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ZAPPA et al. v. AUTOMOTIVE PRECISION MACHINERY, INC. et al.
A92A1065.
SOGNIER, Chief Judge.
Action for damages. Fulton Superior Court. Before Judge Alverson.
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 counter-claims. 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 SE2d 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 SE2d 508) (1987); accord Morton v. Gardner, 242 Ga. 852, 855 (252 SE2d 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 SE2d 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 SE2d 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 transcript reveals that appellants' objection to this testimony was made on other grounds, and " '(o)n appeal only issues properly raised before the trial court will be considered. (Cits.)' [Cit.]" Venture Design, Ltd. v. Original Appalachian Artworks, 197 Ga. App. 432, 434 (3) (398 SE2d 781) (1990).
6. We have reviewed appellants' remaining enumerations of error and find them utterly without merit.
Wallace & Moss, Howard P. Wallace, for appellees.
Thomas M. Stubbs, Jr., for appellants.
DECIDED SEPTEMBER 14, 1992 -- RECONSIDERATION DENIED SEPTEMBER 28, 1992.
Thursday May 21 09:15 EDT


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