Hart v. Walker.

FIFTH DIVISION
MCFADDEN, P. J.,
RAY and RICKMAN, JJ.

NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
http://www.gaappeals.us/rules

October 10, 2018

In the Court of Appeals of Georgia
A18A1320. HART v. WALKER.

RAY, Judge.

Kenneth Hart filed a complaint against his former landlord, Valeria Walker,

seeking money damages for wrongful eviction, conversion, and trespass. The trial

court granted partial summary judgment to Hart on the issue of Walker’s liability and

scheduled the matter for a subsequent evidentiary hearing on the sole issue of

damages. After the evidentiary hearing, the trial court declined to award any damages,

finding that Hart had not met his burden of proof in providing evidence of his actual

and compensatory damages. Hart appeals, contending that the trial court erred (1) in

finding that he did not meet his burden of providing evidence of his damages and (2)

in failing to rule on his request for punitive damages. For the following reasons, we

affirm.
 “While we apply a de novo standard of review to any questions of law decided

by the trial court, factual findings made after a bench trial shall not be set aside unless

clearly erroneous, and due regard shall be given to the opportunity of the trial court

to judge the credibility of witnesses.” (Citations and punctuation omitted.)

Washington v. Harrison, 299 Ga. App. 335, 336 (682 SE2d 679) (2009). We “will not

disturb fact findings of a trial court if there is any evidence to sustain them.” Id.

(citation and punctuation omitted.)

The record shows Hart had a rental agreement with Walker in which Hart

would pay bi-weekly rent to occupy a room in Walker’s house. When Hart notified

Walker that he might be late on an upcoming rent payment, an argument between

them ensued and Walker told Hart to vacate the premises. Hart then called the police,

who advised Walker that she could not illegally evict Hart or force him to leave the

premises without following the proper eviction procedures in court.

Shortly after the argument, Hart left the premises. When he returned a short

time later, Hart discovered that his personal belongings had been moved outside of

the house and that the door locks had been changed. Hart claims that, while retrieving

his personal property, he discovered a number of his personal belongings were

missing.

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 At the evidentiary hearing, Hart testified as to his damages and presented one

motel receipt. Hart also presented testimony from a forensic appraiser, who testified

as to the fair market value of Hart’s alleged missing belongings. Following this

hearing, the trial court concluded that Hart had not met his burden of proof in

providing evidence of his actual and compensatory damages; as a result, the trial

court awarded no damages to Hart on his claims.

1. In his first enumeration of error, Hart contends that the trial court clearly

erred in ruling that Hart did not meet his burden of providing evidence of actual or

compensatory damages.

At the evidentiary hearing, Hart testified that the items he lost as a result of the

wrongful eviction included tools, clothing, a pair of eyeglasses, and a diamond

engagement ring. Hart also presented testimony from a forensic appraiser to establish

the fair market value of these items. In response, Walker acknowledged that she did

not know whether Hart owned the clothing or engagement ring, but she testified that

Hart did not have any tools in the house.

Under OCGA § 24-14-1, “[t]he burden of proof generally lies upon the party

who is asserting or affirming a fact and to the existence of whose case . . . the proof

of such fact is essential.” To recover damages in this case, Hart had the burden of

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proving by a preponderance of the evidence that he actually owned the specified

items and that such items were missing. See OCGA § 24-14-3. The “preponderance

of the evidence” burden of proof is “that superior weight of evidence upon the issues

involved, which, while not enough to free the mind wholly from a reasonable doubt,

is yet sufficient to incline a reasonable and impartial mind to one side of the issue

rather than to the other.” (Citation and punctuation omitted.) Zwiren v. Thompson,

276 Ga. 498, 499 (578 SE2d 862) (2003). The preponderance of the evidence

standard “requires only that the finder of fact be inclined by the evidence toward one

side or the other.” (Citation and punctuation omitted.) Id. Additionally, under OCGA

§ 9-11-52 (a), “due regard shall be given to the opportunity of the trial court to judge

the credibility of the witnesses.”

As to compensatory damages for personal property, Hart needed to persuade

the trial court by a preponderance of the evidence both that he owned the items and

that those items were missing. The only evidence Hart provided to establish these

facts was his own testimony. Apparently, the trial court found that Hart’s testimony

in this regard lacked credibility. This finding was not clearly erroneous because the

credibility of Hart’s testimony is within the sole province of the trial court as the

finder of fact. See OCGA § 9-11-52 (a). Furthermore, because Hart failed to convince

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the trial court that he owned the items or that such items were missing, it was

irrelevant that Hart provided evidence of the fair market value of the items.

Hart also asserts that the wrongful eviction caused him to incur additional

expenses. Specifically, Hart testified that he stayed at various motels for a month and

a half , and that he spent $500 on food and $192 on MARTA passes after he was

evicted. Hart only provided documentary evidence, however, of a $110 receipt for a

two-night motel stay that occurred over a month after he was evicted. Although he

asserted that he stayed at several other motels after his eviction, he acknowledged that

he had no receipts for his other motel stays.

OCGA § 51-12-4 provides that “[d]amages are given as compensation for

injury; generally, such compensation is the measure of damages where an injury is of

a character capable of being estimated in money.” OCGA § 51-12-9 provides that

“[d]amages which are the legal and natural result of the act done, though contingent

to some extent, are not too remote to be recovered. However, damages traceable to

the act, but which are not its legal and natural consequence, are too remote and

contingent to be recovered.”

As an initial matter, we note that Hart would ordinarily have to pay living and

food expenses regardless of where he was staying and, thus, these expenses may be

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too remote to be the legal or natural consequence of the wrongful eviction.

Furthermore, the motel receipt that Hart produced as evidence was for a motel stay

that occurred over a month after Hart was wrongfully evicted. Additionally, there was

no evidence of Hart’s other motel stays, food expenses, and travel expenses, other

than Hart’s own testimony, which the trial court was authorized to disregard if it

determined that his testimony lacked sufficient credibility.

Given that we must give due regard to the trial court’s opportunity to hear the

evidence and determine the credibility of Hart’s testimony, see OCGA § 9-11-52 (a)

and Washington, supra at 336, we conclude that the trial court did not clearly err in

declining to award Hart damages.

2. In his second enumeration of error, Hart contends that the trial court erred

by failing to rule on his request for punitive damages. We disagree.

Under OCGA § 51-12-5.1 (a), punitive damages can only be awarded as

“additional damages.” When actual or compensatory damages are not awarded,

punitive damages are not authorized. See Martin v. Martin, 267 Ga. App. 596, 597

(2) (600 SE2d 682) (2004). As the trial court declined to award actual or

compensatory damages to Hart, the trial court did not err in failing to award punitive

damages.

Judgment affirmed. McFadden, P. J., and Rickman, J., concur.

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