Zappa v. Automotive Precision Machinery, Inc., A92A1065

Citation205 Ga.App. 584,423 S.E.2d 286
Decision Date14 September 1992
Docket NumberNo. A92A1065,A92A1065
CourtUnited States Court of Appeals (Georgia)

Thomas M. Stubbs, Jr., Atlanta, for appellants.

Wallace & Moss, Howard P. Wallace, Griffin, for appellees.

SOGNIER, Chief Judge.

Automotive Precision Machinery, Inc. (hereinafter "APM") filed a complaint against Joe M. Zappa, Jr., the proprietor of a business on adjoining property, seeking to enjoin Zappa from trespassing across a common boundary and engaging in "destructive and violent behavior" such as destroying portions of structures on APM's property with a blowtorch and obstructing drains so as to flood APM's property. APM later amended the complaint to seek compensatory damages for injury to real and personal property and punitive damages based on the intentional nature of Zappa's alleged tortious misconduct. Zappa answered, denying he engaged in such behavior. Thereafter, Zappa's wife, Myrtle, filed a pleading denominated "Interpleader" that included proposed counterclaims seeking the determination of the boundary line and damages for what appears to be alleged malicious use of process and loss of consortium. The trial court construed this pleading as a motion to intervene as a defendant and granted it, and the case proceeded to trial on both the main claim and the counterclaims. During the jury trial, James A. Ratteree, Sr. and James A. Ratteree, Jr., the principal shareholders of APM, were added as plaintiffs. The jury returned a verdict awarding $38,000 compensatory damages, $62,000 punitive damages, and $10,000 attorney fees to the plaintiffs. The jury found for the plaintiffs on the property line dispute and made no monetary award to the defendants on their counterclaims. The Zappas appeal.

1. Appellants first contend the trial court erred by denying their motion for summary judgment. This court cannot consider the contention because a denial of summary judgment becomes moot when the court reviews the evidence upon the trial of the case. Brown Realty Assoc. v. Thomas, 193 Ga.App. 847(1), 389 S.E.2d 505 (1989).

2. Contrary to appellants' argument in their second enumeration of error, the doctrine of clean hands, OCGA § 23-1-10, applies only to equitable rights related directly to the cause of action. Sparks v. Sparks, 256 Ga. 788, 789(2), 353 S.E.2d 508 (1987); accord Morton v. Gardner, 242 Ga. 852, 855, 252 S.E.2d 413 (1979). Although appellees' original claim was for injunctive relief, regardless of the boundary dispute the monetary award appealed from was a judgment at law for compensatory and punitive damages flowing from appellant Joe Zappa's intentional and violent misconduct. Accordingly, the equitable principle has no application here. Id.

3. We find no merit in appellants' enumeration of error challenging the trial court's exclusion of evidence regarding the reason alleged by appellants for Joe Zappa's absence during the trial. Appellants did not ask for a continuance and do not argue that Joe's absence was for providential cause. See OCGA § 24-1-2. Rather, Joe elected not to attend and, since he was represented at trial by counsel, who was present, the reason for Joe's absence was irrelevant. Bembry v. Pugh, 186 Ga.App. 144, 366 S.E.2d 812 (1988).

Appellants' argument concerning the admissibility of similar evidence contained in Joe's answers to written interrogatories propounded by Myrtle is controlled adversely to them by this court's holding in Carter v. Tatum, 134 Ga.App. 345, 346-348(1), 212 S.E.2d 439 (1975).

4. Appellants maintain the trial court's ruling permitting appellees to testify that appellant Joe Zappa had twice been held in contempt during the discovery phase of the litigation amounted to an expression of opinion prohibited by OCGA § 9-10-7. We cannot consider this contention because the...

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13 cases
  • Sharpe v. Department of Transp., S97G1399.
    • United States
    • Supreme Court of Georgia
    • October 5, 1998
    ...witness" rule or the prohibition on a trial court's improper summary of a witness' testimony. Zappa v. Automotive Precision Machinery, 205 Ga. App. 584, 585(4), 423 S.E.2d 286 I am authorized to state that Presiding Justice FLETCHER joins in this special concurrence. -------- Notes: 1. Cons......
  • Rosenfeld v. Rosenfeld, A07A0959.
    • United States
    • United States Court of Appeals (Georgia)
    • May 24, 2007
    ...450 S.E.2d 814 (1994). 11. Gibbs v. Dodson, 229 Ga.App. 64, 67(1), 492 S.E.2d 923 (1997). 12. Zappa v. Automotive Precision Machinery, 205 Ga.App. 584, 585(2), 423 S.E.2d 286 (1992). 13. Park v. Fortune Partner, Inc., 279 Ga.App. 268, 273-274(6), 630 S.E.2d 871 (2006). 14. Claire v. Rue de ......
  • Gibbs v. Dodson
    • United States
    • United States Court of Appeals (Georgia)
    • October 29, 1997
    ...of clean hands has no application in a suit for damages for breach of a fiduciary relationship. Zappa v. Automotive, etc., Machinery, 205 Ga.App. 584(2), 423 S.E.2d 286. It is for jury resolution whether this fiduciary relation was breached by the acts or omissions of Dodson. The trial cour......
  • City of Dalton v. Smith, A93A1430
    • United States
    • United States Court of Appeals (Georgia)
    • October 28, 1993
    ...issues properly raised before the trial court will be considered." (Citations and punctuation omitted.) Zappa v. Auto. Precision Machinery, 205 Ga.App. 584, 585(4), 423 S.E.2d 286 (1992); Ramey v. Leisure, Ltd., 205 Ga.App. 128, 133(3), 421 S.E.2d 555 (1992). "Where an entirely different ob......
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