Von Hoff v. Carmichael

• Decision Date: 01 July 1992
• Docket Number: No. A92A0572,A92A0572
• Citation: Von Hoff v. Carmichael, 420 S.E.2d 643, 204 Ga.App. 760 (Ga. App. 1992)
• Parties: VON HOFF v. CARMICHAEL.
• Court: Georgia Court of Appeals

Page 643

420 S.E.2d 643

204 Ga.App. 760

VON HOFF v.CARMICHAEL.

No. A92A0572.

Court of Appeals of Georgia.

July 1, 1992.

James S. Altman, Atlanta, for appellant.

Rosenzweig, Kam, Jones & MacNabb, Douglas L. Dreyer, Newnan, for appellee.

POPE, Judge.

DefendantChrista Von Hoff employed plaintiffCharles Carmichael as a plumber for the expansion and remodeling of her house.Pursuant to the terms of the oral agreement between the parties, defendant was to pay plaintiff on an hourly basis for labor and for the costs of materials.After making several partial payments to plaintiff, she wrote him a check for what was to be final payment.Several days later, the county building inspector rejected several items of plaintiff's work and the evidence presented at trial shows plaintiff returned to correct those items and the plumbing was approved.Apparently before the building inspection was made, however, defendant placed a stop payment order on the check written to plaintiff.Although plaintiff corrected the items rejected by the inspector, defendant refused to remit the remaining amount plaintiff claimed was due under the contract.Plaintiff brought this action and a jury verdict was returned in his favor.Judgment was awarded in the amount of $3,652.91 plus pre-judgment interest and $7,000 punitive damages.Defendant appeals.

1.Several of defendant's enumerations of error relate to alleged errors in the charge to the jury.In response to the trial court's inquiry about objections at the conclusion of the instructions to the jury, however, the defendant's counsel responded: "I have no objections, Your Honor.I thought the charge was proper and fair."Defendant waived her objections to the jury instructions by this specific acquiescence to the charges.A party may not on appeal "complain of a charge specifically acquiesced in by the counsel representing [her] on the trial."Irvin v. Oliver, 223 Ga. 193, 196(2), 154 S.E.2d 217(1967).AccordBell v. Samaritano, 196 Ga.App 612(2), 396 S.E.2d 520(1990), aff'd, 260 Ga. 768, 400 S.E.2d 13(1991).

2.Among the claims made in plaintiff's complaint was that defendant fraudulently induced the plaintiff to perform the work by representing she would pay him pursuant to their oral agreement.Defendant argues the trial court erred in failing to grant her motion for new trial because no evidence was presented to show plaintiff justifiably relied upon the allegedly fraudulent representations.The evidence was certainly sufficient to support the conclusion that plaintiff performed the work in reliance upon defendant's promise to pay him for his services and we find no merit in this argument.

3.A full 30 days after the judgment was entered defendant filed a motion for new trial asserting, inter alia, that the trial judge should have recused himself from the case.She also filed a motion to recuse the trial judge from hearing the motion for new trial.In support of the motion to recuse, defendant filed her affidavit stating that on the second day of the three-day trial, defendant overheard a conversation between the judge and the plaintiff which indicated the plaintiff had performed plumbing work for the judge.According to the affidavit, "The Plaintiff asked the judge if he was pleased with the work he had done.The Judge replied with words to the effect: 'don't overcharge me.' "Defendant argues the trial court erred in ruling the motion to recuse was untimely and legally insufficient.

According to Rule 25.1 of the Uniform State Court Rules, all motions to recuse must be filed in writing before trial and "not later than 5 days after the affiant first learned of the alleged grounds for disqualification ... unless good cause be shown for failure to meet such time requirements."In this case, the information relied upon by the defendant was not discovered until after...