John H. Smith, Inc. v. Teveit

• Citation: 175 Ga.App. 565,333 S.E.2d 856
• Decision Date: 09 July 1985
• Docket Number: Nos. 70106,70107,s. 70106
• Parties: JOHN H. SMITH, INC. v. TEVEIT et al. JOHN H. SMITH, INC. v. KRIZKA et al.
• Court: United States Court of Appeals (Georgia)

Page 856

333 S.E.2d 856

175 Ga.App. 565

JOHN H. SMITH, INC. v. TEVEIT et al.

JOHN H. SMITH, INC. v. KRIZKA et al.

Nos. 70106, 70107.

Court of Appeals of Georgia.

Decided July 9, 1985.

Rehearing Denied July 30, 1985.

George G. Chenggis, Chamblee, for appellant.

Hansell L. Smith, Marietta, for appellees.

POPE, Judge.

Plaintiffs/appellees were homeowners in a Cobb County subdivision known as Kings Crossing on June 5, 1981 when their properties were damaged by flooding which occurred during a "brief" rainfall. Plaintiffs brought these actions against defendants Gaskins & Hogan Surveying Company, Inc. and John H. Smith, Inc., alleging that the June 5, 1981 flood was caused by the negligence of each defendant, and seeking actual damages, punitive damages, and attorney fees. Gaskins & Hogan filed a third-party complaint against Cobb County. Smith filed a cross-claim against Gaskins & Hogan, but abandoned the claim prior to the entry of the jury verdict in this case. Following a week-long trial, the jury returned verdicts in favor of plaintiffs and against only defendant Smith for actual damages and punitive damages. This appeal follows the denial of Smith's motions for new trial and j.n.o.v.

1. Smith's first two enumerations of error challenge the sufficiency of the evidence both to support the verdict as to actual damages as well as the verdict as to punitive damages. Specifically, these enumerations cite as error the denial of Smith's motions for directed verdict at the close of plaintiffs' evidence and also at the close of all the evidence.

(a) The focus of Smith's challenge to the award of actual damages is its contention that plaintiffs failed to prove that Smith either owned or developed a certain tract of land adjacent to plaintiffs' properties known as the Lake Latimer Subdivision. The Lake Latimer Subdivision lies at a higher elevation than plaintiffs' properties. As is pertinent here, plaintiffs alleged that the Lake Latimer Subdivision was owned and developed by Smith; that the subject flood and resultant damage to their properties were caused by Smith's negligently allowing construction materials and debris to be carried downstream from the Lake Latimer Subdivision to clog the storm drains located under plaintiffs' driveways and under the street; that Smith also failed to maintain sufficient retention ponds for the water upstream; and that Smith's development of the Lake Latimer Subdivision caused additional water to flow downstream through their properties. In response to Smith's motion for directed verdict at the close of their cases, plaintiffs argued that counsel for Smith had made an admission in his opening statement to the jury that Smith was involved in these cases because it was the developer of the Lake Latimer Subdivision. The trial court reserved ruling on Smith's motion until all the evidence was in. At that time Smith renewed his motion, and the trial court denied it.

The thrust of Smith's argument on appeal is that plaintiffs in the presentation of their cases failed to show that Smith was the party responsible for the alleged negligence in failing to take appropriate measures to keep debris and silt from the Lake Latimer Subdivision from being washed into and clogging the drainage system of Kings Crossing Subdivision, thereby causing the flood which damaged plaintiffs' properties. Smith contends that when the trial court ultimately ruled on its motion for directed verdict after all parties had closed, the court's ruling should have been based upon the evidence that had been presented at trial up to the conclusion of plaintiffs' cases, notwithstanding the fact that on cross-examination during the presentation of its defense Smith admitted that although it had sold a couple of lots, it was the owner and developer of the Lake Latimer Subdivision. Smith "cites no case in support of this position and we have found none. Furthermore, sound reasoning dictates that [its] contention should not be upheld. Even if the trial judge erroneously failed to direct a verdict at the conclusion of the plaintiffs' evidence if thereafter evidence be admitted without objection, which, when considered with evidence previously admitted, makes out a case in favor of the plaintiffs ... it would be substituting procedure and form for substance to say that the case ought to be reversed and a new trial granted. To establish such a rule would manifestly be contrary to the intent of the Civil Practice Act and of the Appellate Practice Act and also contrary to the rule which prevailed in this State with respect to motions for nonsuit under the former practice. This contention is without merit." Young v. Wiggins, 229 Ga. 392, 393, 191 S.E.2d 863 (1972).

Although the holding in Young v. Wiggins, supra, is dispositive of Smith's challenge to the verdicts awarding plaintiffs actual damages in these cases, there are several other reasons worth noting as to why its challenge is without merit. First, our review of the record in this case discloses that although Smith's answers to plaintiffs' complaints denied both ownership and development of the Lake Latimer Subdivision, Smith, in setting forth its defenses in the pretrial order entered in these cases, stated "[t]hat this defendant owns the adjoining tract to the west of plaintiffs' property which is at a higher elevation," i.e., the Lake Latimer Subdivision. In essence, Smith's defense, as set out in the pretrial order, was that any damage suffered by plaintiffs was either due to the nature of plaintiffs' properties in relation to Smith's property, or due to the negligence of others. A pretrial order "limits the issues for trial to those not disposed of by admissions or agreements of counsel. The order, when entered, controls the subsequent course of the action unless modified at the trial to prevent manifest injustice." OCGA § 9-11-16(b). " 'If a claim or issue is omitted from the order, it is waived.' " Ga. Power Co. v. O'Bryant, 169 Ga.App. 491, 495, 313 S.E.2d 709 (1984). The pretrial order in the cases at bar was not modified, nor did Smith move to have it modified. It follows that plaintiffs were not required to introduce proof of Smith's ownership of the Lake Latimer Subdivision. See also Echols v. Bridges, 239 Ga. 25, 27, 235 S.E.2d 535 (1977); McGuire v. Winkler, 167 Ga.App. 104(2), 306 S.E.2d 70 (1983).

Second, as noted earlier, plaintiffs assert that Smith admitted it was the developer of the Lake Latimer Subdivision in Smith's counsel's opening statement to the jury wherein Smith was introduced as such. Although the opening statements were not reported, when this issue was raised during trial Smith did not deny making the admission in his opening remarks. It is clear that plaintiffs relied on this admission in addition to the testimony of their witnesses at trial in order to establish Smith's responsibility for the damage caused by the subject flood. "Statements of counsel during the trial of a case may be regarded as admissions in judicio. [Cits.]" Gregory v. Star Enterprises, 122 Ga.App. 12, 13, 176 S.E.2d 241 (1970). See Chapman v. State, 90 Ga.App. 564(1), 83 S.E.2d 572 (1954). Compare Orkin Exterminating Co. v. Gill, 222 Ga. 760(2), 152 S.E.2d 411 (1966), wherein the in-court statement made by counsel for one of the parties was held not to be a solemn admission in judicio constituting an estoppel where it was not shown that the other party relied upon or was misled by such statement.

Finally, the record shows that during the presentation of plaintiffs' cases, witness Gaskins of defendant Gaskins & Hogan testified on direct examination without objection that Smith was the owner of the Lake Latimer Subdivision. Gaskins & Hogan had done the surveying work for Smith in that subdivision. Gaskins also asserted that Smith could have been responsible for the flooding of plaintiffs' properties. On cross-examination of witness Gaskins, counsel for Smith again referred to Smith as the developer of the Lake Latimer Subdivision. There was also...