck & Co., Inc.
    • United States
    • U.S. District Court — Northern District of Georgia
    • April 22, 1998
    ...showed the battery to Burt believing it was a new battery. Defendant argues the case at bar is similar to Henderson v. Glen Oak, Inc., 179 Ga.App. 380, 346 S.E.2d 842 (1986). In Henderson, the Georgia Court of Appeals held the trial court did not err in failing to give a charge on the eleme......
  • Request a trial to view additional results

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