text:
    A98A2210.
    SINGLETON v. THE STATE.
    (508 SE2d 461)
   Johnson, Presiding Judge.

Following a bench trial, Octavius Singleton was found guilty of possession of cocaine and giving a false name to a law enforcement officer. On appeal, he claims the trial court erred by denying his motion to suppress evidence seized at the time of his arrest. We find no error and affirm the convictions.

The facts are not in dispute. Two police officers were on routine patrol at 3:00 a.m. in an area known for drug trafficking. They saw several people standing near an apartment building, all of whom ran into the complex upon seeing the patrol car. The officers pulled into the complex and saw a car that was backed into a dark area of the parking lot. When neither of the two occupants exited the vehicle after several minutes, the officers approached the car and asked for identification. The passenger, Singleton, indicated he had no identification, appeared very nervous and kept his right hand beside his leg in the dark. Concerned for his safety, one of the officers asked Singleton to step out of the car. As he got out of the car, Singleton dropped a plastic bag containing individually packaged chunks of crack cocaine onto the passenger seat in plain view. Singleton was arrested, and a search incident to his arrest revealed more individually packaged bags of cocaine on the passenger’s side of the car and a weapon under the driver’s seat.

Singleton moved to suppress the evidence on the basis of State v. White, 197 Ga. App. 426 (398 SE2d 778) (1990). In White, the trial court suppressed evidence seized from an individual sitting in a car in his own driveway with two other people at 10:00 at night. This Court upheld the decision on the basis that the officers had no reason to suspect them of any wrongdoing. However, in the present case, the men were sitting in a remote section of an apartment complex at 3:00 a.m. Both the apartment complex and the area in general were known for their high drug activity. Given these facts, the present case is on all fours with Bozeman v. State, 196 Ga. App. 743 (1) (397 SE2d 30) (1990).

In Bozeman, an officer observed a car in a remote area of a hotel parking lot at 4:45 a.m. When the officer approached the car and asked the passengers to step out, he saw drugs in plain view. In upholding the trial court’s denial of the motion to suppress, this Court held that the officer’s “observance of the appellant and his companions sitting for no apparent reason in a parked automobile in a remote part of a motel parking lot located in a ‘high crime area’ at 4:45 a.m. was sufficient to excite a reasonable suspicion that criminal activity might be afoot.” Id. at 743-744. Consequently, we held that the officer was authorized to conduct a brief on-the-scene investigative detention pursuant to Terry v. Ohio, 392 U. S. 1 (88 SC 1868, 20 LE2d 889) (1968), to maintain the status quo while asking the men what they were doing there. In so doing, the officer observed the contraband in plain view inside the vehicle. Id.

The facts in the present case are even more compelling than Bozeman. In Bozeman, the officer asked the driver to get out of the car, for no apparent reason, and then asked him what he was doing there. Unsatisfied with the response, he opened the door to the passenger side of the car and asked the passengers to get out of the vehicle. He then observed the drugs in plain view In the present case, the officers approached Singleton’s vehicle and, after observing Singleton’s nervous demeanor and the way he kept his hand at his side on the seat, asked him to get out of the vehicle because they feared he might have a weapon. The officer took this minimally intrusive step to protect himself. Compare Brown v. State, 269 Ga. 830 (504 SE2d 443) (1998). As Singleton was complying with the officer’s reasonable request, he dropped the plastic bag containing individually packaged bags of cocaine and the officer observed the contraband in plain view. According to the officer, the substance appeared to be cocaine based on his past experiences and the way it was packaged.

Singleton correctly notes that his mere presence in a known drug area, without more, is insufficient to support a reasonable suspicion that he was engaged in or about to engage in criminal activity. See Barnes v. State, 228 Ga. App. 44, 46 (491 SE2d 116) (1997); State v. King, 227 Ga. App. 466 (489 SE2d 361) (1997).

In Barnes, we reversed the trial court’s denial of a motion to suppress because the police were unable to articulate any cogent basis for detaining the appellant or conducting a pat-down search. In Barnes, the officers observed the appellant standing in a high crime area. When the appellant noticed the officers, he began walking away. The officers stopped him and asked what he was doing in the area. Unsatisfied with the answer and noting that he was acting suspiciously and was “ ‘holding something in his hand with a rag,’ ” the officers asked him to place his hands on the car and conducted a pat-down search. We held that an investigative stop must be justified by some objective manifestation that the person is, or is about to be, engaged in criminal activity. The officers’ claim that Barnes was acting suspiciously was not, by itself, a sufficient basis for any type of investigatory stop.

Decided November 2, 1998

John O. Ellis, Jr., for appellant.

J. Tom Morgan, District Attorney, Robert M. Coker, Assistant District Attorney, for appellee.

Likewise, in King, the appellant was standing in an extremely high drug area at 1:30 a.m. in 20 degree weather. After an hour, police approached the appellant and asked if he lived in the apartment complex. The appellant stated he did not. The police then asked what he was doing in the area. Not satisfied with the appellant’s answer, the police asked him to turn around and raise his hands. They then conducted a pat-down search for weapons. We concluded the trial court did not err in granting the appellant’s motion to suppress because there was no evidence that the appellant was, or was about to be, involved in criminal activity or that he was armed and presented a danger to himself or others.

In the present case, as distinguished from Barnes, there were many facts justifying the officer’s approach of the vehicle in which Singleton was sitting, including the time of day, the location in which the vehicle was parked in the lot, and the high crime area. Furthermore, as distinguished from King, the officers were justified in asking Singleton to step out of the car and in conducting a pat-down search for weapons based on Singleton’s demeanor and the way he positioned his hand by his side in the dark.

In reviewing a trial court’s decision on a motion to suppress, the evidence is construed most favorably to uphold the findings and judgment of the trial court. See State v. Williams, 220 Ga. App. 100, 102 (2) (469 SE2d 261) (1996). Because there was sufficient evidence to support the trial court’s order, we find no error.

Judgment affirmed.

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


source: Caselaw Access Project

author: Smith, Judge.

license: Public Domain

text:
    A98A2272.
    WALKER v. THE STATE.
    (508 SE2d 465)
   Smith, Judge.

A jury found Edward Walker guilty of the misdemeanor offense of obstruction of an officer. He appeals, contending the evidence was insufficient to support his conviction because the State failed to prove the officer was acting in the lawful discharge of his duties and also failed to prove a knowing and wilful obstruction of justice by Walker. We disagree and affirm his conviction.

Construed in favor of the jury’s verdict, the evidence shows that Chief Deputy Sheriff Thompson responded to a domestic dispute call made by an unknown female caller. When Thompson arrived at the address provided, he noticed Walker standing in the doorway of a mobile home. As he approached Walker, Walker stated that Beverly Carter had cut his arm several times with a kitchen knife and showed Thompson several slight cuts on his arm. Thompson then entered the home and saw furniture in disarray and a bedroom door that had been kicked in. When he asked Walker about the location of Beverly Carter, Walker told him that Carter and her son Lester had climbed out the bedroom window and driven to a relative’s home.

After receiving this information, Thompson drove to the relative’s home, talked with Lester Carter and learned that Beverly Carter was returning to the mobile home to talk with Walker. Lester confirmed that Walker and Lester’s mother had fought and that his mother had obtained a kitchen knife to protect herself. When Lester and his mother fled into the bedroom, Walker began kicking the bedroom door down, causing them to crawl out of the bedroom window, get into a car and leave.

Thompson drove back to the mobile home, walked up to the closed door, listened, and heard Walker shouting obscenities at Beverly Carter. When Walker realized that Thompson had returned, he opened the door and stood in the doorway. Because there were three steps leading up to the door, the floor of the trailer was level with Thompson’s chest. Thompson asked Walker “to come down outside.” Walker did not comply; instead, he told Thompson that Carter had a knife. Thompson walked up the steps and took a knife out of Carter’s back pocket.

After Thompson removed the knife, Walker complied with a second request by Thompson for Walker to come down into the yard. Thompson then asked Walker to turn around and place his hands against the trailer because Thompson wanted to protect himself and search Walker for weapons. Walker started to comply by turning around and placing his hands against the trailer. However, when Thompson approached him, he spun around to face Thompson and said, “[N]o, I’m not going anywhere.” Thompson backed up and again told Walker to turn around and place his hands against the trailer. Walker started to comply, but again spun around as Thompson approached him. The third time Thompson told Walker to turn around, he pulled out his pepper spray and warned Walker that he would use it and charge him with obstruction of an officer if he did not comply. When Walker failed to comply, Thompson sprayed him. Walker became “very combative” and struggled with Thompson until he was able to place him in handcuffs.

Decided November 2, 1998.

Ronald L. Beckstrom, for appellant.

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

Thompson testified that he took this action because he was concerned about the safety of himself and Beverly Carter. There was no available backup and he knew that Carter had earlier felt the need to escape through the bedroom window even though she was armed with a knife.

We find this evidence was sufficient to authorize the jury to convict Walker of obstruction of an officer under the standard set forth in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). Thompson was acting in the lawful discharge of his duties when he attempted to search Walker for weapons. A law enforcement officer is authorized to conduct a pat-down search of an individual when he “ ‘reasonably believes him to be armed or otherwise dangerous to the officer or others.’ ” Lambright v. State, 226 Ga. App. 424, 427 (2) (487 SE2d 59) (1997). See also Howard v. State, 220 Ga. App. 579, 581 (1) (469 SE2d 746) (1996). The evidence also supports the conclusion that Walker’s conduct was knowing and wilful. See Patterson v. State, 191 Ga. App. 359 (1) (381 SE2d 754) (1989), overruled on other grounds, Duke v. State, 205 Ga. App. 689, 690 (423 SE2d 427) (1992).

Judgment affirmed.

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


author: Andrews, Chief Judge.

text:
    A98A1072.
    TRUITT v. HOUSING AUTHORITY OF THE CITY OF AUGUSTA.
    (507 SE2d 781)
   Andrews, Chief Judge.

In this action for writ of possession by the Housing Authority of the City of Augusta (Housing Authority), Mershell Truitt, the tenant, appeals from the trial court’s order striking her Answer and delivering possession of the apartment to the Housing Authority. For the reasons which follow, we affirm.

This case arose when Truitt’s son was arrested and charged with possession of crack cocaine and marijuana. Truitt’s lease with the Housing Authority provided that any drug-related criminal activity on public housing property by tenants or members of their households was a violation of the terms of the lease and grounds for eviction.

The Housing Authority filed a dispossessory affidavit and Truitt answered, demanding a jury trial. Voir dire and jury selection were set for May 27 and the trial was scheduled for May 28.

Truitt did not appear in court on May 27 for the voir dire and jury selection. The trial judge told counsel that he would, in his discretion, accept that she was not present that day; but, that “[s]he better be here tomorrow; she better be here on time. If she’s one minute late I will — it will not be within my discretion.”

The next day, at 10:00 a.m., the judge called the case for trial and after plaintiff announced ready, asked, “Is defendant ready, Mr. Belk?” Defense counsel replied, “No, Your Honor.” When the judge asked where Ms. Truitt was, defense counsel replied, “I’m unable to locate her, Your Honor.” At that point, counsel for the Housing Authority moved that Truitt’s Answer be stricken and judgment entered for the Housing Authority. Defense counsel requested that the judge continue the trial for a few minutes, but the judge refused and granted the Housing Authority’s motion to strike the Answer.

Truitt walked in five minutes late, just after the judge granted the motion to strike the Answer. Truitt said she was late because she was waiting for her sister to pick her up. The court said that excuse was not acceptable and let stand the judgment and writ of possession to the Housing Authority.

Truitt argues on appeal that striking her Answer and entering judgment for the Housing Authority is not an appropriate sanction for appearing five minutes late on the day of trial. But, the facts show that Truitt also was not present when the trial was called the day before and had been ordered by the court to appear on time and not one minute late. That Truitt’s presence was necessary for the trial to proceed is apparent from defense counsel’s reply that the defense was not ready when the case was called.

In making its ruling, the trial court stated .it was relying on Superior Court Rule (“USCR”) 10.4 which provides that no one but the judge may excuse a party, a witness, or an attorney from the courtroom during the course of the trial. But, this rule neither requires a party to appear in court nor does it authorize the trial court to impose this sanction for failure to do so. Masonry Standards v. UPS Truck Leasing, 257 Ga. 743, 744 (363 SE2d 553) (1988).

The Housing Authority argues the court may strike the Answer under USCR 14 which provides: “On its own motion or upon motion of the opposite party, the court may dismiss without prejudice any civil action, or where appropriate, any pleading filed on behalf of any party upon failure to properly respond to the call of the action for trial or other proceeding.” But, USCR 14 provides for the dismissal of a pleading where appropriate for failure to respond to a calendar call. It does not provide for a final adjudication on the merits. Kraft, Inc. v. Abad, 262 Ga. 336 (417 SE2d 317) (1992); Fulton v. State of Ga., 183 Ga. App. 570, 572 (359 SE2d 726) (1987).

The trial court may enter a default judgment against a defendant who fails to appear and defend at trial. See, e.g., Dunn v. Duke, 216 Ga. App. 829, 830 (456 SE2d 65) (1995); Harris v. Wilwat Properties, 201 Ga. App. 161 (410 SE2d 372) (1991); Abercrombie v. Miller, 191 Ga. App. 858 (383 SE2d 358) (1989); Aycock v. Hughes, 189 Ga. App. 838 (377 SE2d 689) (1989); Miller v. Grier, 175 Ga. App. 91 (332 SE2d 323) (1985). Although this Court has held that the striking of defensive pleadings and the entry of default judgment “is a harsh sanction,” Serwitz v. Gen. Elec. Credit Corp., 184 Ga. App. 632, 633 (362 SE2d 439) (1987), we also acknowledge the “inherent power of the trial court who is charged with the efficient clearing of cases upon the court’s docket.” Roberts v. Rountree, 180 Ga. App. 302, 303 (348 SE2d 765) (1986). Further, OCGA § 15-1-3 provides that every court has the power to compel obedience to its orders and to control the conduct of everyone connected with a judicial proceeding before that court. OCGA § 15-1-3 (3) and (4).

Boyd v. Crawford, 231 Ga. App. 169 (498 SE2d 762) (1998), is not to the contrary. In Boyd, a de novo appeal of a probate court judgment, we held the trial court improperly entered judgment for the defendant after the plaintiff failed to attend the hearing. The issue in Boyd was controlled by OCGA § 9-11-41 (b) (1) which limits the court to dismissing the plaintiff’s complaint without prejudice. Boyd, supra at 170-171. In addition, there was no prior failure to appear and no disregard of a direct order of the trial court, as there was in this case.

Here, the court allowed Truitt to explain why she was late. After listening to the explanation, the court stated that it did not find her explanation acceptable. Therefore, the trial court was authorized to find that in spite of sufficient prior notice that she must appear for trial no later than 10:00 a.m., Truitt’s failure to appear on time was the result of her own failure to exercise due diligence. Abercrombie, supra at 859. See also Wilwat Properties, supra at 161.

Judgment affirmed.

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

Decided September 21, 1998

Reconsideration denied November 3, 1998

LamontA. Belk, Sheryl L. Hudson, Susan A. Reif, Phyllis J. Holmen, Lisa J. Krisher, for appellant.

Hull, Towill, Norman & Barrett, Edward J. Tarver, David E. Hudson, for appellee.


text:
    A98A1248.
    McCALLA, RAYMER, PADRICK, COBB, NICHOLS & CLARK v. C.I.T. FINANCIAL SERVICES, INC. et al.
    (508 SE2d 471)
   Smith, Judge.

This interpleader action was filed by the law firm of McCalla, Raymer, Padrick, Cobb, Nichols & Clark (“McCalla Raymer”), seeking to determine the proper disbursement of surplus funds in the amount of $15,710.97 from a foreclosure sale under power instituted by its client, Lincoln Savings Bank (“Lincoln”), not a party to this action. The trial court directed that McCalla Raymer deposit the surplus funds into the registry of the court, less its fee for bringing the interpleader; by the same order the trial court dismissed McCalla Raymer from the action. Appellee Aretha Grimes, who owned and resided on the property at the time of the foreclosure, then moved to set aside the order and brought a counterclaim against McCalla Raymer for the additional sum of $5,895.24 which she contended was improperly deducted from the surplus funds.

The trial court entered an order conditioning dismissal of McCalla Raymer from the action on the deposit of an additional $10,347.86 into the registry of the court, including expenses paid to Lincoln relative to the foreclosure, McCalla Raymer’s attorney fees sought in the interpleader action, and all other fees associated with the foreclosure sale. McCalla Raymer appeals this order, asserting that the trial court exceeded its authority in ordering it to pay money not in its possession and in granting relief in the nature of damages for wrongful foreclosure or setting aside a foreclosure when the foreclosing party was not before the court. We agree.

The trial court’s order expressly relies upon its determination that the foreclosure was improper. Aretha Grimes asserted in her answer that the foreclosure was improper and that she was not in default, and the trial court relied upon that assertion, stating that “the court is not convinced by a preponderance of the evidence that Grimes was in default as alleged in the complaint,” citing testimony of Grimes and her husband that she was not in default and the disallowance of an arrearage claim of Lincoln in the United States Bankruptcy Court. But the proper party to any claim for wrongful foreclosure is not McCalla Raymer, which merely acted as counsel in the foreclosure; it is Lincoln, the foreclosing creditor and holder of the note and security deed on the property.

OCGA § 9-11-19 (a) provides: “A person who is subject to service of process shall be joined as a party in the action if: (1) In his absence complete relief cannot be afforded among those who are already parties; or (2) He claims an interest relating to the subject of the action and is so situated that the disposition of the action in his absence may: (A) As a practical matter impair or impede his ability to protect that interest; or (B) Leave any of the persons who are already parties subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of his claimed interest.”

To the extent Grimes sought relief from provisions of the security deed, she was obligated to bring such claims against the holder, Lincoln. To the extent the trial court sought to put into dispute sums that were awarded to Lincoln at foreclosure under the terms of the note and security deed, Lincoln was an indispensable party, and such a decision could not be made in its absence.

The security deed provided for any attorney fees incurred by the lender in protection of the premises, in collection of the debt, or in any other litigation affecting the premises to be paid by the debtor and secured by the security deed. The deed also provided for the deduction of costs and expenses of the sale, expenses of protecting the property, and attorney fees from the proceeds of the sale before payment of the secured indebtedness and distribution of any surplus. Lincoln, the holder of the note and security deed, clearly has an interest in the subject matter of this action, and the trial court’s decision finding the foreclosure improper directly affects its interest. Moreover, to the extent that sums already have been paid to Lincoln by McCalla Raymer, the trial court’s disposition of this action leaves McCalla Raymer subject to the risk of incurring a double obligation. Finally, an attorney is not a proper party when he merely holds money for his client, because “an attorney’s possession of the money of his client is more like that of a mere agent or bailee.” (Citation and punctuation omitted.) Smeltzer v. Bank of Fitzgerald, 192 Ga. App. 747, 749 (1) (386 SE2d 406) (1989) (attorney not real party in interest in litigation over client’s funds).

On the limited record before us, we have no basis to discern the method by which Grimes should have sought relief against Lincoln. But it is nevertheless clear that claims against Lincoln regarding the foreclosure of its note and security deed cannot be brought by counterclaim against its counsel in an interpleader action. “One cannot do indirectly what the law does not allow to be done directly. [Cit.]” Phillips v. MacDougald, 219 Ga. App. 152, 153 (2) (a) (464 SE2d 390) (1995). Any litigation regarding the propriety of costs and expenses provided for by the terms of the notes must include the real party in interest, Lincoln. In that party’s absence, the trial court is limited to determining the appropriate claimant or claimants to the sum held by McCalla Raymer as surplus proceeds of the foreclosure sale, as well as the expenses and attorney fees incurred by McCalla Raymer in bringing the interpleader action under OCGA § 23-3-90. We therefore reverse the judgment of the trial court and remand for proceedings consistent with this opinion.

Decided November 3, 1998.

McCalla, Raymer, Padrick, Cobb, Nichols & Clark, Carol V. Clark, Peter L. Lublin, for appellant.

Robert W. Broome, for appellees.

Judgment reversed and remanded.

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

       According to the trial court, this bankruptcy proceeding was voluntarily dismissed by Grimes, although the record does not contain either the dismissal or the bankruptcy court findings referred to by the trial court.


author: Beasley, Judge.

text:
    A98A1499.
    INTEGON INDEMNITY CORPORATION v. HENRY MEDICAL CENTER, INC.
    (508 SE2d 476)
   Beasley, Judge.

Integon Indemnity Corporation’s interlocutory appeal challenges the trial court’s denial of its motion for summary judgment in a direct suit against it by Henry Medical Center, Inc. to foreclose on a medical lien and alleging fraud.

On April 21, 1995, Lillie Mae Slaughter was driving an automobile which collided with a car driven by Katherine Helms. Helms’ Integon policy had a liability limit of $15,000 per person and $30,000 per accident for bodily injury. Slaughter and her passenger were injured and were treated at Henry Medical Center. On May 3, the hospital filed a medical lien in Henry County which included the $10,978.71 expenses incurred by Slaughter.

Slaughter and the passenger gave notice to Integon of intent to pursue claims against Helms for property damage and personal injuries. At some point, the passenger’s hospital bills were paid and that claim resolved. Integon investigated and settled Slaughter’s claims for $15,000 in consideration for which, on September 15, 1995, Slaughter executed a release of all claims against Integon and Helms. Integon delivered the settlement payment to Slaughter’s attorney, who has been added as a party. Slaughter’s hospital bills were never paid.

Henry Medical received verbal notice of “full and final settlement” of Slaughter’s claim against Helms and Integon as early as February 13, 1996, and written notice on March 7. The hospital filed suit to foreclose on the lien on November 27. It later amended its complaint to allege Integon and Slaughter conspired to settle the case without the hospital’s knowledge and consent.

1. Integon contends the hospital is not authorized to proceed against it under the medical lien statutes. OCGA § 44-14-470 et seq. provide that hospitals and nursing homes shall have and be able to enforce liens “upon any and all causes of action accruing to the person to whom the care was furnished or to the legal representative of such person on account of the injuries giving rise to the causes of action and which necessitated the hospital or nursing home care, subject, however, to any attorney’s lien.”

(a) The initial question is whether Slaughter had a cause of action against Integon arising out of her automobile accident with Integon’s insured Katherine Helms.

In Georgia, “[t]he general rule is that because there is no privity of contract, a party may not bring a direct action against the liability insurer of the party who allegedly caused the damage unless there is an unsatisfied judgment against the insured or it is specifically permitted either by statute or a provision in the policy.” Other exceptions may exist where the insured’s liability to the injured party “has been otherwise fixed.”

First, no evidence has been presented that Slaughter has an unsatisfied judgment against the insured, alleged tortfeasor Helms. Second, Helms’ policy provides: “under [the liability coverage section], no legal action may be brought against us until: 1. we agree in writing that the insured has an obligation to pay; or 2. the amount of that obligation has been finally determined by judgment after trial. No person or organization has any right under this policy to bring us into any action to determine the liability of the insured.” This provision does not permit a direct action by the person injured, and the hospital refers us to no other provision in the policy or, thirdly, to any statute permitting a direct action against the insurer.

The exception, when “liability has been otherwise fixed,” provides no open door to Henry Medical because, “inasmuch as our lien laws and procedures are in derogation of the common law, they must be construed strictly against the creditor and in favor of the debtor. [Cit.]” Neither Seaboard Coast Line R. Co. v. Freight Delivery Svc. nor the cases it cites for the general rule identify any instances of “otherwise fixed” liability. Whatever those are, this is not one of them. A settlement agreement can be a situation where the liability is otherwise fixed. Here the settlement agreement was fully performed, and Integon has already paid the settlement amount. Therefore, Slaughter has no cause of action against Integon on which the hospital can place a lien. Without such, the hospital cannot foreclose. Integon is entitled to summary judgment on the lien foreclosure count.

Henry Medical’s reliance on Hosp. Auth. &c. of Augusta v. Boyd and Macon-Bibb County Hosp. Auth. v. Nat. Union Fire Ins. Co. is unfounded. In Boyd, the Court never addressed whether the insurance company had been properly dismissed from a suit by the hospital to foreclose a lien. Macon-Bibb County Hosp., a non-binding federal case, addressed only the narrow issue of whether a hospital’s late filing of the medical lien affidavit would defeat the lien. The issue in Henry Medical’s case was not addressed.

(b) A second provision of the medical lien statutes supports the conclusion that Henry Medical may not proceed against Integon. OCGA § 44-14-473 makes clear that in the event a payment is made in violation of the lien, the lienholder may enforce the lien by an action “against the person, firm, or corporation liable for the damages.” The legislature could have added the insurer of the tortfeasor to the provision, but it did not. Additionally, Integon is not liable for Slaughter’s damages, neither under the policy nor by statute or agreement. The hospital had a remedy in that it could have foreclosed against Helms, but not against her insurer.

2. Even if Integon could be sued under the statute, Henry Medical missed the deadline to sue. Any action to enforce the lien must be commenced within one year “after the date the liability is finally determined by a settlement, by a release, by a covenant not to bring an action, or by the judgment of a court of competent jurisdiction.” Under the plain meaning of the statute Henry Medical was too late because Integon and Helms settled with Slaughter more than one year before the hospital filed this action.

Henry Medical contends the settlement and release did not trigger the miming of the limitation period. It argues the release did not “finally determine” liability because Integon and Helms expressly denied liability in the release. But the hospital’s lien was on Slaughter’s cause of action against Helms. Liability in that action was avoided permanently by the settlement and release. No further action by Slaughter against Helms lies because Slaughter completely relinquished any and all “claims, demands, rights, and causes of action of whatsoever kind and nature, arising from [the accident]. . . .”

The hospital also contends there was no final determination of liability because the release was a limited release made pursuant to OCGA § 33-24-41.1. The hospital supports this claim with neither argument nor citation of authority. Further, releases authorized by that section are limited only in that the release of one possibly liable insurer does not release other carriers providing coverage or other tortfeasors and their carriers. That limitation does not apply here.

Henry Medical’s argument that this result would be unfair if the lienholder had no notice of the settlement does not fit the facts. Henry Medical had notice that Integon settled with Slaughter over six months before the deadline to file suit.

Decided November 3, 1998

Smith, Howard & Ajax, James T. Brieske, Kimberly L. Moore, Joseph P. Hewes, for appellant.

Meadows & Associates, Warren R. Power, Robert M. Lewis, Jr., Michael A. Gabel, for appellee.

3. As to the remaining count, the hospital alleges that Integon and Slaughter “conspired with one another to settle [Slaughter’s] claim against Defendant, Integon’s insured, without the knowledge and consent of [the hospital],” prejudicing the hospital. Essentially, Integon argues that once it exhausted its full policy limits settling Slaughter’s claim, it owed no further duty to its insured and is therefore not subject to suit by the hospital.

Such a fraud claim, similar to a claim of fraudulent conveyance, might arise if Integon were a debtor of the hospital. But it is not. It owed no contractual duty to the hospital. Further, because Slaughter had no direct claim against Integon, Integon owed no duty to provide the hospital with notice of its settlement with Slaughter at or before the time payment was made.

Judgment reversed.

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

       OCGA § 44-14-470 (b).

       “A ‘cause of action’ is generally referred to as the right to sue for a thing done or omitted to be done which causes a grievance for which the law gives a remedy. The ‘cause’ is the right of the party to bring the suit, and the ‘action’ is the means of enforcing the right. In Georgia, ‘cause of action’ has been defined as ‘all the facts which together constitute the plaintiff’s right to maintain the action.’ ” (Citations and emphasis omitted.) Winters v. Pund, 179 Ga. App. 349, 352 (346 SE2d 124) (1986), overruled on other grounds, Wickliffe v. Wickliffe Co., 227 Ga. App. 432 (489 SE2d 153) (1997).

        Hartford Ins. Co. v. Henderson & Son, Inc., 258 Ga. 493, 494 (371 SE2d 401) (1988), citing Seaboard Coast Line R. Co. v. Freight Delivery Svc., 133 Ga. App. 92, 95 (3) (210 SE2d 42) (1974). See also McKin v. Gilbert, 208 Ga. App. 788 (432 SE2d 233) (1993).

        Seaboard Coast Line R. Co., supra.

        Brockett Road Apts. v. Ga.-Pacific Corp., 138 Ga. App. 198, 199 (225 SE2d 771) (1976) (applying rule to materialman’s lien); Southern Gen. Ins. Co. v. Auto Transformation, 206 Ga. App. 243, 244-245 (1) (424 SE2d 883) (1992) (automobile mechanic’s lien); Padgett v. City of Moultrie, 229 Ga. App. 500, 502 (1) (494 SE2d 299) (1997) (broker’s lien); Peoples v. Consolidated Preightways, 226 Ga. App. 265, 266 (1) (486 SE2d 604) (1997) (attorney’s lien).

       Supra.

        See Arnold v. Walton, 205 Ga. 606, 612 (2) (54 SE2d 424) (1949); Hodges v. Ocean Accident &c. Corp., 66 Ga. App. 431 (1) (18 SE2d 28) (1941). Arnold prohibited a direct action to fix the liability of the insured. Hodges allowed a direct garnishment action because the policy insured directly against liability; it was not an indemnity policy.

        Topa Ins. Co. v. Acree, 209 Ga. App. 234 (433 SE2d 312) (1993) (injured party allowed to recover against tortfeasor’s insurer where insurer orally agreed to pay but refused to perform).

       96 Ga. App. 705 (101 SE2d 207) (1957).

       793 FSupp. 321 (M.D. Ga. 1992).

        Boyd, supra. See also Dawson v. Hosp. Auth. of Augusta, 98 Ga. App. 792 (106 SE2d 807) (1958) (second appeal in same case reveals that insurance company was dismissed from the case; no explanation given).

        Macon-Bibb County Hosp. Auth., supra.

       Compare Hosp. Auth. &c. of Augusta v. Boyd, supra (hospital has no cause of action under lien law against the patient who incurred the hospital expenses).

       OCGA § 44-14-473 (a).

       See Dept. of Med. Assistance v. Hallman, 203 Ga. App. 615 (417 SE2d 218) (1992) (limitation on foreclosure of hospital lien is one year from settlement).

       OCGA § 33-24-41.1 (d).

       See OCGA § 18-2-22.


text:
    A98A1747.
    BATTLE v. THE STATE.
    (508 SE2d 467)
   Beasley, Judge.

In 1984, Battle pled guilty to the kidnapping with bodily injury of one victim and rape of another. Two consecutive sentences of life imprisonment were imposed. The Sentence Review Panel denied a reduction.

In 1987, the trial court denied Battle’s motion to modify his sentence as unduly harsh. In 1993 and 1996, the court denied Battle’s extraordinary motions to withdraw his guilty plea, which motions were based on the ground that the plea was not knowingly, intelligently, and voluntarily entered. We held on appeal that the motions should have been dismissed on jurisdictional grounds, for a superior court’s jurisdiction to consider a motion to withdraw a guilty plea ends after the term of court in which the judgment of conviction is rendered.

Decided November 3, 1998.

Bobby C. Battle, pro se.

In 1998, Battle filed the present “motion to vacate void sentence,” again in the trial court, contending anew that his plea was not knowing, intelligent, and voluntary. He also maintained that his guilty plea resulted from ineffective assistance of trial counsel, that he was improperly sentenced as a recidivist, and that his sentencing violated double jeopardy because the rape was a lesser included offense of kidnapping with bodily injury. This appeal is from the court’s dismissal of his motion for lack of jurisdiction.

As a general rule, a motion to vacate a sentence is not an appropriate remedy in a criminal case after passage of the term in which the judgment was entered. An exception exists where a sentence is void, i.e., where the court has imposed punishment which the law does not allow. Battle’s sentences are lawful. Life imprisonment is authorized for both kidnapping with bodily injury and rape, even for first offenders, and Battle’s indictment alleged that the offenses to which he pled guilty were committed against different victims.

The proper method for challenging the validity of a guilty plea and resulting sentence is through habeas corpus proceedings. Under OCGA § 9-14-42 (a), a state habeas petitioner’s entitlement to relief is limited to the denial of state or federal constitutional rights. A petition for habeas corpus must be filed in the superior court of the county where a prisoner is detained. Since Battle is incarcerated in a different county from where tried, his motion cannot be considered such a petition.

Dismissal of the motion was required.

Judgment affirmed.

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

J. David Miller, District Attorney, Charles M. Stines, Assistant District Attorney, for appellee.

        Battle v. State, 225 Ga. App. XXVII (1997), relying on Cabell v. State, 221 Ga. App. 192 (471 SE2d 222) (1996).

       See State v. Mohamed, 203 Ga. App. 21 (2) (416 SE2d 358) (1992), citing Thigpen v. State, 165 Ga. App. 837, 838 (303 SE2d 81) (1983).

        Crumbley v. State, 261 Ga. 610, 611 (1) (409 SE2d 517) (1991).

       See OCGA §§ 16-5-40 (b) (kidnapping with bodily injury); 16-6-1 (b) (rape).

       See Manry v. State, 226 Ga. App. 445 (487 SE2d 80) (1997) (where defendant pleads guilty to counts of indictment alleging multiple criminal acts, he waives claim that sentence is void on double jeopardy grounds because there was in fact only one act).

        Gipson v. State, 269 Ga. 26 (494 SE2d 669) (1998) (guilty plea challenged through habeas corpus); Gaither v. Inman, 253 Ga. 484 (322 SE2d 242) (1984) (sentence challenged through habeas corpus).

        Bennett v. State, 225 Ga. App. 284, 285 (1) (483 SE2d 612) (1997), rev’d on other grounds, 268 Ga. 849 (494 SE2d 330) (1998).

       OCGA § 9-14-43.

        Manry v. State, supra.


author: Judge Harold R. Banke.

text:
    A98A2063.
    CARY et al. v. DEPARTMENT OF CHILDREN & YOUTH SERVICES.
    (508 SE2d 469)
   Judge Harold R. Banke.

Justin Wade Cary and his mother, Nancy Sue Cary, sued the Georgia Department of Children & Youth Services (“DCYS”) alleging negligent supervision and intentional infliction of emotional distress under the Georgia Tort Claims Act and 42 USC § 1983. The Carys appeal the trial court’s order granting DCYS’s motion for summary judgment, enumerating two errors.

This case arose after Rhonda Lathem, a secretary/typist with DCYS and a part-time county juvenile court intake officer, developed an “inappropriate relationship” with Justin Wade Cary, who was then 15 years old and on probation. According to Cary, the relationship escalated from Lathem offering him attention to gifts and sex. Lathem permitted Cary to spend nights at her home and arranged for certain charges against him to be dropped. Ultimately, Justin Cary was incarcerated as an adult for numerous felonies, and Lathem was discharged.

Justin Cary and his mother then brought this action, claiming that by breaching its duty to supervise both Justin Cary and its own employees, DCYS victimized Justin Cary and caused emotional distress to him and his mother. The trial court premised summary judgment on sovereign immunity and a finding that DCYS was not a person within the meaning of § 1983. Held:

1. The Carys contend that the trial court erred in determining that because Lathem’s actions did not fall within the scope of her employment, sovereign immunity was not waived. We disagree.

“In the exercise of its constitutional authority to waive the defense of sovereign immunity, the General Assembly has enacted the Georgia Tort Claims Act (GTCA). OCGA § 50-21-20 et seq.” Woodard v. Laurens County, 265 Ga. 404, 405 (1) (456 SE2d 581) (1995). But the waiver of the State’s sovereign immunity for the torts of its officers and employees does not extend to losses resulting from conduct which was “not within the scope of their official duties or employment.” OCGA § 50-21-23 (a); see Dept. of Human Resources v. Hutchinson, 217 Ga. App. 70, 71 (1) (456 SE2d 642) (1995) (the conditions and limitations of this provision must be strictly followed).

Decided November 3, 1998.

Flint & Sumner, John F. Connolly, for appellants.

Thurbert E. Baker, Attorney General, William C. Joy, Senior Assistant Attorney General, Harman, Owen, Saunders & Sweeney, David C. Will, for appellee.

It is undisputed that DCYS employed Lathem as a secretary/typist, a position with no duties involving case management supervision. Nothing in the record suggests in any way that the physical, personal, or legal arrangements Lathem purportedly made for Justin Cary were within the scope of her employment as a secretary/typist for DCYS. Accordingly, we cannot say that the Carys satisfied their burden of demonstrating a waiver of sovereign immunity. Rhoden v. Dept. of Pub. Safety, 221 Ga. App. 844, 846 (1) (473 SE2d 537) (1996).

In addition to the immunity bar, these claims fail because the alleged breach of duty by DCYS was not the cause of the Carys’ injuries. The record clearly shows that Justin Cary’s own actions were the cause of his incarceration and the emotional pain suffered by him and his mother. See Christensen v. State of Ga., 219 Ga. App. 10, 14 (8) (464 SE2d 14) (1995). Testimony by Justin Cary’s former probation officer that he was unsure about DCYS policy, but that no action had been taken when another employee permitted a deprived child with nowhere else to stay to sleep at his home does not alter the fact that Lathem’s actions were clearly beyond the scope of her official duties. Further, the record shows that the employee who purportedly allowed the child to stay at his house was a court service worker who had different official duties from a secretary/typist.

2. In light of our disposition of Division 1, we need not reach the Carys’ contention that supervision of Justin Cary’s probation was a ministerial function falling within the exceptions to the State’s waiver of sovereign immunity.

Judgment affirmed.

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

       The ruling on the § 1983 was not appealed.


author: Eldridge, Judge.

text:
    A98A2429.
    COOK v. THE STATE.
    (508 SE2d 473)
   Eldridge, Judge.

A Fayette County jury found Marcus Louis Cook guilty of felony obstruction of an officer. We have reviewed Cook’s five enumerations of error and affirm his conviction.

1. Cook first challenges the sufficiency of the evidence introduced against him. He contends that (1) the two officers who testified on behalf of the prosecution contradicted each other, and (2) “defendant’s testimony shows that he had no intent to terrorize the alleged victim but was simply stating the tray was not thrown but had simply turned over due to the closing of the door as the Sergeant was leaving the cell.”

The record shows that Cook was an inmate at the Clayton County Correctional Institution. During meal time, it is the policy of the institution for the officer in charge of delivering the meals to place the tray inside the inmate’s cell; “[w]hether he decides to eat or not, that is up to him, but it’s policy to set the tray inside the cell so he does have an opportunity.” Cook refused to allow the tray to be placed in his cell. The on-duty officer called his supervisor for assistance. The supervising officer “opened the door and guided the inmate to the back far wall.” The tray was placed inside the cell. As the supervisor left the cell, Cook picked up the tray and threw it at the supervisor, striking him in the back.

“[I]t is the function of the jury, and not this Court, to resolve conflicts in the evidence. This Court determines only the legal sufficiency of the evidence adduced below and does not weigh the evidence or assess the credibility of the witnesses.” (Citation and punctuation omitted.) Kapua v. State, 228 Ga. App. 193, 195 (491 SE2d 387) (1997).

Clearly, the jury in this case resolved any alleged conflicts in the testimony against Cook. It is equally clear that the jury did not believe Cook’s trial testimony that he did not throw the tray at the supervising officer and that both officers were lying. These credibility decisions rightfully belong to the jury, and this Court will not go behind them. The evidence was sufficient for a rational trier of fact to have found Cook guilty beyond a reasonable doubt of felony obstruction of an officer. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. Next, Cook contends that his sentence for felony obstruction was “excessive and disproportionate to the offenses charges [sic] in violation of the Eighth Amendment to the United States Constitution.” We disagree.

“A determinate sentence which falls within statutorily mandated parameters is not subject to attack on Eighth Amendment grounds. [Cit.]” Pollard v. State, 230 Ga. App. 159, 161 (5) (495 SE2d 629) (1998). Felony obstruction of an officer carries a penalty of between one and five years imprisonment. OCGA § 16-10-24 (b). The trial court sentenced Cook to five years imprisonment, to be served consecutively to Cook’s current term of imprisonment. As Cook’s sentence was within the term provided by law, it did not violate the Eighth Amendment. Id.

Further, following Cook’s conviction in the instant case, the State introduced in aggravation of sentence a prior conviction for burglary and a prior conviction for obstruction of an officer and burglary, which convictions were considered by the trial court in imposing sentence. The trial court noted that Cook previously had been sentenced to four years to serve and five years to serve respectively on the prior convictions. Accordingly, we find neither a failure to exercise discretion in sentencing nor an abuse thereof. OCGA § 17-10-7.

3. In his third enumeration of error, Cook contends that “it was error for the trial court to proceed with trial against the Defendant, with knowledge that the defendant was alleging that he had not received discovery from the State.” Again, we do not agree.

The record shows that the State served Cook with discovery which consisted of the indictment, list of witnesses, notice of aggravation of punishment, and notice of similar transactions. At trial, the prosecutor stated that “we have provided everything to Mr. Cook.” The prosecutor further stated that “I spoke with this man Monday in jail and he had the discovery he’d been provided by our officer with him at that time.”

It is clear from our review of the record that Cook believed that he was entitled to more discovery than he received. However, Cook has never stated what additional discovery he expected, and, from review of the trial evidence in this obstruction case, we can perceive no additional discovery that should have been provided. “This Court will not speculate whether any belated discovery deprived appellant of his right to a fair trial; appellant failed to carry his appellate burden of establishing how he has been harmed.” Herndon v. State, 229 Ga. App. 457, 458 (3) (494 SE2d 262) (1997).

4. Cook’s fourth enumeration of error is that “[i]t was error for the trial court to allow the trial to go forward without questioning the Defendant and/or securing the Defendant’s statement as to his need and/or desire for representation by an attorney as provided in the Sixth and Fourteenth Amendments to the U. S. Constitution.” In support thereof, Cook cites Maine v. Moulton, 474 U. S. 159 (106 SC 477, 88 LE2d 481) (1985), the seminal case regarding the right to have counsel present in a confrontation between the accused and the State.

The record does not support Cook’s claim of error. In fact, the trial court appointed an attorney to represent Cook on the obstruction charge. Cook filed a motion to withdraw the attorney. The trial court held a hearing on the subject, during which Cook “asked to be allowed to represent himself.” At trial, Cook never indicated that he had changed his mind about self-representation and wanted an attorney to be appointed. Moreover, Cook does not allege such before this Court.

Decided November 3, 1998.

Weldon & Ruppenthal, George H. Weldon, for appellant.

William T. McBroom III, District Attorney, for appellee.

“The appellant’s constitutional right to adequate counsel was satisfied in this case but he threw it away. . . . We do not question that a defendant has the right to counsel, but he had it in this case and voluntarily gave it up.” (Citation omitted.) Mock v. State, 163 Ga. App. 320, 321-322 (293 SE2d 525) (1982); Hasty v. State, 210 Ga. App. 722, 724 (437 SE2d 638) (1993). The error as enumerated is meritless.

5. In his last enumeration of error,. Cook claims that the trial court erred by failing to charge the jury on the defense of accident. However, Cook did not put forward the defense of accident. Cook testified during trial that he did not throw the tray at the correction officer; that the officer “didn’t get hit”; that the correction officers who testified were lying; and that Cook was “the only one telling the truth.” Because the trial court is not obligated to give a charge not adjusted to the facts, the court did not err in failing to charge on accident. Carlton v. State, 224 Ga. App. 315, 319 (480 SE2d 336) (1997).

Judgment affirmed.

McMurray, P. J, and Blackburn, J., concur.

       Similar transaction evidence was not introduced in the trial of this case.

       Cook’s enumeration of error does not raise issues regarding the dangers of self-representation or the trial court’s duty to inform a defendant of such.


text:
    A98A2444.
    THE STATE v. MAYO.
    (508 SE2d 475)
   Eldridge, Judge.

The State appeals a Cobb County State Court’s order granting Brent Mayo’s motion to suppress his State-administered breath test. For the following reasons, we reverse.

Mayo filed his motion to suppress on the basis that the implied consent warnings, given pursuant to OCGA § 40-5-67.1 (b) (2), were not read precisely in the language of the statute. The officer added two articles, “a” and “the,” to the warnings. The trial court found that “the addition of the articles does not change the meaning of the notice,” but concluded that the officer’s errors required suppression of the breath test results. In addition, the trial court noted that, effective March 27, 1998, the General Assembly amended OCGA § 40-5-67.1 (b) to state that an implied consent notice “shall be read in its entirety but need not be read exactly so long as the substance of the notice remains unchanged.” Ga. L. 1998, pp. 210, 212. However, the court determined that the statutory amendment did not apply since Mayo’s offense occurred prior to the effective date of the amendment.

Decided November 3, 1998.

Barry E. Morgan, Solicitor, Laura J. Murphree, Jessica K. Moss, Assistant Solicitors, for appellant.

The disposition of this case is controlled adversely to Mayo by our recent decision in State v. Moncrief, 234 Ga. App. 871 (508 SE2d 216) (1998).

In State v. Moncrief we found that the 1998 amendment to OCGA § 40-5-61 was purely procedural in nature and did not impact on any substantive rights conferred by the statute. See also State v. Martin, 266 Ga. 244 (466 SE2d 216) (1996); Helmeci v. State, 230 Ga. App. 866 (498 SE2d 326) (1998). Unless application of a new statute alters substantive rights conferred by law, “[i]t is a well-established rule that an appellate court applies the law as it exists at the time its opinion is rendered.” (Citation and punctuation omitted.) State v. Moncrief, supra at 872. As such, this Court will apply amended OCGA § 40-5-67.1 to cases on appellate review, regardless of the effective date of the amendment in relation to the incident date of the case.

Under the amendment to the statute, implied consent warnings need not be read precisely in the language of the statute, as long as the substance of the warnings remains unchanged. Here, the trial court specifically found that the officer’s inadvertent addition of two articles did not change the substance of the implied consent warnings. We agree. Accordingly, the errors here do not serve as a basis for the granting of the instant motion to suppress. OCGA § 40-5-67.1 (b).

Judgment reversed.

McMurray, P. J, and Blackburn, J, concur.

Spruell, Taylor & Associates, Billy L. Spruell, Melinda D. Taylor, for appellee.

       See State v. Fielding, 229 Ga. App. 675 (494 SE2d 561) (1997); State v. Barfield, 230 Ga. App. 141 (495 SE2d 622) (1998); and State v. Halstead, 230 Ga. App. 208 (496 SE2d 279) (1998), which require that the statutory language of the implied consent warnings be read exactly.


text:
    A98A1577.
    In the Interest of M. M., a child.
    (508 SE2d 484)
   Beasley, Judge.

A delinquency petition was filed in juvenile court charging M. M. with commission of an act of delinquency, a burglary. At the conclusion of the adjudicatory hearing, the court found M. M. guilty of the offense charged and, following the dispositional hearing, committed him to the State Department of Children & Youth Services.

In this appeal, M. M. enumerates three errors: the court’s admission of an incriminatory statement he made to the detective investigating the case; a fatal variance between the date of the offense as alleged in the petition and proven at the hearing; and the sufficiency of the evidence to support the charge.

At the hearing, the victim Cramer testified that when he and his family returned on Friday, July 11, 1997, from a trip which had begun on Wednesday, he discovered that his computer had been tampered with and approximately $69 was missing from his children’s room. He learned from the time log of the computer, which was properly functioning, that at 2:48 p.m. on July 11 an attempt was made to load the video game Marathon onto the computer. M. M., a child who lived in the neighborhood, had frequently played this computer game while visiting the Cramers. Although the Cramer family had befriended M. M. by allowing him to swim in their pool and admitting him as a guest in their home, he was later banned from the property because he had stolen a number of items. Mr. Cramer suspected that M. M. was the culprit on this occasion and so informed the police.

During the course of his investigation, Detective Bolton went to M. M.’s house and obtained his mother’s permission to question him concerning the burglary. Detective Bolton read M. M.’s rights to him in his mother’s presence, allowed him to read the waiver form on which they were stated, and had both M. M. and his mother sign it. There is no assertion or evidence of coercion or lack of understanding with respect to the waiver document.

Bolton testified, “I told [M. M.] that I knew that he was in the [Cramer] home, that I would appreciate it if he told me the truth about it and that if he did I would mention (to the district attorney) that he had cooperated. That he didn’t need to lie to me or if he did I would recommend that he go back to boot camp again.” On the other hand, M. M.’s mother testified that after Bolton told her that her son would not be sent to boot camp or “to juvenile” if he told the truth, she agreed to the interview. The detective testified that he did tell the district attorney’s office that M. M. had cooperated.

M. M. then wrote the following statement, which he also gave orally: “Monday, I think it was, I went over to the house to see if I could go swimming. I went to all of the doors. The glass door was wide open. I went inside. I messed with the computer and tried to play Marathon II. Afterward I went into the grown ups’ room. I found three dollars. Then I left. On Saturday, I went back and I was going to give it back but Mrs. Crammer [sic] would not open the door. Then I left.” Following a Jackson-Denno hearing, the court found that this statement was freely and voluntarily given, and evidence of it was admitted over objection.

Both M. M. and his mother testified that on Friday, July 11, he was home all day. On cross-examination, he responded in the affirmative when asked whether each part of his statement to Detective Bolton was true, except for the part about trying to return the money on Saturday. Consistent with his statement, M. M. maintained that his entry into the Cramer home occurred on Monday, July 7, or possibly another day “at the beginning of the week” but not on Friday, July 11.

1. M. M. initially contends that his statement to the detective was inadmissible under OCGA §§ 24-3-50 and 15-11-31 (b). The first cited section renders a confession admissible only if “made voluntarily, without being induced by another by the slightest hope of benefit or remotest fear of injury.” The second applies this principle and constitutional safeguards to children charged with delinquency and requires corroboration of a child’s confession. “[T]he question of a voluntary and knowing waiver depends on the totality of the circumstances and the state has a heavy burden in showing that the juvenile did understand and waive his rights. [Cits.]” “Confessions of juveniles are scanned with more care and received with greater caution.”

M. M. argues that the detective coerced his statement by promising lenient treatment and no boot camp if he cooperated with the investigation.

M. M. testified to facts which were the same or substantially the same as his extrajudicial statement, except he did not testify about the effort on Saturday. In consequence, any error in admission of the statement was harmless beyond a reasonable doubt in that there is not “ ‘a reasonable possibility that the evidence complained of might have contributed to the [adjudication of delinquency].’ ” The court rejected M. M.’s statement and testimony that he was not in the victim’s home on the date charged and testified to by the victim.

To the extent that M. M.’s testimony is incriminating (he did enter the house without permission, he did try to play a computer game, he did take some money, but all on a different day), the evidence demonstrates as it must that M. M.’s testimony was not impelled by the admission of the statement but rather was presented to counter the strong positive evidence of guilt given in testimony by the victim.

2. There was no variance between the State’s allegation and proof concerning the date of the commission of the offense. The State’s evidence, presented by way of the victim’s testimony, was that the burglary was committed on July 11, as alleged in the petition. A conflict in the evidence does not create a fatal variance unless the factfinder resolves the factual issue against the State. The court did not do so here.

3. “In juvenile proceedings, ‘the standard of proof on charges of a criminal nature is the same as that used in criminal proceedings against adults — proof must be beyond a reasonable doubt. (OCGA § 15-11-33 (c)); (cits.)’ [Cit.]”

The measure for appellate evidentiary review is likewise. “ ‘[0]n appeal the evidence must be viewed in a light most favorable to the verdict [or adjudication] . . . ; moreover, on appeal this court determines evidence sufficiency, and does not weigh the evidence or determine witness credibility. (Cits.)’ [Cit.] ‘Conflicts in the testimony of the witnesses . . . [are] a matter of credibility for the [trier of fact] to resolve. (Cits.)’ [Cit.]” The evidence against M. M. was sufficient for a rational trier of fact to find him delinquent beyond a reasonable doubt for having committed the offense as charged.

Decided November 4, 1998.

William D. Patten, Jr., for appellant.

Tommy K. Floyd, District Attorney, Blair D. Mahaffey, Mary Evans-Battle, Assistant District Attorneys, for appellee.

Judgment affirmed.

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

       Although the court indicated at the dispositional hearing that it would recommend to the State that “the child be placed in a wilderness program for an extended period of time, not less than 12 months,” that recommendation is not in the order of commitment. Appellant’s brief indicates he is at a youth development campus.

        Riley v. State, 237 Ga. 124, 128 (226 SE2d 922) (1976).

        Crawford v. State, 240 Ga. 321, 323 (1) (240 SE2d 824) (1977); see Massey v. State, 243 Ga. 228 (1) (253 SE2d 196) (1979). The criteria established in Riley do not apply to an adult’s confession. Ranee v. State, 245 Ga. 856, 858 (2) (268 SE2d 339) (1980).

       As to questions concerning whether confessions are improperly induced by hope of benefit, compare Johnson v. State, 238 Ga. 27 (1) (230 SE2d 849) (1976), and Askea v. State, 153 Ga. App. 849, 851 (3) (267 SE2d 279) (1980), with McKenzie v. State, 187 Ga. App. 840, 843 (3) (371 SE2d 869) (1988); Godson v. State, 197 Ga. App. 315 (1) (398 SE2d 409) (1990); Lyles v. State, 221 Ga. App. 560, 561 (1) (472 SE2d 132) (1996), and In the Interest of J. L., 229 Ga. App. 447, 449 (2) (494 SE2d 274) (1997).

        LaRue v. State, 137 Ga. App. 762, 764 (2) (224 SE2d 837) (1976).

       Compare id. at 767; Pruitt v. State, 176 Ga. App. 317, 321 (3) (335 SE2d 724) (1985).

         In the Interest of J. T. M., 200 Ga. App. 636, 637 (409 SE2d 256) (1991).

       See id.

        Taylor v. State, 226 Ga. App. 254, 255 (485 SE2d 830) (1997).

       See In the Interest of J. D. G., 207 Ga. App. 698, 700 (3) (429 SE2d 118) (1993).


author: Johnson, Presiding Judge.

text:
    A98A1981.
    ROBERSON v. GNANN.
    (508 SE2d 480)
   Johnson, Presiding Judge.

Julia Mae Shiggs became permanently incapacitated in August 1994, following a caesarean section performed by Dr. Speir N. Ramsey at Memorial Medical Center. After the surgery, Shiggs lapsed into a coma and died in December 1996. Before Shiggs’ death, her court-appointed guardian filed a medical malpractice suit against Ramsey, the Medical Center and others. Attorneys David Roberson and John Woodall represented Mydell in the medical malpractice suit.

Subsequently, a suit was initiated by J. Hamrick Gnann, Jr., as administrator of Shiggs’ estate, against Roberson, Woodall and others for their conduct in settling the medical malpractice suit. Gnann contended that Roberson engaged in acts of misconduct and was negligent in the handling of funds obtained from Memorial Medical Center and its excess insurance carrier following the settlement of the medical malpractice claim. The first five counts of Gnann’s suit alleged claims against Roberson and Woodall for legal malpractice, money had and received, conversion, fraud, and civil RICO. The sixth count sought a receivership for Roberson.

Gnann’s suit was filed on May 22, 1997, and service was perfected upon Roberson on May 27, 1997. The parties entered into settlement discussions and agreed that Roberson would not be required to file an answer until settlement discussions ended. The agreement was not filed with the trial court. A settlement deadline of October 31, 1997, purportedly was established. The parties filed three stipulations partially implementing their general agreement. Discovery and settlement negotiations continued during these periods.

On November 12, 1997, after the parties failed to settle the case before the deadline, Gnann’s attorney sent a letter to Roberson’s attorney stating that the deadline to settle the case expired on October 31, 1997, and Roberson would be considered in default if his answer was not filed before Monday, November 17, 1997. Roberson did not answer by November 17, 1997.

Gnann filed a motion for default judgment on November 24, 1997. On that same day, Roberson’s counsel filed a motion to withdraw, which was granted in late December. On December 2, 1997, Roberson filed an answer pro se and paid all court costs. On February 26, 1998, the trial court granted default judgment against Roberson on the money had and received count in the amount of $1,362,500. As to the other five counts at issue here, the trial court found Roberson liable, but left the issue of damages pending. See OCGA § 9-11-55 (a). Roberson appeals. We affirm.

1. Roberson contends that the trial court erred in granting Gnann default judgment for money had and received because this is not a money had and received case and that legal theory is inapplicable to the facts of this case.

In essence, Roberson attempts to assert a defense to the claim for money had and received. However, following Roberson’s default, Gnann was entitled to a verdict and judgment as if every item and paragraph of the complaint or other original pleading were supported by proper evidence. Walker v. Hambrick, 226 Ga. App. 207, 208 (1) (486 SE2d 77) (1997). Entry of a default estops a defendant from offering any defenses which would defeat the right of recovery. Nova Group v. M. B. Davis Elec. Co., 187 Ga. App. 403, 406 (370 SE2d 626) (1988). Roberson’s first and fifth enumerations of error are without merit.

2. Roberson contends that because he filed an answer and paid court costs within 15 days of the deadline set by Gnann, it was error for the trial court to grant a default judgment. We disagree.

The complaint was served on May 27, 1997; Roberson had 30 days from that date to answer. See OCGA § 9-11-12 (a). When an answer has not been filed within the time required by the Civil Practice Act, the case automatically becomes in default, unless the time for filing the answer has been extended as provided by law. OCGA § 9-11-55 (a). OCGA § 9-11-6 (b) pertinently provides that when the Civil Practicé Act requires that an act be done within a specified time, “the parties, by written stipulation of counsel filed in the action, may extend the period, or the court for cause shown may at any time in its discretion (1) with or without motion or notice, order the period extended if request therefor is made before the expiration of the period originally prescribed or as extended by a previous order, or (2) upon motion made after the expiration of the specified period, permit the act to be done where the failure to act was the result of excusable neglect.” In determining whether a valid extension has been granted, OCGA §§ 9-11-6 (b) and 9-11-55 (a) must be construed together.

Contrary to Roberson’s contentions, the agreement of the parties to extend filing time until the conclusion of settlement negotiations, which was not formalized and filed with the trial court, would not prevent an automatic default. “A request for an extension of time governed by the CPA must be made before the expiration of the original period prescribed by the statute (OCGA § 9-11-6 (b)), and by written stipulation of counsel filed in the action. A private agreement between counsel extending time to file pleadings is not binding except when in compliance with this code section and it is filed with the court.” (Citations and punctuation omitted.) Fadum v. Liakos, 186 Ga. App. 556-557 (1) (367 SE2d 843) (1988).

In addition, the filed stipulations of the parties were too late to preclude automatic default. Because Roberson failed to file his answer before June 27, 1997, the case was in automatic default. OCGA § 9-11-55 (a). Pursuant to OCGA § 9-11-55 (a), Roberson could have opened the default within 15 days thereafter as a matter of right, but only by filing án answer and paying costs. Roberson did not do this, but instead filed a stipulation on July 9, 1997, in a belated attempt to extend the filing time for his answer until July 15,1997. A second stipulation to extend filing time was not filed until July 17, 1997 — two days after the first stipulation expired. Thus, even if the first stipulation had been effective, the case would have gone into automatic default as soon as the time extension in the first stipulation expired. The third and final stipulation of the parties purported to extend the filing time through August 4, 1997.

Relying on the November 12, 1997 letter from Gnann’s counsel, Roberson conténds that his answer was not due until December 2, 1997, 15 days after Gnann’s attorney stated he would file a motion for default judgment. This assertion is without merit. The letter merely acknowledged that a private agreement had been entered between the parties that the answer would not be due until discovery discussions ended. It also stated that the established deadline for settling the case expired on October 31, 1997, and Roberson’s answer was now overdue. It is of no legal significance that Gnann stated in the letter that he would file a motion for default judgment if Roberson’s answer was not filed by November 17, 1997. The letter did not extend the statutory time required for the filing of Roberson’s answer or serve to open the default. See OCGA §§ 9-11-6 (b); 9-11-12 (a); 9-11-55 (a).

Since neither the stipulations nor the private agreement was in compliance with OCGA § 9-11-6 (b), Roberson’s second enumeration of error is without merit.

3. Roberson argues that even if he was in default, Gnann impliedly waived the default by his conduct. Roberson cites Muscogee Realty Dev. Corp. v. Jefferson Co., 252 Ga. 400 (314 SE2d 199) (1984); Hamm v. Willis, 201 Ga. App. 723 (411 SE2d 771) (1991); and Ewing v. Johnston, 175 Ga. App. 760 (334 SE2d 703) (1985), in support of this contention.

The facts of those cases are distinguishable from facts in this case. In Muscogee Realty, supra, “the plaintiff allowed the case to proceed to trial without moving that the defaulting defendants’ answers be stricken and/or for a judgment on the pleadings because of the late filing of the answers.” Id. at 402. In this case, Gnann moved for default judgment even before Roberson filed his answer. In Hamm, supra, unlike in this case, the appellant waited to raise the issue of default until appeal and did not move for entry of default judgment before the trial court. Furthermore, none of the waiver factors discussed in Hamm, supra at 726 (3), is present in this case. In Ewing, supra at 761, as in Hamm, the issue of default was not raised until the appeal.

Default judgment is a drastic sanction and is not favored in the law. Ewing, supra at 764 (1) (c). However, Roberson’s pleading tactics constituted a significant departure from the requirements of the CPA. Under the totality of the circumstances, we decline to hold that Gnann waived his right to assert a motion for default judgment. The record reveals that Gnann consistently attempted to give Roberson opportunity to file his answer before seeking default judgment, but that he did not allow the case to proceed to trial without asserting his right to a default judgment. We will not invoke waiver against Gnann for his attempts to accommodate Roberson. This enumeration of error is without merit.

4. Roberson argues that the trial court abused its discretion when it denied his motion to open the default judgment, as he had met the requirements of OCGA § 9-11-55 (b). We cannot agree.

A default may be opened if the defaulting party satisfies four conditions and one of the required three grounds. The four conditions are a showing made under oath, an offer to plead instanter, an announcement of ready to proceed to trial, and setting up a meritorious defense. The three grounds are providential cause, excusable neglect, and a proper case. See OCGA § 9-11-55 (b); Bryant v. Haynie, 216 Ga. App. 430, 431 (1) (454 SE2d 533) (1995).

While generally the opening of a default rests within the sound discretion of the trial court, “compliance with the four conditions is a condition precedent; in its absence, the trial judge has no discretion to open the default.” (Citation and punctuation omitted.) Forrister v. Manis Lumber Co., 232 Ga. App. 370, 373 (3) (501 SE2d 606) (1998). Examination of Roberson’s verified answer and accompanying affidavit, filed on December 2, 1997, and his response to Gnann’s motion for default judgment, filed on December 29, 1997, reveals that these documents do not satisfy all of the requirements necessary to open a default judgment. The verified answer does not, standing alone, expressly contain a motion to open default judgment or a legal excuse for late filing. See Atlanta Med. &c. Corp. v. Financial Software, 227 Ga. App. 311, 312 (489 SE2d 93) (1997). The unsworn response which purports to contain an alternative motion to open default was filed more than three weeks after the verified answer was filed and does not contain any legal excuse for its delay in filing. Further, neither the answer and its accompanying affidavit nor the response contains an express announcement that Roberson was ready to proceed to trial, as required by OCGA § 9-11-55 (b). Because Roberson failed to comply with all four conditions of § 9-11-55 (b), the trial court did not have discretion to open the default. Forrister, supra. We will not reverse the correct judgment of a trial court regardless of the reason therefor. See Shapiro v. Lipman, 259 Ga. 85, 86 (377 SE2d 673) (1989).

In view of our holding, we need not determine whether the trial court erred in holding that Roberson’s response did not “set out sufficient basis to claim excusable neglect in failing to file an [ajnswer beyond August 4th as required to grant a motion to open default.”

5. The trial court did not err in finding that Gnann’s claimed damages for money had and received were liquidated. Liquidated damages are an amount certain and fixed, either by the act and agreement of the parties, or by operation of law; a sum which cannot be changed by proof; it is so much or nothing; and that term does not necessarily refer to a writing. Sellers v. Nodvin, 207 Ga. App. 742, 746 (3) (429 SE2d 138) (1993). The complaint, as properly construed by the trial court, averred that Roberson was holding $2,725,000 belonging to the plaintiff and that Roberson had entered into a 50 percent attorney fee contract with his client. Thus, the amount of damages sustained was readily ascertainable by mathematical calculation. The trial court simply determined from the complaint the amount of the settlement funds received by Roberson and deducted from that amount the maximum amount to which Roberson could have been entitled as attorney fees. This calculable amount of damages was $1,362,500. “A debt is liquidated when it is rendered certain what is due and how much is due. That certainty need not be contemporaneous with the agreement out of which it results.” (Citations and punctuation omitted.) Stinson v. Dept. of Human Resources Credit Union, 171 Ga. App. 303, 304 (2) (319 SE2d 508) (1984). In this case, “the exact amount due is easily ascertainable by simple mathematical calculation, and the damages are liquidated. [Cit.]” Galanti v. Emerald City Records, 144 Ga. App. 773, 774 (1) (242 SE2d 368) (1978).

Decided November 4, 1998

David Roberson, pro se.

Karsman, Brooks & Callaway, Dana F. Braun, Donald C. Bowman, Jr., Edenfield, Cox, Bruce & Classens, Gerald M. Edenfield, Susan W. Cox, for appellee.

Judgment affirmed.

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


text:
    A98A2423.
    MOONEY v. MOONEY.
    (508 SE2d 766)
   Eldridge, Judge.

Plaintiff-appellant Patsy Ann Mooney contends that the trial court erred in dismissing her complaint for failure to state a claim upon which relief can be granted, pursuant to OCGA § 9-11-12 (b) (6). We agree with the plaintiff and reverse the order of the trial court.

“A motion to dismiss for failure to state a claim upon which relief may be granted should not be sustained unless (1) the allegations of the complaint disclose with certainty that the claimant would not be entitled to relief under any state of provable facts asserted in support thereof, and (2) the movant establishes that the claimant could not possibly introduce evidence within the framework of the complaint sufficient to warrant a grant of the relief sought. In deciding a motion to dismiss, all pleadings are to be construed most favorably to the party who filed them, and all doubts regarding such pleadings must be resolved in the filing party’s favor. Anderson v. Flake, 267 Ga. 498, 501 (2) (480 SE2d 10) (1997).” (Punctuation omitted.) Cellular One v. Emanuel County, 227 Ga. App. 197-198 (489 SE2d 50) (1997).

In this case, the plaintiff filed a “Petition for Domestication of a Foreign Judgment and for Child Support” with the Gwinnett County Superior Court in January 1998; this petition was amended on May 8, 1998, to seek child support for the parties’ grandchild, based upon the defendant’s promise to pay support. Following such amendment, the plaintiff’s complaint set forth the following facts: The plaintiff and the defendant were married in January 1966. In 1971, the defendant formally adopted the plaintiff’s son, Steve Mooney. Steve Mooney is the natural father of the parties’ grandchild, A. M. M.; at the time of this opinion, A. M. M. is approximately 14 years old. Between 1985 and 1988, A. M. M. resided with the parties herein “on a transitional basis.” Between 1988 and 1990, the child resided exclusively with the parties.

In August 1990, the Rutherford County General Court of Justice, District Court Division, in the state of North Carolina, awarded joint custody of A. M. M. to the plaintiff and the defendant, with the consent of both of A. M. M.’s natural parents. In such order, both natural parents retained their parental rights and were granted reasonable visitation privileges.

The child continued to reside with the plaintiff and the defendant until they divorced in March 1992; the final divorce decree contained no provision for financial support of A. M. M. The plaintiff filed the instant action in January 1998, seeking to domesticate the North Carolina court’s custody order and requesting the trial court to order the defendant to pay child support. The defendant answered the complaint and filed a motion to dismiss under OCGA § 9-11-12 (b) (6).

Following a rule nisi hearing on the motion in May 1998, the plaintiff amended her complaint to allege that the defendant had repeatedly promised to financially support A. M. M. The plaintiff asserted that the defendant made such promise in 1990, when the couple petitioned the North Carolina courts for temporary custody of the child. She alleges that such promise was a “condition precedent” to her agreement to accept custody of the child and, further, that she relied on that promise to her detriment, which implies that she would not have accepted custody without such promise of support. According to the plaintiff, the defendant reaffirmed his promise of financial support following the couple’s separation and, again, following their divorce in 1992.

On May 13, 1998, the trial court dismissed the plaintiff’s action for child support, pursuant to OCGA § 9-11-12 (b) (6). In such order, the trial court found that the defendant could not be required to pay child support for his grandchild absent his express legal agreement to do so. See Brannon v. Brannon, 261 Ga. 565 (407 SE2d 748) (1991); see also Foltz v. Foltz, 238 Ga. 193, 194 (232 SE2d 66) (1977). Further, in the same order, the trial court determined that the plaintiff’s pleadings did not establish a cause of action under the doctrine of promissory estoppel. See OCGA § 13-3-44 (a); Wright v. Newman, 266 Ga. 519, 520 (467 SE2d 533) (1996). The plaintiff specifically takes issue with this latter finding.

1. Under OCGA § 13-3-44 (a), “[a] promise which the promisor should reasonably expect to induce action or forbearance on the part of the promisee or a third person and which does induce such action or forbearance is binding if injustice can be avoided only by enforcement of the promise. The remedy granted for breach may be limited as justice requires.” The Supreme Court of Georgia has held that “[a]ny benefit accruing to him who makes the promise, or any loss, trouble, or disadvantage undergone by, or charge imposed upon, him to whom [a promise] is made, is sufficient consideration” to support enforcement of a promise under the doctrine of promissory estoppel. (Citations, punctuation and footnote omitted.) Pepsi Cola Bottling Co. &c. v. First Nat. Bank &c., 248 Ga. 114, 116 (2) (281 SE2d 579) (1981). See also Fidelity &c. Co. of Maryland v. West Point Constr. Co., 178 Ga. App. 578, 579 (1) (344 SE2d 268) (1986); Wright v. Newman, supra at 521 (Sears, J., concurring). Further, “[promissory estoppel requires only that the reliance by the injured party be reasonable. . . . [It] does not require that the injured party exhaust all other possible means of obtaining the benefit of the promise from any and all sources before being able to enforce the promise against the promisor.” (Footnote omitted; emphasis in original.) Id. at 522 (Sears, J., concurring).

Without specifically addressing the plaintiff’s allegations regarding the defendant’s promises to financially support A. M. M., the trial court in this case found that the pleadings failed to demonstrate that any alleged promise by the defendant caused the plaintiff “to forego a valuable legal right to her detriment.” See Pepsi Cola Bottling Co. &c. v. First Nat. Bank &c., supra at 116-117 (2). In so finding, the trial court noted that A. M. M.’s parents are known to the plaintiff and are still legally obligated to support the child, apparently implying that the plaintiff may be able to seek support from them.

However, the trial court is precluded from drawing such negative inferences from the pleadings when considering the defendant’s motion to dismiss for failure to state a claim. In drawing such inference, the trial court’s order attempted to distinguish this case from Wright v. Newman, supra. In Wright v. Newman, Wright challenged a trial court’s order requiring him to pay child support to Newman, the child’s mother, after DNA testing established that he was not the child’s natural father. In affirming the trial court’s order, the Supreme Court of Georgia recognized that, even absent a statutory requirement to pay child support, “a legally enforceable obligation to provide child support can be ‘based upon parentage or contract.’ [Cit.]” Id. at 519. See also Foltz v. Foltz, supra; McClain v. McClain, 235 Ga. 659, 661 (1) (221 SE2d 561) (1975). The Court found that the defendant knew he was not the natural father of the child, yet still held himself out as the child’s father for ten years; had himself named as the father on the child’s birth certificate; gave the child his surname; and promised to “assume all of the obligations and responsibilities of fatherhood, including that of providing support.” Wright v. Newman, supra at 520. The Court also found that the child’s mother relied on his promises of continuing support and “refrained from identifying and seeking support from the child’s natural father” for ten years. Id. Therefore, “[i]f, after ten years of honoring his voluntary commitment, Wright [was] now allowed to evade the consequences of his promise, an injustice to Newman and her son would result.” Id. at 521. Accordingly, the Court held that, under the doctrine of promissory estoppel, once Newman established her detrimental reliance on Wright’s promises, Wright could be compelled to fulfill his obligation to pay child support, as long as he made such promise with the knowledge that he was not the child’s natural parent. Id. at 520-521; cf. Smith v. Dept. of Human Resources, 226 Ga. App. 491, 494 (2) (487 SE2d 94) (1997).

In this case, the plaintiff’s complaint alleges that she detrimentally relied upon the defendant’s repeated promises to financially support the child. The only question before this Court is whether the allegations in the plaintiff’s petition, viewed in a light most favorable to the plaintiff, set out a cause of action which would entitle the plaintiff to relief if she is able to prove such allegations at trial. We find that the petition meets this standard in that it sets out the essential elements of a cause of action under the doctrine of promissory estoppel.

2. Further, the petition sets out a cause of action to enforce an express oral contract between the parties. “A contract is an agreement between two or more parties for the doing or not doing of some specified thing.” OCGA § 13-1-1. See also OCGA §§ 13-1-5; 13-1-6. Viewed in the plaintiff’s favor, the pleadings assert that the defendant promised to financially support the child prior to acquiring joint custody in 1990 and that such promise was a “condition precedent” to the plaintiff’s acceptance of joint custody. Further, consideration for the defendant’s alleged subsequent promises can be found in the plaintiff’s continued care of the child.

Therefore, the trial court’s order dismissing this action under OCGA § 9-11-12 (b) (6) was error and must be reversed.

Judgment reversed.

McMurray, P. J., and Blackburn, J., concur.

Decided November 4, 1998.

C. Suzette Ellis-Hoyle, for appellant.

Charles A. Mullinax, for appellee.

       In a separate order entered the next day, the trial court granted the petition to domesticate the North Carolina custody order; the defendant did not object to such action. Accordingly, it appears that the defendant secured joint custody of A. M. M., while concurrently avoiding the responsibility to provide financial support for the child.

       In Brannon v. Brannon, supra, a defendant expressly agreed, in a settlement contract incorporated into his divorce decree, to pay his ex-wife child support for the care of their grandchild.