author: Blackburn, Judge.

text:
    A98A1840.
    In the Interest of S. J. C. et al., children.
    (507 SE2d 226)
   Blackburn, Judge.

Appellant, the biological mother of S. J. C., M. E. M., J. K. G., and L. C. G., appeals the juvenile court’s termination of her parental rights, claiming that the evidence was insufficient to support the termination. The appellant also contends that the juvenile court failed to make reasonable efforts to reunify her family. For the reasons discussed below, we affirm the decision of the juvenile court.

On appeal, we must determine “whether, after reviewing the evidence in a light most favorable to the lower .court’s judgments, any rational trier of fact could have found by clear and convincing evidence that the natural parent’s rights to custody have been lost. . . . This Court neither weighs evidence nor determines the credibility of witnesses; rather, we defer to the trial court’s factfinding and affirm unless the appellate standard is not met.” (Punctuation omitted.) In the Interest of R. N., 224 Ga. App. 202 (480 SE2d 243) (1997).

1. On September 2, 1993, the juvenile court of Cherokee County determined that appellant’s children were deprived, and it granted custody to appellant’s mother. The juvenile court found that appellant had abandoned her children with her mother; that appellant provided her children with inadequate food, clothing, and hygiene; that appellant’s children were not properly supervised or nurtured; that the educational needs of the children were not being met; and that appellant was addicted to drugs. Appellant’s mother retained custody of the children until May 10, 1996, when the juvenile court again found that the children were deprived under their grandmother’s care and granted temporary custody for a period of 18 months to the Department of Family & Children Services (DFACS). Multiple case plans were then developed by DFACS from June 10, 1996 through November 3, 1997.

Although appellant was not included in the earlier case plans for reunification of the children with their grandmother because appellant was not the legal guardian of the children, on January 15, 1997, Jonelle Courson, the children’s caseworker, met with appellant to discuss the third case plan developed by DFACS which recommended cessation of reunification services. This plan directed appellant to submit to a psychological evaluation, pay child support, and properly provide for the children’s financial and emotional needs. Appellant did not comply with these directives. In DFACS’ fourth and final case plan, termination of appellant’s parental rights was recommended. Thereafter, the juvenile court terminated such rights.

“Before terminating a parent’s rights, a juvenile court must employ a two-prong test. In the first prong, the court must decide whether there is ‘present clear and convincing evidence of parental misconduct or inability.’ OCGA § 15-11-81 (a). Parental misconduct or inability, in turn, is proven by evidence showing: (1) that the child is deprived; (2) that lack of proper parental care or control is the cause of deprivation; (3) that the cause of deprivation is likely to continue or will not likely be remedied; and (4) that continued deprivation is likely to cause serious physical, mental, emotional, or moral harm to the child. OCGA § 15-11-81 (b) (4) (A). In determining whether a child is without proper parental care and control, a court may consider, among other things, ‘conviction of the parent of a felony and imprisonment therefor which has a demonstrable negative effect on the quality of the parent-child relationship^]’ . . . OCGA § 15-11-81 (b) (4) (B) (iii), (iv). In the second prong of the test, the juvenile court must consider whether termination of parental rights would be in the best interest of the child.” In the Interest of V. S., 230 Ga. App. 26, 27 (495 SE2d 142) (1997).

There is no question that appellant’s children were deprived. First, the record contains previous orders of the juvenile court which include findings of such deprivation, and, in the termination proceedings, the court took judicial notice of such orders. See In the Interest of J. L. Y., 184 Ga. App. 254 (1) (361 SE2d 246) (1987). Second, the clear and convincing evidence adduced at the termination hearing supports a finding of deprivation, as there was testimony that the children are delayed in their educational and emotional development, that they may have been subject to sexual abuse, that their financial needs were not being met, that appellant had a history of drug addiction, and that appellant had been incarcerated for felony convictions. See OCGA § 15-11-81 (b) (4) (B). In addition, there was evidence that appellant had failed to communicate with her children in a “meaningful, supportive, caring manner” for more than a year prior to the filing of the petition to terminate her parental rights. See OCGA § 15-11-81 (b) (4) (C).

The juvenile court had sufficient evidence to determine that appellant’s inability to adequately care for her children was the cause of their deprivation. Appellant abandoned her children with their grandmother, failed to stay in contact with DFACS, and failed to comply with case plans developed by DFACS while the children were in its custody. Moreover, appellant, who had a history of abusing drugs and alcohol to the detriment of her children, was incarcerated for multiple crimes, including, among others, theft by taking, burglary, and card theft. Appellant’s conduct provides clear and convincing evidence that the children’s deprivation originated from her neglectful child rearing and inappropriate behavior.

The evidence also supports the finding by the trial court that the deprivation is likely to continue. “Although past deprivation is not sufficient for termination without a showing of present deprivation, the court can consider a parent’s past conduct in determining whether such conditions of deprivation are likely to continue. . . . The court was entitled to infer from the evidence that, despite the best efforts of DFACS and many other social workers and charities, the same pattern of deprivation would continue [if] the children were reunited with their mother.” (Punctuation omitted.) In the Interest of R. N., supra at 204 (1) (c).

The record also supports the finding that the children are likely to be harmed by the continued deprivation. All of the children have suffered physical, emotional, and developmental setbacks while under their mother’s care and under their grandmother’s care after being abandoned by their mother. When combined with the mother’s pattern of neglecting her children’s needs in the past, including appellant’s failure to comply with DFACS’ case plans, the evidence provides clear and convincing proof that reuniting these children with appellant would cause harm to them.

Finally, the record supports a finding that termination of appellant’s parental rights would be in the best interests of her children. The same factors which show a parent’s inability to properly raise her children may also provide proof that termination of parental rights would be in the children’s best interests. In the Interest of G. K. J., 187 Ga. App. 443, 444 (2) (370 SE2d 490) (1988). Although appellant now claims that she will be a proper mother, no change in the outcome of this case is mandated. “[T]he decision as to a child’s future must rest on more than positive promises which are contrary to negative past fact.” (Punctuation omitted.) In the Interest of D. I. W., 215 Ga. App. 644, 646 (451 SE2d 804) (1994).

2. In her second enumeration of error, appellant contends that the juvenile court erred in terminating her parental rights because DFACS failed to make reasonable efforts to reunite her family pursuant to OCGA §§ 15-11-41 (b) and 15-11-81 (b) (4) (C). We disagree.

“[W]e find no merit in the appellant[’s] assertion that DFACS wás required to provide appropriate resources to aid in the reunification of the family for a period of one year after the reunification plan was ordered. The requirement is not found in statute. OCGA § 15-11-41 (b) provides the juvenile court ‘shall. . . determine as a finding of fact whether reasonable efforts were made by (DFACS) and any other appropriate agencies to prevent or eliminate the need for removal and to make it possible for the (children) to return to the (children’s) home.’ These findings are required in relation to deprivation orders, not termination proceedings. Moreover, no one-year requirement exists in OCGA § 15-11-41 (b). We will not attempt to impose such a requirement by reading OCGA § 15-11-41 (b) together with OCGA § 15-11-81. OCGA § 15-11-81 regarding termination is a complicated statute that references many other statutes. If the legislature had intended it to be read in conjunction with OCGA § 15-11-41 (b), this intent would have been expressly stated.” (Footnote omitted.) In the Interest of A. M. B., 219 Ga. App. 133, 136 (464 SE2d 253) (1995). Although this ruling was issued prior to the amendment of OCGA §§ 15-11-41 and 15-11-81 in 1996, such amendments do not affect the efficacy of this statement.

Moreover, OCGA § 15-11-41 (b) (1) provides that “[i]n determining reasonable efforts [for reunification] to be made with respect to a child . . . and in making such reasonable efforts, the child’s health and safety shall be the paramount concern.” In addition, OCGA §§ 15-11-41 (b) (4), 15-11-41 (c), and 15-11-41 (g) confirm that reunification attempts are not required in every case. For example, OCGA § 15-11-41 (c) provides: “Within 30 days of the date of removal of the child from the home and at each subsequent review of the disposition order, [DFACS] must submit a written report to the court which shall either include a case plan for a reunification of the family or include a statement of the factual basis or bases for determining that a plan for reunification is not appropriate.” (Emphasis supplied.) In turn, OCGA § 15-11-41 (g) (2) indicates that a determination that reunification services would be detrimental may be based on the same grounds for termination of parental rights under OCGA § 15-11-81. Based on these sections of OCGA § 15-11-41, reunification services need not be extended in every case, as appellant contends.

Decided September 22, 1998.

Howard & Delaney, Stephen A. Delaney, Gregory A. Hicks, James K. Luttrell, for appellant.

Thurbert E. Baker, Attorney General, Dennis R. Dunn, William C. Joy, Senior Assistant Attorneys General, Shalen A. Sgrosso, Stephanie M. Baldauff, Assistant Attorneys General, Dyer, McElyea & Thompson, Dana M. Thompson, David L. Cannon, for appellees.

Finally, the record in this case shows that DFACS made numerous attempts to develop reunification plans for this troubled family. Thus, appellant’s contention that DFACS failed to provide appropriate reunification services is meritless.

Judgment affirmed.

McMurray, P. J., and Eldridge, J., concur.

       The biological fathers of appellant’s children surrendered their parental rights and are not parties to this appeal.

       Some of appellant’s children require treatment for fetal alcohol syndrome.

       During the two years that the children were in DFACS’ custody, DFACS was able to ascertain appellant’s whereabouts for a period of only approximately two months.

       Indeed, it appears that the parent-child relationship became so non-existent that appellant’s children never even inquired about her in her absence.


source: Caselaw Access Project

license: Public Domain

text:
    A98A1952.
    THE STATE v. KAYLOR.
    (507 SE2d 233)
   Blackburn, Judge.

The State does not enumerate as error, or argue on appeal, the trial court’s exclusion of the breathalyzer test based on the State’s failure to accommodate Kaylor’s request for an independent blood test pursuant to OCGA § 40-6-392. Rather, the State’s appeal and enumeration of error is limited to the issue of whether Rieck’s initial contact with Kaylor violated Kaylor’s Fourth Amendment rights, and that is the only issue which we address. For the reasons set forth below, we reverse.

“When reviewing a trial court’s decision on a motion to suppress, this court’s responsibility is to ensure that there was a substantial basis for the decision. The evidence is construed most favorably to uphold the findings and judgment, and the trial court’s findings on disputed facts and credibility are adopted unless they are clearly erroneous. Further, since the trial court sits as the trier of fact, its findings are analogous to a jury verdict and will not be disturbed if there is any evidence to support them.” (Citations omitted.) Morgan v. State, 195 Ga. App. 732, 735 (3) (394 SE2d 639) (1990).

As found by the trial court, the facts in this case are as follows. In the early morning hours of October 11, 1997, Officer William Rieck received a dispatch from police headquarters that an anonymous caller had reported to 911 emergency services that a drunk driver was operating a green Ford Aerostar van with a certain license plate number. The van, on which a police “lookout” had been placed, passed by Rieck’s vehicle in the opposite direction and pulled into the parking lot of a convenience store. Rieck observed no traffic violations being committed. Rieck then turned his vehicle around and parked his car behind the van, without blocking the van’s means of egress. Rieck did not employ the lights on his police vehicle. While Kaylor was inside the store, Rieck confirmed that the van’s license plate number matched the number provided by the tipster.

After Kaylor exited the store carrying a cola and a bag of potato chips, Rieck approached him, noting that Kaylor’s appearance was disheveled. Rieck advised Kaylor that his van matched the description of a vehicle reported to have been operated by a drunk driver, and he requested Kaylor’s driver’s license and proof of insurance. Rieck detected the smell of an alcoholic beverage on Kaylor’s breath and person, and Kaylor, whose stance was unsteady, had trouble understanding Rieck’s instructions to stop eating and drinking long enough to answer his questions. After other officers arrived at the scene, Rieck asked Kaylor to perform a “heel to toe” field sobriety test, which Kaylor performed poorly. Kaylor refused to participate in any other tests.

Rieck then took Kaylor into custody, read implied consent rights to him, and asked him to submit to a state-administered breath test. This test was later performed at the police department, and the registered results were a blood-alcohol level of .088 and .085. However, the trial court found that the results of this test had to be excluded because Rieck’s request for an additional, independent test was not appropriately accommodated pursuant to OCGA § 40-6-392.

“Under our law, there are three levels of police-citizen encounters. In the first level, police officers may approach citizens, ask for identification, and freely question the citizen without any basis or belief that the citizen is involved in criminal activity, as long as the officers do not detain the citizen or create the impression that the citizen may not leave. This tier provides no Fourth Amendment protection. . . . The second tier occurs when the officer actually conducts a brief investigative Terry stop of the citizen. In this level, a police officer, even in the absence of probable cause, may stop persons and detain them briefly, when the officer has a particularized and objective basis for suspecting the persons are involved in criminal activity.” (Citations omitted.) State v. Banks, 223 Ga. App. 838, 839-840 (479 SE2d 168) (1996). The third tier of police-citizen encounters include “full-scale arrests that must be supported by probable cause.” (Punctuation omitted.) Alexander v. State, 166 Ga. App. 233, 234 (2) (303 SE2d 773) (1983).

In McClain v. State, 226 Ga. App. 714 (487 SE2d 471) (1997), after following the suspect on the hunch that he might speed, an officer pulled his patrol car alongside the suspect’s car in the parking lot of a shopping center into which the suspect had turned. “Even though the officer did not flag [the suspect], turn on his blue flashing lights, nor do anything else to indicate he wanted [the suspect] to stop, [the suspect] stopped and the officer pulled up alongside. To this point, the officer had observed no traffic violations.” Id. at 715. When the suspect responded to the officer’s questions about where he was going, the officer smelled alcohol and asked the suspect to “wait here just a second.” Then, the officer asked the suspect for his driver’s license, and the officer noticed that the suspect’s eyes were red and glassy and that his speech was slurred. After admitting that he had imbibed five or six beers, the suspect failed several field sobriety tests, and the officer arrested the suspect for driving under the influence. Id. Prior to his trial, the suspect filed a motion in limine to exclude the officer’s testimony, which the trial court denied.

In affirming the trial court’s denial of the motion to suppress in McClain, we held: “The officer’s following of [the suspect’s] vehicle . . . did not indicate that [the suspect] was not free to drive on. Nor did the officer’s approaching [the suspect’s] stopped vehicle and making inquiries as to what was going on constitute a seizure of [the suspect]. The actions of an officer approaching a stopped vehicle, requesting to see a driver’s license, and inquiring about possible criminal or suspicious activity clearly fall within the realm of the first type of police-citizen encounter and do not amount to a stop.” (Citation omitted.) Id. at 716.

The same principles which applied in McClain are applicable here. As he could with any citizen, Rieck could “approach [Kaylor], ask for identification, and freely question [Kaylor] without any basis or belief that [Kaylor was] involved in criminal activity [without triggering the Fourth Amendment], as long as [Rieck did] not detain [Kaylor] or create the impression that [Kaylor could] not leave.” Id. Therefore, contrary to the trial court’s opinion, Rieck’s initial encounter with Kaylor was not a stop, and the Fourth Amendment was not triggered at all. Moreover, once Rieck began talking to Kaylor, Rieck detected the strong odor of alcohol from a distance of four feet from Kaylor, Kaylor had difficulty following Rieck’s instructions, and Kaylor performed poorly on a field sobriety test. Such evidence gave Rieck reasonable grounds to determine whether Kaylor had been driving under the influence. Crosby v. State, 214 Ga. App. 753, 755 (449 SE2d 147) (1994). Accordingly, we reverse the trial court’s finding that all evidence obtained after Rieck’s initial contact with Kaylor must be suppressed.

Decided September 22, 1998.

Keith C. Martin, Solicitor, Kimberly A. Gross, Michael L. Tripp, Assistant Solicitors, for appellant.

Thomas S. Barton, for appellee.

Judgment reversed.

McMurray, P. J., and Eldridge, J., concur.


author: Smith, Judge.

text:
    A98A1390.
    SPEARS v. THE STATE.
    (506 SE2d 446)
   Smith, Judge.

David A. Spears brings this appeal from the trial court’s denial of his plea in bar on double jeopardy grounds.

Spears was charged by accusation in Toombs County with driving under the influence and disorderly conduct. After a hearing on Spears’s competence to stand trial, a jury was impaneled and sworn. During presentation of the State’s case, appellant’s counsel notified the solicitor that his law partner had called the State Bar of Georgia on another matter and discovered that the solicitor was not in good standing for failure to pay dues. The solicitor stated in his place that he recalled sending a check to the State Bar for his dues, that the dues arrears notices had not yet been sent out by the Bar, and that this was his first notice of any problem. General counsel for the Bar was contacted by telephone and suggested that the solicitor post a bond in the amount of the dues with the clerk of superior court. The trial court also spoke with the Bar and noted that “[t]hey told me essentially the same thing” and acknowledged that an error could have been made in posting the payment. The trial court initially decided to recess the case from Friday until Monday morning, pending the solicitor’s presentation of evidence that he had paid his Bar dues, and to declare a mistrial on Monday if the solicitor was unable to show he was in good standing. Spears’s counsel objected and moved for an immediate mistrial on the basis that all the proceedings to that point were invalid. After further discussion, the trial court declared a mistrial.

In his sole enumeration of error, Spears maintains that a retrial would be improper because the mistrial was “due to the gross negligence of the state court solicitor which amounted to prosecutorial misconduct.” We disagree.

“The general rule is that where a mistrial is granted at the behest of the defendant, a retrial is not barred by principles of double jeopardy unless the governmental conduct in question is intended to goad the defendant into moving for a mistrial.” (Citations and punctuation omitted.) Mobley v. State, 262 Ga. 808, 809-810 (1) (426 SE2d 150) (1993). “Even where a prosecutor’s conduct is sufficient to justify a grant of mistrial, the conduct nevertheless does not bar retrial absent intent on the part of the prosecutor to subvert the protections afforded by the double jeopardy clause. To authorize the grant of a plea of double jeopardy, the facts must warrant the conclusion that there was such an instigative intention.” (Citations and punctuation omitted.) Haralson v. State, 227 Ga. App. 118 (488 SE2d 497) (1997).

Here, the record and transcript show only that the solicitor was unaware of his status with the State Bar until informed of it during trial by Spears’s counsel. Spears asserts that the solicitor drove from Vidalia to Atlanta the following Monday to pay his dues in cash, arguing that this establishes not only a failure to pay dues but perjury in the solicitor’s earlier statement that he had sent a check to the State Bar. But these assertions appear nowhere in the record. “This court cannot consider the factual assertions of the parties appearing in briefs when such evidence does not appear on the record. Moreover, parties cannot supplement the record merely by attaching matters to or reciting matters in their briefs.” (Citations and punctuation omitted.) State v. Ganong, 221 Ga. App. 250 (470 SE2d 794) (1996).

Even if the solicitor failed to pay his Bar dues, Spears has not pointed to any evidence of intentional misconduct or “instigative intention” on the part of the solicitor. “In the instant case, the trial court who heard appellant’s plea of double jeopardy obviously found no instigative intention and the evidence supports the finding of the trial court. It follows that appellant’s plea in bar based upon double jeopardy was properly denied.” (Citations and punctuation omitted.) Williams v. State, 207 Ga. App. 124, 125 (427 SE2d 59) (1993).

Judgment affirmed.

Johnson, P. J., and Senior Appellate Judge Harold R. Banke concur.

Decided September 8, 1998

Reconsideration denied September 23, 1998

Jason A. Craig, for appellant.

David B. Pittman, Solicitor, for appellee.


author: Johnson, Presiding Judge.

text:
    A98A1652.
    DAN VADEN CHEVROLET v. MANN.
    (506 SE2d 653)
   Johnson, Presiding Judge.

We granted the discretionary appeal in this workers’ compensation case to determine whether the burden of proof in an initial claim was improperly shifted to the employer, and whether the superior court erred in failing to accept the State Board’s findings of fact.

The claimant, Johnny Mann, worked for Dan Vaden Chevrolet for three to four years, originally as a porter and finally as a vehicle detailer. Before Dan Vaden Chevrolet hired him, Mann had a longstanding history of back problems, including two surgeries. On February 22, 1996, he strained his lower back at work while moving a filing cabinet/safe, but he continued to work until March 5, 1996.

Later in the month, Mann was hospitalized with endocarditis, renal failure, sepsis, anemia, and low back pain. Subsequently, he sought temporary total disability benefits based on the back injury, and following an “all issues” hearing requested by Mann, the ALJ found that he had established a period of temporary total disability from March 6, 1996, until March 27, 1996, but had not sustained his burden of showing a work-related disability after that period. Rather, any further disability was attributable to his various other health problems that were unrelated to the work injury.

The appellate division upheld the ALJ’s finding regarding the temporary period of disability, but held that after Mann established the temporary period of disability from March 6, 1996, until March 27, 1996, the burden of proof shifted to the employer to show a change in condition for the better after March 27, 1996. Nevertheless, the appellate division found that the employer satisfied that burden and upheld the denial of the claim for any period after March 27, 1996.

On appeal, the superior court found conflicts in the ALJ’s decision, the appellate division’s decision, and the evidence of record, and remanded the case to the appellate division to resolve those conflicts. The conflicts primarily consisted of the appellate division’s findings concerning the lack of any treatment for Mann’s alleged back problem after March 27, 1996, compared to notations in the medical records referencing a back problem after that date. The superior court adhered to the burden of proof as assigned by the appellate division.

On remand, the appellate division again placed the burden of proof upon the employer to show a change in condition for the better after March 27, 1996, but found the employer met that burden. The appellate division also addressed the conflicts noted by the superior court, observing that certain references to Mann’s back problem contained in the medical records were made in the context of investigating the possible source of an infection for which Mann was being treated, and not to diagnose and treat a back problem.

Mann again appealed the matter to the superior court, which held that the evidence, as cited by the appellate division, did not support the finding that the employer met its burden of proving a change in condition for the better. The superior court then remanded the case to the appellate division with direction to make findings of fact and conclusions of law consistent with the evidence of record. This appeal is from the superior court’s order to remand.

1. An employee has the initial burden of proving a disabling, work-related injury entitling him to workers’ compensation benefits. Dasher v. City of Valdosta, 217 Ga. App. 351, 352 (1) (457 SE2d 259) (1995). In the instant case, Mann filed an initial claim for temporary total disability benefits as of March 6, 1996, and continuing, and he had the burden of proof regarding that claim.

As authority for the proposition that during an “all issues” initial claim, once it is found that the employee has established a temporary total disability, the burden shifts to the employer to prove the employee is no longer disabled, the appellate division relied upon Cornell-Young &c. v. Minter, 168 Ga. App. 325 (309 SE2d 159) (1983). However, Cornell-Young was a change in condition case and is inapplicable to “all issues” initial claims.

For a change in condition to occur, the evidence must show that a change occurred after the date on which the employee’s physical condition was last established by award or otherwise. OCGA § 34-9-104 (a) (1); Johnson Controls v. McNeil, 211 Ga. App. 783, 785 (1) (440 SE2d 528) (1994). The burden of proof is on the party claiming that a change in condition has occurred. Id. As Mann’s condition had never been established by award or otherwise prior to the hearing on his claim, he had the burden of proof in the matter and the appellate division erred in shifting the burden to the employer at whatever point in time during the hearing Mann established a work-related disability.

However, the improper assignment of the burden of proof alone may be harmless where both parties had ample opportunity to present evidence fully. Cornell-Young, supra at 330. In this case, both Mann and his employer thoroughly presented evidence regarding Mann’s work injury and his other health problems that subsequently developed. For that reason, regardless of the burden of proof assignment, the dispositive issue is whether the State Board’s determination was supported by some evidence.

Decided September 10, 1998

Reconsideration denied September 23, 1998.

Murphy & Sibley, Phillip A. Sibley, for appellant.

Edward E. Boshears, for appellee.

2. The ALJ determined that Mann proved a temporary period of total disability from March 6, 1996, until March 27, 1996, but that any subsequent disability was attributable to other health problems unrelated to his work injury. Although the appellate division erroneously shifted the burden of proof to the employer, it likewise concluded that the evidence established a work-related disability only from March 6, 1996, until March 27, 1996.

In remanding the case, the superior court concluded that the evidence cited by the appellate division did not support a finding that the employer demonstrated a change in Mann’s condition for the better as of March 27, 1996. However, as discussed by the ALJ in the original award, an orthopedist who examined Mann in November 1996 reported that Mann’s back condition was not significantly altered by the February 1996 work injury and did not render him unable to work. That medical opinion supported the finding that any disability attributable to Mann’s February 1996 work injury was temporary and, along with the lack of any medical treatment for Mann’s back condition after the onset of his numerous health problems in March 1996, constituted some evidence to support the finding that Mann was disabled by the back injury only from March 6, 1996, until March 27, 1996.

“In reviewing a workers’ compensation award, both this court and the superior court must construe the evidence in the light most favorable to the party prevailing before the ALJ and appellate division.” (Citations and punctuation omitted.) Worthington Indus. v. Sanks, 228 Ga. App. 782, 783 (2) (492 SE2d 753) (1997). Applying that standard in this case, as there was some evidence to support the State Board’s determination that Mann’s work-related disability had ceased by March 27, 1996, the superior court erred in not affirming the award.

Judgment reversed.

Smith, J, and Senior Appellate Judge Harold R. Banke concur.


author: McMueray, Presiding Judge.

text:
    A98A1276.
    CLARK v. THE STATE.
    (507 SE2d 241)
   McMueray, Presiding Judge.

This is an out-of-time appeal from defendant Clark’s conviction of sexual battery, child molestation, and cruelty to children. The sole enumeration of error challenges the sufficiency of the evidence. Held:

The primary evidence presented by the prosecution consists of statements of the victim, a female child, five years of age at the time of trial and four years of age at the time of the offense. A videotaped interview of the child was introduced, as well as the testimony of various members of the child’s extended family. The child’s relatives testified pursuant to OCGA § 24-3-16 as to statements made by the child. The relatives, including the child’s mother, grandmother, aunts, and great aunt, also described changes in the victim’s behavior and demeanor during the interval of time preceding the recognition that an issue of child abuse existed.

The sexual battery conviction arose as a lesser included offense of the indicted charge of aggravated sodomy alleging that defendant had placed his mouth on the sexual organs of the victim and against her will. In the videotaped interview, the victim, using anatomically correct dolls, indicated that defendant had placed his mouth or tongue on her vagina. The conviction of sexual battery “only required proof of unconsented to intentional physical contact with the victimas] intimate parts. . . .” McGriff v. State, 232 Ga. App. 546, 547 (2) (502 SE2d 482). See also OCGA § 16-6-22.1.

The child molestation conviction arose as a lesser included offense of the indicted charge of aggravated child molestation alleging an act of oral sodomy involving the sex organs of the defendant and the mouth of the victim. Again, in the videotaped interview, the victim indicated that defendant had placed his penis in her mouth.

With regard to the conviction of cruelty to children (OCGA § 16-5-70), there was ample evidence through both the videotaped statement and the testimony of the relatives that the victim experienced cruel and excessive mental pain which would authorize this conviction. This evidence included the victim’s complaints of physical pain and apparent emotional distress, evidence that her vagina appeared red and irritated, the child’s conduct in seeking to avoid contact with defendant, and regression in her toilet training.

Through the videotape and her statements to relatives, the victim described many sexual contacts between defendant and herself. Some of these descriptions provided the basis for other charges of which defendant was acquitted.

The child did not testify at trial, and the prosecution did not present any testimony arising from the medical examination of the child’s physical condition. Defendant maintains that the evidence concerning the child’s statements is unreliable and that, in light of all the facts and circumstances including the evidence which he presented at trial, the evidence is not sufficient to authorize his conviction.

Decided September 23, 1998.

David L. Cannon, for appellant.

Garry T. Moss, District Attorney, Cecelia Harris, Assistant District Attorney, for appellee.

However, defendant’s argument addresses issues of credibility and weight of evidence which are not within the province of an appellate court, but are issues for the jury. Autry v. State, 230 Ga. App. 773, 774 (1) (498 SE2d 304); King v. State, 224 Ga. App. 400 (1) (480 SE2d 385); Clay v. State, 216 Ga. App. 310, 311 (1) (454 SE2d 198). As an appellate court, we determine the sufficiency of the evidence which is ample in this case to authorize a rational trier of fact to conclude that defendant is guilty beyond a reasonable doubt of the offenses of sexual battery, child molestation, and cruelty to children. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560); Swift v. State, 229 Ga. App. 772, 773 (1) (495 SE2d 109).

Judgment affirmed.

Blackburn and Eldridge, JJ., concur.


author: McMURRAY, Presiding Judge.

text:
    A98A1428.
    BRASWELL v. HENDERSON et al.
    (507 SE2d 237)
   McMURRAY, Presiding Judge.

This is a breach of contract action arising from the purchase and sale of a package store. The defendant-sellers, Warren Braswell and Dianne Braswell, warranted that there was an inventory of at least $100,000 in the store. The plaintiff-purchasers, Jack Henderson and JoAnn Kirby, filed this action alleging that the inventory was of less than the promised value and seeking the amount of the shortfall as damages. The case was tried before the superior court, without a jury, and resulted in a plaintiffs’judgment of $33,557, less a set-off of $651 arising from a counterclaim. Defendant Dianne Braswell appeals. Held:

It was uncontroverted that the store’s inventory was to be valued at wholesale rather than retail prices. Three witnesses provided evidence as to the value of the store’s inventory.

An accountant testified as to an inventory conducted by his firm based on a physical count and each item’s retail price. When the accountant learned that the inventory needed to be valued at wholesale, he attempted to calculate this value by taking a sample from each category of merchandise, that is liquor, beer, and miscellaneous, and obtaining invoices for the items in the sample so as to determine an average markup for each category. Based on this process the accountant concluded that the wholesale value of the inventory was $83,718.99, a shortfall of $16,281.01. Defendant Dianne Braswell relies upon the accuracy of this inventory as revised to show wholesale value.

Defendant Warren Braswell worked with plaintiff Kirby to complete an alternative inventory of the merchandise in the store using the physical count developed by the accounting firm but applying values obtained from records of wholesale invoices stored in the store’s computer for approximately 85 percent of the merchandise and supplemental wholesale price information from other sources for the remainder. Both defendant Warren Braswell and plaintiff Kirby testified as to having worked together to complete their inventory, which according to plaintiff Kirby resulted in a valuation of approximately $67,000, or a shortfall of approximately $33,000.

Defendant Dianne Braswell objected to and sought to strike the testimony of defendant Warren Braswell and of plaintiff Kirby insofar as they based their opinions as to the value of the inventory upon the price information recorded in the memory of the store’s computer. She maintained that such information was hearsay and did not provide a proper foundation for the testimony of these two witnesses as to the valuation of the inventory. These objections were overruled and form the basis of four enumerations of error which were argued collectively.

On appeal, the argument of defendant Dianne Braswell is primarily directed to the admissibility of the computer records and their status under OCGA § 24-3-14 which provides the business records exception to the rule against admission of hearsay. However, the computer records were not tendered or admitted into evidence at trial. Apparently, the argument is intended to be that the valuation testimony of defendant Warren Braswell and plaintiff Kirby is inadmissible or lacks probative value because it is based in part on hearsay in the form of the computer record.

However, value is a matter of opinion, and any witness may testify as to his opinion provided that he gives his reasons therefor. While hearsay has no probative value, opinions as to value may be based on hearsay. Hasty v. Meaders, 130 Ga. App. 62, 63 (1) (202 SE2d 263); OCGA § 24-9-65. Thus, the “non-experts[ ] could offer their opinions inasmuch as they provided the reasons therefor and had an opportunity to form a correct opinion. [Cit.] The fact that the opinions were based upon hearsay goes merely to their weight and not their admissibility. [Cits.]” Four Oaks Properties v. Carusi, 156 Ga. App. 422, 424 (3) (274 SE2d 783).

Decided September 23, 1998.

Charles M. Johnson, for appellant.

Nelson, Gillis & Smith, Jon F. Helton, for appellees.

“Only in those situations where the testimony of the witness reveals there was no rational basis or reason for the opinion should the testimony be excluded.” Burch v. Lawrence, 150 Ga. App. 351, 352 (1) (258 SE2d 35). In the case sub judice, the circumstances relating to the computer records provided no basis for excluding the opinion testimony predicated in part on this information.

Defendant Warren Braswell testified that while he was a part-owner of the business, he entered information concerning the price which the business paid for inventory on the computer. While he did not do any of these entries in the last three months before the sale of the store and his daughter did most of the entries for a number of months prior to the sale, his testimony was sufficient to establish the existence of a practice in the business to record the wholesale prices of inventory in the computer. Defendant Dianne Braswell testified that she had to rely on her daughters to help make the computer entries and that they were behind in making them, but she also maintained that the entries in the computer record were truthful. Furthermore, there was ample evidence that valuation of the inventory was an imprecise process because of the impossibility of connecting the merchandise on the shelf with any specific invoice, and due to fluctuations of price due to wholesale promotions and quantity discounts. Under these circumstances, we cannot conclude that the computer records, even with the known flaws, provided such an unreasonable or irrational basis for forming an opinion of value as would bar the admission of that evidence. Consequently, the opinion evidence of inventory valuation provided by defendant Warren Braswell and plaintiff Kirby was admissible, did not lack probative value, and provided a proper basis for the judgment of the superior court.

Judgment affirmed.

Blackburn and Eldridge, JJ, concur.


author: Judge Harold R. Banke.

text:
    A98A1518.
    GARY v. THE STATE.
    (507 SE2d 242)
   Judge Harold R. Banke.

John Gary pleaded guilty to shoplifting a pack of cigarettes having a value of $1.15. Due to his prior shoplifting record this offense was a felony. OCGA § 16-8-14. The trial court imposed a ten-year sentence which Gary challenges as excessive in his sole enumeration of error. Held:

Decided September 23, 1998.

Copeland & Haugabrook, Karla L. Walker, for appellant.

J. David Miller, District Attorney, Jennifer A. Thomas, Assistant District Attorney, for appellee.

It is undisputed that Gary had at least three prior convictions for theft by shoplifting. OCGA § 16-8-14 (b) (1) (C) requires the imposition of felony sentences of up to ten years upon a conviction of a fourth shoplifting offense. The sentence imposed was within the statutory limits. This Court will not review for excessiveness sentences which fall within the statutory limits. Sinkfield v. State, 262 Ga. 239 (416 SE2d 288) (1992). Such issues should be addressed to the sentence review panel. Hill v. State, 212 Ga. App. 386, 390 (7) (441 SE2d 863) (1994).

Judgment affirmed.

Johnson, P. J., and Smith, J., concur.


text:
    A98A1235.
    ROGERS v. THE STATE.
    (507 SE2d 25)
   Judge Harold R. Banke.

Matthew Ransom Rogers was convicted of voluntary manslaughter and armed robbery. He enumerates two errors on appeal, challenging the sufficiency of the evidence of armed robbery and alleging ineffective assistance of counsel.

This case arose after the victim’s employer called his father, concerned that the victim had not appeared at work or telephoned, which he customarily did even when he was five minutes late. The employer and the victim’s father met at the victim’s house and found a chair cut up by a knife and no sign of the victim. They noticed that the victim’s car was missing. After it was discovered at a nearby elementary school, unlocked with the key in it and filled with the victim’s untouched Christmas gifts, the police were called. A frantic search by the victim’s family and friends ensued. The searchers subsequently realized that a number of the victim’s possessions were missing, including his leather jacket, golf clubs, pool sticks, bowling ball, jewelry, wallet, credit cards, and keys. The victim’s propensity for carrying large sums of money raised concern.

After several days, the victim’s father received an overdue notice in the victim’s name from a local video store. The father went to the store and viewed a surveillance tape showing the victim and Rogers together in the store. The victim and Rogers had visited the victim’s father several days before, and the father suspected that Rogers was one of the last persons seen with the victim. The father called Rogers, who gave conflicting stories on when he had last seen the victim the day before he was reported missing.

After receiving this call, Rogers became upset and confided to his cousin that he had killed a man. Ultimately, Rogers confessed to law enforcement officers, claiming the death was an accident, and led them to the body which he had dumped and hidden on his parents’ rural property.

When found, the victim’s fully clothed body had sustained only one large stab wound which passed through the victim’s shirt, entirely through the body, and exited at the back, leaving the shirt and jeans soaked in blood. The medical examiner testified that he thought it unlikely that the wound, which was created by a “great deal of force,” could have been made by an upward stab.

Notwithstanding this evidence, at trial Rogers claimed that the stabbing occurred accidentally when the victim fell on Rogers’ knife, which had a very large, curved, double-edged blade. According to Rogers, he passed out at the victim’s apartment and awoke on his back, with the nude victim on top, attempting to sodomize him. Rogers claimed that from this position he reflexively reached for his knife lying nearby and stabbed the victim in the shoulder and the back; the victim then fell on the knife, delivering the fatal wound. Rogers admitted taking the victim’s money. Other items belonging to the victim, including the leather coat, were found in Rogers’ car. Held:

1. Rogers argues that the evidence of intent was insufficient to sustain his armed robbery conviction. We disagree.

An armed robbery conviction is authorized even if the taking occurred after the killing, where, as here, the evidence authorizes a finding that the theft was completed by use of an offensive weapon. Francis v. State, 266 Ga. 69, 70 (1) (463 SE2d 859) (1995). Our cases have consistently held that this is true “‘regardless of when the intent to take the victim’s [property] arose, regardless of whether the victim was incapacitated and even if the victim had been killed instantly.’ (Cit.)” Davis v. State, 255 Ga. 588, 593 (3) (b) (340 SE2d 862) (1986). Thus, even accepting Rogers’ contention that the record contained no evidence of an intent to rob the victim prior to the killing, this argument was previously rejected in Prince v. State, 257 Ga. 84, 85 (1) (355 SE2d 424) (1987). Whether Rogers’ intent to take the victim’s belongings arose before or after the stabbing has no bearing on whether the evidence was sufficient to create a jury question on the armed robbery charge.

Decided September 11, 1998

Reconsideration denied September 24, 1998.

Joel N. Shiver, for appellant.

Harry N. Gordon, District Attorney, Gerald W. Brown, Assistant District Attorney, for appellee.

2. Trial counsel’s failure to request a jury instruction on the lesser included offense of theft by taking does not constitute ineffectiveness. To establish ineffectiveness, a defendant must prove that his trial counsel’s performance was deficient and the deficiency prejudiced his defense to the extent that there was a reasonable probability the result of the trial would have been different but for defense counsel’s unprofessional deficiencies. Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984); Brown v. State, 257 Ga. 277, 278 (2) (357 SE2d 590) (1987).

Unless requests to charge are correct, even perfect, a refusal to give them is not reversible error. Griffin v. State, 228 Ga. App. 200, 203 (2) (491 SE2d 437) (1997). They must be legal, apt, precisely calibrated to a relevant principle involved in the case, and authorized by the evidence. Id.

Here, the evidence refutes Rogers’ claim that he did not use a weapon. Compare Pearson v. State, 216 Ga. App. 333, 334 (454 SE2d 205) (1995). The record clearly showed that the victim was fatally stabbed and his property was concomitantly taken. OCGA § 16-8-41 (a). Because the evidence demonstrated completion of the greater offense, no charge on theft by taking was required. Davis v. State, 221 Ga. App. 168, 170 (3) (471 SE2d 14) (1996). Accordingly, counsel’s failure to request the charge did not constitute a deficiency.

Judgment affirmed.

Johnson, P. J., and Smith, J., concur.

       Because the evidence is clearly sufficient to support a finding that Rogers took the victim’s coat and money, we need not address his argument regarding theft of a bowling ball or pool sticks.


text:
    A98A1566.
    FELIX et al. v. THE STATE.
    (507 SE2d 172)
   McMURRAY, Presiding Judge.

Defendants Gladys Felix and Leonard Lee were jointly indicted for a single violation of the Georgia Controlled Substances Act, in that they allegedly did “unlawfully . . . possess and have under their control Cocaine. . . .” The evidence adduced at their joint jury trial showed that when police executed a search warrant for the residence of defendant Gladys Felix, they “discovered [defendant] Felix and [defendant] Lee laying in the bed. . . . They appeared to have been asleep.” There was no one “else in the house besides these two people. . . .” On “the left side of the headboard, . . . above [defendant] Felix’s head,” police observed a “[p]artially hand rolled suspected marijuana cigarette [that was burned on one end]; several rocks of crack cocaine; [and a Mason] jar, appeared to have a white alcohol in it; [also,] a utility knife [was] on the right hand side of the headboard.” Also there was a “paper napkin that was wrapped up with two [so-called] cookies[, i.e.,] larger pieces of crack cocaine before it was cut up for sale.” Defendant Felix’s green shoulder bag contained “108 one-dollar bills[, plus a] change purse [t]hat contained: 7 ten-dollar bills, 4 twenty-dollar bills, seven one-dollar bills, [and] 4 five-dollar bills. . . .” When defendant “Felix was getting dressed, she reached over into the recliner to get an item of clothing[, revealing a loaded] .38 Special... in the chair.” On the dresser was “a cup full of change [and] a box of ammunition.” In the living room was a bar with a “good bit” of liquor and beer in the apartment.

Vesna Stojkobic, a forensic chemist with the Georgia Bureau of Investigation Crime Laboratory in Columbus, Georgia, identified Item 2, State’s Exhibit 14, as 6.9 grams of a “chunky material . . . positive for cocaine.” Lieutenant William Grizzard of the Troup County Sheriff’s Office testified that the street value of the approximately 70 rocks of crack cocaine seized from the apartment, at $20 per rock, approached $1,400.

Although defendant Gladys Felix denied leasing or residing at the location where the police found her and her co-defendant Leonard Lee asleep in a bedroom containing $1,400 worth of contraband, large sums of cash, and a handgun, she did admit that she had spent the night in Unit 1301 Apartment D at least two times. Her brother owns the building containing Apartment D. After an all-night party in Apartment D, defendants Gladys Felix and her boyfriend, Leonard Lee, “were pretty high. [Defendant Gladys Felix] was too high to walk, and [defendant Leonard Lee] was too high to drive. And so [they] just laid down.” The jury found each defendant guilty as charged. Their joint motion for new trial was denied, and this appeal followed. Held:

1. Defendants’ first enumeration of error complains of the denial of their motion to suppress the contraband and other tangible items seized from apartment 1301-D Davidson Street in the City of West Point, Troup County, Georgia. They argue the warrant itself is defective for three reasons, namely, “(a) . . . because the address shown on the warrant is incorrect; (b) . . . because it was not supported by probable cause; and (c). . . because it appears to have been issued by the ‘Recorder’s Court of Troup County,’ but [allegedly] there is no such court.” Only the first of these contentions will be addressed in this compound enumeration. OCGA § 5-6-40; Robinson v. State, 200 Ga. App. 515, 518 (2) (b) (408 SE2d 820).

The warrant authorizes the search of the “entire premises, including curtilage, located at 1301 Davidson Street Apartment #4, West Point, Georgia.” The officer’s affidavit recites: “Within the past 24 hours [the affiant] was contacted by a reliable source who stated that she had seen an amount of Crack Cocaine at the residence located 1301 Davidson Street Apartment #4, West Point, Georgia. On several occasions, [affiant has] received information about Narcotics being sold from this residence.” In support of their contention that this description of the place to be searched is insufficient, defendants point to photographs indicating that there is no “Apartment #4” as such, although there is an apartment 1301-D.

A search warrant must “particularly [describe] the place or person, or both, to be searched and things to be seized. . . .” OCGA § 17-5-21 (a). “‘The test for the sufficiency of a premises description is whether “. . . on its face it enables a prudent officer executing the warrant to locate the person and place definitely and with reasonable certainty” ’ Anderson v. State, 249 Ga. 132, 135 (287 SE2d 195). The U. S. Supreme Court found a ‘(d)escription in a search warrant . . . giving its street and one of its two house numbers . . . sufficiently definite. ... It is enough if the description is such that the officer with a search warrant can with reasonable effort ascertain and identify the place intended.’ Steele v. United States, 267 U. S. 498, 503 (45 SC 414, 69 LE 757).” State v. Hardin, 174 Ga. App. 83 (329 SE2d 172). In the case sub judice, the correspondence of the letter D, the fourth letter of the alphabet, to “Apartment #4” at 1301 Davidson Street, West Point, Georgia, as listed in the warrant, is obvious. This was sufficient identification of the place to be searched to allow a prudent officer to locate the premises definitely and with reasonable certainty. Adams v. State, 123 Ga. App. 206 (180 SE2d 262). The trial court correctly denied defendants’ motion to suppress on this ground.

2. The trial court’s refusal to compel the State to reveal the identity of the confidential informant was not error, because defendants failed to show the informant was the only person whose personal knowledge would confirm or refute a material defense to the charge of possessing the contraband found in the bedroom where defendants were alone. See Moore v. State, 187 Ga. App. 387, 388 (2), 391 (370 SE2d 511). See also Wells v. State, 212 Ga. App. 60, 63 (3), 64 (441 SE2d 460).

3. At trial, Lieutenant Robert Frawley of the West Point Police Department was impeached during cross-examination by use of a prior inconsistent statement under oath, regarding the extent of his personal knowledge whether defendant Gladys Felix used the apartment as her residence. See OCGA § 24-9-83. The prosecutor claimed surprise, and thereafter, over defendants’ objection to improper third-party rehabilitation by an unlisted witness, the trial court permitted Lieutenant William Grizzard of the Troup County Sheriff’s Office to testify that he had served an arrest warrant on Gladys Felix on March 28, 1997, at her residence, “1301 Davidson Street, Apartment 4; West Point, Georgia.” Before Lieutenant Grizzard testified, the trial court offered to recess and permit defense counsel to speak with the officer.

Decided September 15, 1998

Reconsideration denied September 24, 1998

Ellis C. Smith, James C. Thornton, for appellants.

Peter J. Skandalakis, District Attorney, Todd A. Orston, Assistant District Attorney, for appellee.

Here, the State failed to comply with the mandate of OCGA § 17-16-8 (b) with respect to the witness, Lieutenant Grizzard. Nevertheless, in our view, the trial court did not err in permitting this brief testimony by an unlisted witness, since the trial court recessed so that defense counsel could interview Lieutenant Grizzard. OCGA § 17-16-8 (a).

4. Defendants enumerate the general grounds, arguing the uncontradicted evidence that a large number of people had partied at the apartment the night before precludes a finding of joint possession by defendants the following morning, based on so-called “equal access.”

“ ‘The equal access rule applies to contraband that is for the most part in “open, notorious and easily accessible areas.” (Cit.)’ Wright v. State, 154 Ga. App. 400 (1) (268 SE2d 378) (1980).” Wells v. State, 196 Ga. App. 133, 134 (3) (395 SE2d 296). In the case sub judice, defendants were the sole occupants in the bedroom where crack cocaine was in plain view and arm’s reach. This is sufficient, under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) to authorize the jury’s verdict that defendants are guilty, beyond a reasonable doubt, of jointly possessing the cocaine as alleged in the indictment. Cantrell v. State, 204 Ga. App. 330, 331 (419 SE2d 141); Tuggle v. State, 149 Ga. App. 634, 636 (7), 637 (255 SE2d 104).

Judgment affirmed.

Blackburn and Eldridge, JJ, concur.


author: Ruffin, Judge.

text:
    A98A0791.
    DEPARTMENT OF HUMAN RESOURCES v. WOODRUFF.
    (507 SE2d 249)
   Ruffin, Judge.

The Georgia Department of Human Resources (DHR) filed a complaint against Johnny Woodruff pursuant to the Child Support Recovery Act (CSRA), OCGA § 19-11-1 et seq., seeking to obtain reimbursement of public assistance benefits paid on behalf of J. W, a minor child, and also to obtain an order requiring Woodruff to make future periodic child support payments. The trial court denied DHR relief because (1) although Woodruff acknowledged paternity, he had not legitimated the child or been ordered to pay child support, and (2) the child’s mother opposed DHR’s attempt to collect from Woodruff. For the reasons discussed below, we reverse and remand this case to the trial court for further proceedings.

Michelle Burton gave birth to J. W. on September 8, 1994, at which time she and Woodruff were not married. As J. W.’s custodial parent, Burton began receiving Aid to Families with Dependent Children (AFDC) benefits in 1996. On July 1, 1997, DHR sued Woodruff, seeking reimbursement of these benefits as well as an order requiring Woodruff to make future child support payments and obtain insurance for the child.

At the hearing before the trial court, Woodruff testified that he was currently unemployed and living with Burton and the child. The trial court’s written order states that “[Woodruff] acknowledges paternity of [J. W.].” Burton testified that Woodruff was a good father and was voluntarily providing support for J. W. She testified that she desired to continue receiving public assistance benefits, but did not want DHR to collect child support or medical insurance from Wood-ruff. She also testified that she did not want a court order entered which would require Woodruff to pay periodic support or to obtain medical insurance.

Although Woodruff acknowledged paternity, the trial court held that he was not required to provide support because he had never legitimated the child or been ordered to pay child support. The trial court further held that, “as the custodial parent, Ms. Burton should be able to prevent [DHR] from pursuing [Woodruff] for child support.” Because these rulings were based upon the trial court’s application of the law to essentially undisputed facts, we apply a de novo standard of review to these rulings. See Maddox v. Schrader, 268 Ga. 661, n. 3 (492 SE2d 521) (1997).

1. Reimbursement. With respect to DHR’s ability to obtain reimbursement from Woodruff for past support payments made to the mother, OCGA § 19-11-5 provides that “[t]he payment of public assistance to or on behalf of a child creates a debt due and owing the state by the parent or parents responsible for the support of the child.” OCGA § 19-11-14 (a) provides that “[w]henever a man has been adjudicated by a court of competent jurisdiction or an administrative tribunal as the father of a child born out of wedlock or whenever he has acknowledged paternity under oath in an administrative hearing, in court, or by verified writing, he shall be legally liable for the support of the child in the same manner as he would owe the duty of support if the child were his child born in wedlock.”

It is undisputed in this case that Woodruff is the natural parent of J. W. Indeed, as the trial court stated in its written order, Woodruff acknowledged his paternity of the child. That Woodruff had taken no previous action to legitimate the child and had not previously been ordered to make child support payments does not affect his obligation to provide support for the child. See Weaver v. Chester, 195 Ga. App. 471-472 (393 SE2d 715) (1990) (holding that father’s obligation to support child born out of wedlock arises at birth and thus exists prior to any court order requiring such support). Under OCGA § 19-11-5, therefore, DHR is entitled to be reimbursed by the father for support payments made on the child’s behalf.

Apart from Woodruff’s direct liability to the state for reimbursement of public assistance benefits provided to the child, DHR is entitled to proceed against Woodruff as assignee of the mother. It is clear that a mother with custody of a child has the right to recover back child support payments from the non-custodial father upon a determination of the father’s paternity. See Weaver, supra. OCGA § 19-11-6 (a) provides that “[b]y accepting public assistance for or on behalf of a child or children, . . . the recipient shall be deemed to have made an assignment to [DHR] of the right to any child support owed for the child.”

In this case, DHR provided public assistance benefits to the mother on behalf of J. W. Pursuant to OCGA § 19-11-6 (a), the mother, as the recipient of the benefits, assigned to DHR her right to child support owed for the child. Accordingly, DHR is entitled to seek recovery from the father as assignee of the mother.

The fact that the mother opposes DHR’s collection efforts does not change this result. Nothing in the CSRA supports the proposition that a custodial parent who has received public assistance benefits from the state can prevent the state from exercising its statutory right to obtain reimbursement from the non-custodial parent. “The state has a real interest in recovering payments which would not have been made had the responsible parent lived up to his duty, and the purpose of [the CSRA] is to secure that reimbursement.” Dept. of Human Resources v. Bagley, 240 Ga. 306, 307 (240 SE2d 867) (1977). To allow the custodial parent to impede the state’s reimbursement efforts would frustrate the purpose of the statute and promote collusion between parents. Accordingly, the trial court erred in holding that the mother’s opposition precluded DHR from obtaining reimbursement for past public assistance payments.

2. Future Support. The trial court also erred in holding that the mother’s opposition precluded DHR from obtaining an order requiring the father to provide future support for the child.

At the time of the hearing, the mother was receiving, and expressed a desire to continue receiving, public assistance benefits. OCGA § 19-11-6 (a) provides that “[b]y accepting public assistance for or on behalf of a child or children, . . . the recipient shall be deemed to have made an assignment to [DHR] of the right to any child support owed for the child. [DHR] shall be subrogated to the right of the child or children or the person having custody to initiate any support action existing under the laws of this state and to recover any payments ordered by the courts of this or any other state.” (Emphasis supplied.) See also Dept. of Human Resources v. Brandenburg, 211 Ga. App. 715 (440 SE2d 498) (1994), overruled on other grounds, Dept. of Human Resources v. Offutt, 217 Ga. App. 823, 827 (459 SE2d 597) (1995).

The fact that the mother does not desire DHR to obtain an order requiring the father to provide future support, or allowing DHR to collect such support payments, does not change the fact that DHR is subrogated to the mother’s right to initiate a support action against the father and recover any court-ordered support payments. One of the principal purposes of such subrogation is to ensure that the state is reimbursed for public assistance benefits it is providing for the benefit of the child. See Bagley, supra. To allow a custodial parent, who is continuing to accept such benefits, to inhibit the collection of support obligations by the state would defeat this purpose. “AFDC recipients do not apply for nor request support enforcement services. They assign their child support rights to the state and are required to cooperate (unless good cause for refusing to do so is determined to exist) in whatever legal action the state undertakes. By assigning their child support rights in return for AFDC aid, they give the states the opportunity to recoup the financial drain imposed by the welfare system on the state and federal treasuries.” Wehunt v. Ledbetter, 875 F2d 1558, 1566 (11th Cir. 1989). Accordingly, the trial court erred in holding that the mother’s opposition precluded DHR from proceeding against the father for future support.

Decided September 24, 1998.

Thurbert E. Baker, Attorney General, Jeffrey L. Milsteen, Deputy Attorney General, William C. Joy, Dennis R. Dunn, Senior Assistant Attorneys General, Katherine S. Davis, Assistant Attorney General, for appellant.

Johnny B. Woodruff, Jr., pro se.

Because the trial court’s ruling was based on its erroneous application of the law, we must reverse and remand this case for further proceedings consistent with this opinion.

Judgment reversed and case remanded.

Pope, P. J., and Beasley, J., concur.

       Woodruff, as appellee, did not file a brief in this appeal, and is thus deemed to have admitted the facts as set forth by DHR in its brief. Candler Hosp. v. Carter, 224 Ga. App. 425 (480 SE2d 876) (1997).

       Although no transcript of Woodruff’s testimony is included in the record on appeal, we must assume that the trial court’s finding was supported by the evidence at the hearing. Lamb v. State, 185 Ga. App. 231, 232 (363 SE2d 863) (1987). Moreover, by failing to file a brief, Woodruff has admitted the statement in DHR’s brief that he admits his paternity. Candler Hosp., supra.

       We note that the trial court’s order indicates that Woodruff was living with Burton and the child, although it did not indicate whether this was a temporary or permanent arrangement. The trial court’s ruling was not based on the father’s residence, but on the mother’s opposition and the fact that the father had not previously legitimated the child or been ordered to pay support. Because the issue is not before us, we express no opinion as to whether the father’s residence with the mother and child affects the ability of DHR to obtain an order requiring child support from the father.


text:
    A98A1416, A98A1417.
    HIPPLE et al. v. SIMPSON PAPER COMPANY (two cases).
    (507 SE2d 156)
   Johnson, Presiding Judge.

Simpson Paper Company sued Robert J. Hippie, Robert J. Hippie & Associates, L.L.C., and Corporate Counsel, Inc. for rent due and trespass. Following a bench trial, the trial court awarded Simpson Paper Company judgment in the amount of $18,000. Subsequently, the trial court awarded Simpson Paper Company attorney fees in the amount of $8,530. Robert J. Hippie appeals the trial court’s judgments. For reasons which follow, we affirm.

Case No. A98A1416

1. Simpson Paper Company’s motion to dismiss based on Hippie’s failure to file his brief and enumerations of error is hereby denied. Hippie contends that he did not receive notice of docketing in Case No. A98A1416 and assumed the two cases were consolidated by the Court of Appeals. We note initially that Hippie filed two separate notices of appeal from two separate trial court orders and that the Court of Appeals’ file shows notices of docketing in both cases were sent to the address indicated. We further note that the Court of Appeals does not sua sponte consolidate cases when they are filed and send only one docketing notice. “ ‘It is fundamental that it is the duty of counsel who have cases pending in court to keep themselves informed as to the progress of the cases so that they may take whatever actions may be necessary to protect the interests of their clients. [Cit.]” Hipple v. Brick, 202 Ga. App. 571, 573 (3) (415 SE2d 182) (1992). Likewise, it is the responsibility of the attorney filing a notice of appeal to keep himself apprised of the status of his appeal.

Nevertheless, we are constrained by the language of OCGA § 5-6-48 as well as the mandate of OCGA § 5-6-30 that the appellate practice provisions be liberally construed “so as to bring about a decision on the merits of every case appealed.” Hippie did, in fact, file enumerations of error and a brief outlining all of his issues in both cases in Case No. A98A1417. We therefore will address Hippie’s enumerations of error.

2. In his first three enumerations of error, Hippie contends the trial court erred in refusing to grant his motion for judgment on the pleadings, to dismiss or, in the alternative, for summary judgment. The record shows that Hippie filed the motion at issue 12 days before trial. Uniform Superior Court Rule 6.6 specifies that “[mjotions for summary judgment shall be filed sufficiently early so as not to delay the trial. No trial shall be continued by reason of the delayed filing of a motion for summary judgment.” Hippie’s motion was not timely filed. Moreover, the trial court did not rule on the motion. “Without an order of the trial judge ruling either for or against [Hippie’s] motion, there is nothing for this court to pass on in that respect.” Quigley v. Quigley, 239 Ga. 250, 251 (1) (236 SE2d 603) (1977); Community Ed. Ctr. v. Cohen, 158 Ga. App. 456, 457 (2) (280 SE2d 839) (1981). We may not address issues on appeal which were not addressed by the trial court. White v. KFC Nat. Mgmt. Co., 229 Ga. App. 73, 74 (1) (493 SE2d 244) (1997); Security Mgmt. Co. v. King, 132 Ga. App. 618, 619 (1) (a) (208 SE2d 576) (1974).

3. Hippie also alleges as error the trial court’s grant of judgment in favor of Simpson Paper Company for trespass damages, claiming there was no evidence to support the judgment. However, Hippie has failed to provide this Court with a transcript of the evidence presented at the trial. In fact, his notice of appeal specifically states that “[a] transcript of evidence and proceedings will not be filed for inclusion in the record on appeal.” Since the resolution of Hippie’s enumeration of error requires this Court to have before it the evidence presented during the trial, we cannot determine whether Hippie’s enumeration of error has merit.

It is the appellant’s duty to provide this Court with a record sufficient to enable us to review his enumerations of error. In the absence of a transcript of the evidence, we must presume that the evidence authorized the judgment of the trial court. See Gillespie v. Gillespie, 259 Ga. 838 (388 SE2d 688) (1990); McClaskey v. Jiffy Lube, 197 Ga. App. 537 (398 SE2d 825) (1990). While Hippie cites facts from an affidavit he filed prior to trial in support of his motion to dismiss, these facts may not be used in lieu of a transcript. “The affidavit, deposition and oral testimony provisions of OCGA § 9-11-43 (b), pertaining to the hearing of motions based on facts not appearing of record, cannot be used to cure the absence of a transcript of proceedings for post-trial motions or for appellate review.” (Citation and punctuation omitted.) Beech Aircraft Corp. v. Jackson, 199 Ga. App. 627 (405 SE2d 518) (1991).

Case No. A98A1417

4. Simpson Paper Company’s motion to dismiss based on Hippie’s failure to timely file his amended brief is hereby denied. Hippie was granted an extension of time in which to file his amended brief and did so -within the time permitted in the extension order.

5. The only issue remaining in this case is whether the trial court erred in granting attorney fees to Simpson Paper Company pursuant to OCGA § 9-15-14 (b). That statute allows the trial court to assess reasonable and necessary legal fees and expenses when a party has defended a claim without substantial justification or has “unnecessarily expanded the proceeding by other improper conduct, including, but not limited to, abuses of discovery.” OCGA § 9-15-14 (b). Hippie contends the evidence does not support the award of attorney fees against him. We review the grant of attorney fees under OCGA § 9-15-14 (b) only for abuse of discretion. Santora v. American Combustion, 225 Ga. App. 771, 774 (2) (485 SE2d 34) (1997).

Hippie has failed to show that the trial court abused its discretion in awarding attorney fees to Simpson Paper Company. Despite Hippie’s claim that the trial court found “without explanation” that he had unnecessarily expanded the scope of the litigation, the trial court’s order clearly sets forth the grounds upon which it entered the award of attorney fees: “Among other things, the Court finds that Mr. Hippie was responsible for both Plaintiff’s and the Court’s difficulties in locating him for service of process and notice to him of hearings and other proceedings. Moreover, because Mr. Hippie was also attorney of record for the defense in this case, the fact that he was ‘out of the country’ at certain times did not excuse his failure to appear for hearings or take actions in a timely manner, because he did not file proper requests for leaves of absence. Moreover, Defendant’s conduct throughout this litigation, including discovery and at trial, greatly expanded this otherwise straightforward civil dispute. Such conduct falls well within the intended reach of subsection (b).”

Decided September 11, 1998

Reconsideration denied September 25, 1998

Robert J. Hippie, for appellants.

Nelson, Mullins, Riley & Scarborough, Sara S. Turnipseed, Donald L. Swift III, Barry Staples, L. Chandler Vreeland, for appellee.

In his brief, Hippie attempts to dispute the grounds upon which the trial court based its order. However, “this court cannot consider in the appellate process either mere allegations of fact found in a party’s pleadings, not admitted by the opposing party, or factual assertions in the parties’ briefs, when such allegations and assertions are not supported by the record. [Cit.]” Nodvin v. West, 197 Ga. App. 92, 96 (3) (c) (397 SE2d 581) (1990). A brief cannot be used in lieu of the record or transcript for adding evidence to the record; we must take our evidence from the record and not from the brief of either party. Id. at 97. Moreover, the trial court’s order was partially based on Hippie’s conduct at trial. Without a transcript of those proceedings, it is impossible for this Court to determine whether the trial court abused its discretion in determining that Hippie’s conduct justified an award of attorney fees. Stedry v. Mitchell, 201 Ga. App. 682, 684 (2) (411 SE2d 735) (1991). Thus, this Court must affirm the trial court’s award of attorney fees pursuant to OCGA § 9-15-14 (b).

Judgments affirmed.

Smith, J., and Senior Appellate Judge Harold R. Banke concur.

       While Hippie filed a motion to postpone trial with this motion, the trial court did not rule on either motion. Hippie does not enumerate as error the trial court’s failure to enter an order on either motion.


author: JOHNSON, Presiding Judge.

text:
    A98A1445.
    ROBINS FEDERAL CREDIT UNION et al. v. BRAND et al.
    (507 SE2d 185)
   JOHNSON, Presiding Judge.

Following the grant of their application for interlocutory review, Robins Federal Credit Union and Edward Levins (the credit union) appeal a state court order denying their second motion for summary judgment. The credit union is a federal credit union chartered pursuant to the Federal Credit Union Act, 12 USC § 1751.

This suit arises from claims of wrongful termination, tortious interference with shareholder rights, and breach of fiduciary duty. The credit union and Levins removed the action to federal court. However, the United States District Court granted a motion to remand brought by appellee credit union employees, D. Ronnie Brand, Peggy Correia, Harry Moore and Duncan Smith. The District Court held that the employees had no right of action under the Federal Credit Union Act, 12 USC § 1751 et seq., and that upon remand, the state court would be limited to a consideration of the employees’ right to relief under Georgia law. Brand v. Robins Fed. Credit Union, 969 FSupp. 778, 780 [6, 7] (M.D. Ga. 1997).

The issue in the present case is whether the credit union employees were terminable at will or are afforded protection against discharge under Georgia law because they are employees of a federal agency. The trial court concluded inter alia that: (i) the credit union was an agency of the federal government and not a private employer, (ii) the credit union employees were quasi-government employees and had a vested property interest in their employment, and (iii) the credit union employees could not be fired without cause (thereby impliedly recognizing a public policy exception for quasi-government employees to the “at will” statute, OCGA § 34-7-1). For reasons that follow, we reverse this ruling by the trial court.

1. Is the Robins Federal Credit Union a federal agency? After a thorough review of both Georgia and federal law, we conclude that it is not.

The term “federal credit union” means a cooperative association organized in accordance with Chapter 14, 12 USC § 1751 et seq., for the purpose of promoting thrift among it members and creating a source of credit for provident or productive purposes. 12 USC § 1752 (1). The control and management of a federal credit union are not vested in the federal government but in its membership and their duly elected board of directors. Jesinger v. Nevada Fed. Credit Union, 24 F3d 1127, 1132 [4, 5] (9th Cir. 1994). Although credit unions are subject to a unique amount of governmental control under the Federal Credit Union Act, they are not federal agencies. See id.; Cuenca v. Safeway &c. Fed. Credit Union, 225 Cal. Rptr. 852, 857 (8) (Cal. App. 1986); see also Northeast Fed. Credit Union v. Neves, 837 F2d 531, 535 (4) (1st Cir. 1988); cf. Morast v. Lance, 807 F2d 926, 929 (2), (3) (11th Cir. 1987).

2. Under Georgia law, a public employee has a property right interest in his or her job whenever the employee may be dismissed only for cause. Maxwell v. Mayor &c. Savannah, 226 Ga. App. 705, 707 (1) (487 SE2d 478) (1997). This is a recognized “public employees” exception to the at-will statute, OCGA § 34-7-1. However, as federal credit unions are not federal agencies, employees of federal credit unions are not public employees within the meaning of OCGA § 34-7-1, and no exception to this statute exists to which the credit union employees can claim benefit. We cannot agree with the contention that there exists a class of “quasi-public employees” who should be included within the “public employee” exception to OCGA § 34-7-1.

Judicially created exceptions to OCGA § 34-7-1 or any other statute are not favored under Georgia law. This principle applies even when termination of employment is alleged to have been in retaliation for legitimate employee conduct. For example, in Evans v. Bibb Co., 178 Ga. App. 139 (1) (342 SE2d 484) (1986), this Court would not judicially create “a public policy exception to an employer’s right to discharge an employee at will when the right is exercised in retaliation for the employee’s assertion of his rights” under the Georgia Workers’ Compensation Act. “The courts of this state have consistently held that they will not usurp the legislative function and, under the rubric that they are the propounders of ‘public policy,’ undertake to create exceptions to the legal proposition that there can be no recovery in tort for the alleged ‘wrongful’ termination of the employment of an at-will employee. . . . Georgia courts have refused to acknowledge any exceptions not encompassed by OCGA § 34-7-1, and in the absence of any express statutory provision for such a civil remedy, we decline to create judicially such a remedy.” (Citations and punctuation omitted.) Jellico v. Effingham County, 221 Ga. App. 252, 253 (471 SE2d 36) (1996); accord Borden v. Johnson, 196 Ga. App. 288, 289-290 (1) (395 SE2d 628) (1990); Evans, supra.

3. The credit union employees, principally relying upon a broad interpretation of Cleveland Bd. of Ed. v. Loudermill, 470 U. S. 532 (105 SC 1487, 84 LE2d 494) (1985), contend that they were vested with property rights in their employment pursuant to various provisions of the Federal Credit Union Act and therefore have a right of action for wrongful termination under Georgia law. We disagree.

As determined in Brand, supra, the credit union employees had no express or implied private right of action under the Federal Credit Union Act. If the Federal Credit Union Act had created any form of property right in their employment, the employees’ termination should have resulted in a cause of action arising under the Act.

Since the credit union was not a public agency and since the credit union employees were not public employees under Georgia law, the employees cannot claim a public employee exception to the employment at-will statute. Moreover, mere status as a public employee would not, standing alone, support the granting of a public policy exception. Compare Maxwell, supra at 707 (1), where a public employee was found to have a sufficient property right in his employment because he could only be terminated for good cause.

Loudermill, supra at 538, held that property interests are not created by the Constitution but are created and their dimensions are defined “ 'by existing rules [and] understandings that stem from an independent source such as state law.’ ” This holding is silent regarding whether a provision of the Federal Credit Union Act could constitute “an independent source” creating a property right in private sector employment which, although insufficient to give rise to an express or implied right of action under the Act, could give rise to a state cause of action for wrongful termination. However, in Warren v. Crawford, 927 F2d 559, 562 (3) (11th Cir. 1991), it was held: “The Fourteenth Amendment protects against the government’s deprivation of liberty or property without procedural due process. [Cit.] State law determines whether a public employee has a property interest in his or her job. [Cit.]” (Emphasis supplied.) If state law determines whether a public employee has a property interest in his or her employment, it also will be determinative whether a private sector employee has a property interest. Under existing Georgia law, there is no public policy exception to OCGA § 34-7-1 in favor of the credit union employees. Finally, we note that Loudermill, relied upon by appellees, is distinguishable on its facts; Loudermill was classified as a civil servant under Ohio law and by state statute could only be terminated for cause.

Decided September 17, 1998

Reconsideration denied September 25, 1998

Jackson, Lewis, Schnitzler & Krupman, Dion Y. Kohler, Mary E. Sharp, for appellants.

Sell & Melton, Joseph W. Popper, Jr., Kevin T. Brown, for appellees.

Judgment reversed.

Smith, J, and Senior Appellate Judge Harold R. Banke concur.


text:
    A98A1730.
    THE STATE v. ROBERTS.
    (507 SE2d 194)
   Johnson, Presiding Judge.

In this case, the trial court granted Rebecca Roberts’ motion to quash, finding the facts in the indictment were insufficient to constitute a crime. The state appeals. We reverse.

The indictment at issue, which charges Roberts and two other individuals with child molestation and cruelty to children, states that Roberts “did act as a party to the crime in that she did aid, abet and encourage [two other individuals] by her failure to take steps to protect [her] child and by her failure to report said abuse.”

1. Roberts moves this Court to dismiss the appeal as moot since the two other individuals with whom Roberts was indicted as a party to a crime were each acquitted of all charges against them. However, in Georgia, “[a]ny party to a crime who did not directly commit the crime may be indicted, tried, convicted, and punished for commission of the crime upon proof that the crime was committed and that [s]he was a party thereto, although the person claimed to have directly committed the crime . . . has been acquitted.” OCGA § 16-2-21. Thus, while the acquittal of the principals may be introduced by Roberts as some evidence that she did not aid, abet, or encourage any crime of child molestation or cruelty to children, it does not preclude her from being indicted, tried, convicted or punished for commission of the crime. See White v. State, 257 Ga. 236 (356 SE2d 875) (1987). Roberts’ motion to dismiss is denied.

2. The state argues that the trial court erred in quashing Roberts’ indictment because her presence and failure to act equals aiding and abetting and subjects Roberts to criminal liability. “[A]n indictment is insufficient to withstand a demurrer if all of the facts which the indictment charges can be admitted and still the accused is innocent, but the indictment is sufficient, if taking the facts alleged as proven, the guilt of the accused follows as a legal conclusion.” (Citations omitted.) State v. Pattee, 201 Ga. App. 690, 692 (411 SE2d 751) (1991).

While the indictment is not artfully crafted, we cannot agree with the trial court’s conclusion that the indictment does not allege a crime under the laws of the state of Georgia. The counts of the indictment specifically allege facts constituting child molestation and cruelty to children. They also allege that Roberts aided, abetted and encouraged such conduct by failing to protect her child and failing to report the conduct. Contrary to the trial court’s finding, the indictment does not allege mere presence at the scene. The indictment specifies that Roberts aided, abetted and encouraged the two individuals charged with committing child molestation and cruelty to children. Aiding, abetting and encouraging plainly denotes knowledge on the part of the accused. Moreover, the state correctly notes that OCGA § 19-7-2 gives a parent a duty to protect his or her child. The indictment is sufficient in that it alleges acts which if committed would violate the law of this state. See Pattee, supra.

Judgment reversed.

Smith, J, and Senior Appellate Judge Harold R. Banke concur.

Decided September 17, 1998

Reconsideration denied September 25, 1998

Timothy G. Madison, District Attorney, Robin R. Riggs, Assistant District Attorney, for appellant.

Macklyn A. Smith, for appellee.


author: Beasley, Judge.

text:
    A98A0893.
    PAYNE et al. v. KANES.
    (507 SE2d 266)
   Beasley, Judge.

Edward Vanderslice and his tax attorney/financial advisor, Panos Kanes, brought this abusive litigation action against Mr. Vanderslice’s former wife, Patricia Payne Vanderslice, and her brother Doyle Payne, as a result of Ms. Vanderslice’s suit for fraud against them. The large record in this case, and the nature of it, require cutting a clear path through a dense thicket.

Payne was included as a defendant in this action because he allegedly took an active part in the prior litigation even though he was not an actual party. He sought partial summary judgment on the ground that plaintiffs had not provided him with notice of their intent to assert an abusive litigation claim against him during the pendency of the earlier action, as required by OCGA § 51-7-84 (a). Plaintiffs and defendant Patricia Vanderslice filed cross-motions for summary judgment on the merits. The trial court granted Kanes’ motion and denied the others’ motions. Defendants appeal the summary judgment to Kanes.

The Vanderslices’ 1984 divorce decree directed Mr. Vanderslice to create a trust with life insurance death benefits of $315,000 to fund his $2,500 monthly alimony obligation after his death. The trust specified that the policy was to be purchased either by (a) a single premium to be paid at the inception of the policy, or (b) an annual premium over a period of less than ten years, in which case payment of future premiums would be secured by certain collateral. Kanes represented Mr. Vanderslice in his selection and purchase of the life insurance policy.

Mr. Vanderslice told Ms. Vanderslice that he had decided to purchase a policy from Prudential Insurance Company through a single-premium payment in the amount of $77,533.11. She was not informed that this single premium due at the October 27,1984 inception of the policy represented the discounted value of $14,650.45 annual premiums due for the first seven years and that, under the policy, Mr. Vanderslice remained liable for annual premiums in the same amount from October 27, 1991, until October 27, 2005, at which time such premium increased to $24,207.55. His statement to her that the policy would be funded by a single premium was based on Prudential’s representation to him that dividends accruing on the original premium would be sufficient to fund future payments. As a result of Ms. Vanderslice’s approval of this policy, the security for future premium payments was released by the trustee.

Mr. Vanderslice later received a notice from Prudential that in order to maintain the life insurance, he would have to begin making annual premium payments in the amount of $14,650.45 beginning on the October 1991 date. In a letter to Kanes, a Prudential representative conceded that this was contrary to Mr. Vanderslice’s original intent in purchasing the policy, but he stated that the additional payments were due to unforeseen changes in the economic environment.

After receiving this notice, Mr. Vanderslice asked Ms. Vanderslice to agree to a modification of the divorce decree. He informed Kanes that Ms. Vanderslice had agreed to modify the decree so as to terminate the trust but she did not want to incur any legal expenses in the process. As a result, Kanes referred Ms. Vanderslice to attorney Richman, who was paid by Mr. Vanderslice to represent her in the modification proceeding. In October 1992, the court entered a consent order terminating the trust pursuant to a modification agreement. The agreement recognized as the reason for the modification that Prudential had “announced a substantial and unexpected increase in the premiums to be charged.” Mr. Vanderslice’s attorney during the modification process was Davis.

In the spring of 1994, Mr. Vanderslice asked Ms. Vanderslice to agree to a termination of his alimony obligations because he could no longer afford them. She began to question the truth of his earlier statements concerning the premium increase. Through her brother, Doyle Payne, Ms. Vanderslice retained attorney Hughes to investigate. Communications took place between Payne and Hughes, mostly through three-way telephone conversations which included Ms. Vanderslice. In June, Hughes received a letter from Prudential explaining the terms of the policy and stating there had been no increase in the premiums. After reading the letter and policy, Ms. Vanderslice authorized Hughes to institute legal proceedings alleging misrepresentations concerning the premium increase. Hughes testified that, with Payne’s approval, he decided what claims to assert and whom to name as defendants.

A few months later, in September, Ms. Vanderslice filed suit against Mr. Vanderslice, attorney Davis, and Kanes. The complaint alleged that Kanes had falsely represented to her, her attorney Rich-man, and the court that the policy premiums had substantially and unexpectedly increased, and that he made such representations either knowing they were false or with conscious and reckless disregard of the consequences of his failure to investigate their truthfulness. Although no claim for legal malpractice was asserted, an affidavit executed by attorney Garvin was attached to the complaint. Based on his review of the pleadings in the fraud action, his opinion was that Kanes had been negligent in allowing misrepresentations to be made to Ms. Vanderslice.

After suit was filed, Hughes received a letter notifying him and his client of the claim that allegations of fraud in the underlying complaint constituted abusive litigation. With respect to Kanes, the letter stated that he had not had any conversations with Ms. Vanderslice and was not the attorney of record in the modification proceeding. Hughes delivered the letter to Payne with a recommendation that the action be dismissed without prejudice so further investigation could be conducted. Payne could have accepted this recommendation on his own authority, as he had been given a general power of attorney by his sister. Instead, he said he ££want[ed] to think about it and talk to Ms. Vanderslice about it and get back to [Hughes].” After consulting with Ms. Vanderslice, Payne informed Hughes that his representation was being terminated, and that he and Ms. Vanderslice were in the process of obtaining new counsel. The suit was later dismissed without prejudice. When attorney Garvin was deposed in this suit, he withdrew his affidavit against Kanes.

1. Defendants first contend the court erred in granting summary judgment to Kanes against Payne because he was not provided with the notice required by OCGA § 51-7-84 (a). It provides:

“As a condition precedent to any claim for abusive litigation, the person injured . . . shall give written notice ... to any person against whom such injured person intends to assert a claim for abusive litigation and shall thereby give the person against whom an abusive litigation claim is contemplated an opportunity to voluntarily withdraw, abandon, discontinue, or dismiss the civil proceeding. . . .”

It is undisputed that Kanes did not give written notice that he intended to sue Payne for abusive litigation; rather, he gave notice only of his intent to sue Patricia Vanderslice. Although Payne’s involvement in the original fraud action had not been revealed to Kanes when the notice was sent, OCGA § 51-7-84 (a) does not create any exception to the notice requirement in such circumstances. Once Kanes decided to pursue an abusive litigation claim, he bore the obligation of determining against whom to assert it. Because Payne was not identified as a potential abusive litigation defendant in the letter sent to his sister, he was not alerted to the possibility of a lawsuit being brought against him and thus was not given the notice which the statute requires.

“Here, [Payne] as one who took ‘an active part’ but was not an actual party, was entitled to be particularly specified in the letter as the one against whom [Kanes] would seek damages ... if the [complaint] were not withdrawn or dismissed.” “ ‘The abusive litigation tort set forth in OCGA § 51-7-80 et seq. is in derogation of the common law, and must be strictly limited to the meaning of the language used, and not extended beyond the plain and explicit statutory terms.’ [Cifi]” By its plain terms, OCGA § 51-7-84 (a) requires notice as a condition precedent to an abusive litigation claim. Due to the lack of required notice, the trial court erred in granting summary judgment to Kanes on his abusive litigation claim against Payne (and in denying Payne’s motion for partial summary judgment).

2. Defendants contend that because genuine issues of fact exist as to whether Ms. Vanderslice’s claims against Kanes were asserted in good faith, he was not entitled to summary judgment.

Good faith is a complete defense but it is “an affirmative defense and the burden of proof shall be on the person asserting the actions were taken in good faith.” OCGA § 51-7-82 (b). Ms. Vanderslice could show she acted in good faith if “to the best of [her] or . . . her attorney’s knowledge, information, and belief, formed honestly after reasonable inquiry,” her fraud claim was “well grounded in fact” and “warranted by existing law.” OCGA § 51-7-80 (4).

In her complaint, Ms. Vanderslice alleged that Kanes had made false representations concerning the insurance policy to her, the divorce court, and her attorney Richman.

(1) Ms. Vanderslice acknowledged she did not meet Kanes until the discovery stage of this suit, thereby conceding he made no representations to her upon which the defense of good faith could be founded. (2) As to Ms. Vanderslice’s contention that a jury could find that Kanes made misrepresentations to the court based on evidence showing he drafted the 1992 modification agreement, Kanes testified without contradiction that he composed an earlier version of the agreement but not the final draft, and the earlier draft is not in the record. So this provides no evidence in support of a fraud claim. (3) But attorney Richman testified that his understanding that the premiums had increased was based on statements made by both Kanes and Ms. Vanderslice concerning representations made by Mr. Vanderslice to them. This testimony provides some evidence from which a jury could find that Kanes made misrepresentations to Ms. Vanderslice’s lawyer concerning the premium increase. If so, there is evidence the fraud claim was brought in good faith. Whether attorney Richman relied on such misrepresentations is an open question of fact.

Decided September 25, 1998

Jones, Copeland, Lefkowitz & Greer, Taylor W. Jones, Linda R. Greer, for appellants.

Wilson, Morton & Downs, Robert E. Wilson, Ogletree, Deakins, Nash, Smoak & Stewart, Allen W. Groves, for appellee.

Therefore, the court also erred in granting summary judgment to Kanes on his claim against Ms. Vanderslice.

Judgment reversed.

Pope, P. J., and Ruffin, J., concur.

        Talbert v. Allstate Ins. Co., 200 Ga. App. 312, 314 (2) (408 SE2d 125) (1991).

        Owens v. Generali — U. S. Branch, 224 Ga. App. 290, 292 (1) (480 SE2d 863) (1997); Paino v. Connell, 207 Ga. App. 553 (2) (428 SE2d 446) (1993). See generally Heard v. Neighbor Newspapers, 259 Ga. 458, 459 (5) (a), (b) (383 SE2d 553) (1989). In both Owens and Talbert, supra, n. 1, the defendants’ involvement in the underlying litigation was known when the notice was provided; the fact that Payne’s involvement was not known until after his sister’s fraud action terminated makes no difference.

       For one view of Georgia’s sanctions against frivolous litigation, see Byron C. Keeling, “Toward a Balanced Approach to ‘Frivolous’ Litigation: A Critical Review of Federal Rule 11 and State Sanctions Provisions,” 21 Pepperdine L. Rev. 1067, 1106-1109 (1994).