Swicegood v. Heardmont Nursing Home, Inc.

• Decision Date: 03 June 1987
• Docket Number: No. 74001,74001
• Citation: 359 S.E.2d 3,183 Ga.App. 319
• Parties: SWICEGOOD v. HEARDMONT NURSING HOME, INC. et al.
• Court: Georgia Court of Appeals

Page 3

359 S.E.2d 3

183 Ga.App. 319

SWICEGOOD v. HEARDMONT NURSING HOME, INC. et al.

No. 74001.

Court of Appeals of Georgia.

June 3, 1987.

Rehearing Denied June 17, 1987.

R. Chris Phelps and Robert W. Lavender, Elberton, for appellant.

E. Freeman Leverett, Elberton, for appellees.

McMURRAY, Presiding Judge.

Appellant Larry W. Swicegood and appellee Heardmont Nursing Home, Inc. entered into a lease agreement of a nursing home facility on June 30, 1976, for a period of five years. On June 15, 1981, appellee filed a complaint against Swicegood seeking injunctive relief against the removal or other disposal of certain records from the leased premises prior to inspection thereof, money allegedly owed for additional leased bed spaces and, by subsequent amendment, an accounting. Swicegood responded, denying the essential allegations and filed a counterclaim asking for attorney fees, the return of certain personal property and damages for conversion of that property. Swicegood also filed a third-party complaint against Charles C. Mann, d/b/a Mann's Pharmacy, who was also the President of Heardmont Nursing Home, Inc. During discovery proceedings a general audit was performed and Swicegood made a demand for trial by jury. On July 21, 1986, the trial court granted partial summary judgment against Swicegood on several issues, including the money allegedly owed for additional bed spaces and specified personal property determined to be fixtures or replacement items not recoverable under the lease. Trial by jury was denied and one count of the counterclaim was stricken. These rulings were enumerated as error on an appeal initially filed in the Supreme Court, which was transferred to this court without opinion for disposition. Held:

None of the grounds urged for reversal can be sustained in this court for several reasons. First, the issues raised by the pleadings were equitable in nature. See Grant v. Grant, 202 Ga. 40, 41(3(a)) 41 S.E.2d 534 (1947). There is no constitutional or statutory right to a trial by jury in equity cases. OCGA § 9-7-17; Hanson v. First State Bank, 254 Ga. 235, 327 S.E.2d 730 (1985). Second, questions concerning the auditor's report, which deals with the disputed items of fixtures and other issues, remains to be considered by a jury empaneled by the trial court on its own motion to make findings of fact. Third, the transfer of the appeal to this court by the Supreme Court is tantamount to a ruling eliminating and resolving the equitable and injunctive issues which lie only within the jurisdiction of that court to determine. Cf. Johnston v. Atlanta Humane Society, 173 Ga.App. 416, 418, 326 S.E.2d 585 (1985); Cassells v. Bradlee Mgt. Svcs., 161 Ga.App. 325, 326(1), 291 S.E.2d 48 (1982). See also Johnson v. Smith, 251 Ga. 1(1), 302 S.E.2d 542 (1983). Finally, appellant asserts there was no basis for the issuance of the...