text:
    A93A0315.
    In the Interest of C. K. M., a child.
    (427 SE2d 585)
   McMurray, Presiding Judge.

Appellant Muir appeals the order of the juvenile court terminating his parental rights in his eight-year-old daughter, C. K. M. Held:

Permanent custody of the child was granted to the mother by a divorce decree in 1985. Appellant was directed to pay child support in the amount of $40 per week and to maintain health insurance on the child. At the time of the hearing appellant had failed to pay the child support or maintain the health insurance for a period just less than three years. There was ample evidence of appellant’s financial resources during this interval to support the juvenile court’s finding that the failure to comply with the order to pay child support for a period of more than 12 months was wanton and wilful. Compare In the Interest of M. H. F., 201 Ga. App. 56 (410 SE2d 167). The juvenile court did not abuse its discretion in finding that there was clear and convincing evidence of parental misconduct and inability to care for the child. Any lack of evidence addressing the requisites stated in OCGA § 15-11-81 (b) (4) (A) (iv) is not germane to our review of the juvenile court’s order since there was ample clear and convincing evidence to support the juvenile court’s finding of parental misconduct and inability to care for the child as set forth in OCGA § 15-11-81 (b) (2).

Nor do we find any abuse of discretion in the juvenile court’s finding that termination of appellant’s parental rights is in the best interest of the child. In addition to appellant’s failure to pay court ordered child support, the juvenile court was authorized to find that he has not made any bona fide attempt to make contact with the child in almost three years preceding the termination hearing. The evidence shows that appellant is an alcoholic who has ceased attempts at rehabilitation. When he last telephoned the child, appellant was drunk and told her he was not going to send her a gift. Three days prior to the termination hearing, appellant was in a bar with his other child. Also, appellant has a history of fighting connected with his drinking problem.

Appellant has abducted and absconded with C. K. M. in the past, and the mother of appellant’s other child has taken out warrants against him for interference with custody. In view of the unstable lifestyle of appellant and the length of time since there has been any contact between appellant and C. K. M., the juvenile court could reasonably find that the resumption of contact would cause the child serious mental, emotional, and moral harm.

Finally, appellant cites Morris v. Sheffield, 214 Ga. 63 (102 SE2d 595) for the proposition that a “clean hands” doctrine is applicable to the case sub judice. Morris deals with the rule that a trial court may refuse to enforce child support provisions of a divorce decree at the behest of one who is refusing to comply with the same decree. This argument is apparently predicated on appellant’s evidence that the mother, who initiated the termination proceeding, has withheld visitation with the child in retaliation for appellant’s failure to pay child support. The theory advocated by appellant lacks merit under the facts of the case sub judice in that the juvenile court has attributed the lack of contact between appellant and the child to appellant’s failure to make any bona fide attempt to establish such contact rather than to any conduct of the mother.

Decided February 3, 1993.

Andrews & Seery, Stephen H. Andrews, for appellant.

McCollum & Rawlins, Elliott P. McCollum, Jr., Altman, Lane & Lilly, Roy M. Lilly, Jr., for appellee.

Judgment affirmed. Beasley and Cooper, JJ., concur.


source: Caselaw Access Project

author: Pope, Judge. Carley, Presiding Judge,

license: Public Domain

text:
    A92A1267.
    STRINGER et al. v. SOUTHEASTERN STAGES, INC. et al.
    (427 SE2d 494)
   Pope, Judge.

While a passenger on a bus en route from Augusta to Atlanta, appellant-plaintiffs’ son was shot to death in a sudden and unprovoked criminal assault by a co-passenger. As a result, plaintiffs filed the instant wrongful death action against appellee-defendants, the corporation which operated as a common carrier and its agent. After discovery, defendants moved for summary judgment and the trial court granted the motion. Plaintiffs appeal.

Plaintiffs assert several theories of liability against defendants. Defendants admitted that the applicable industry and regulatory rules prohibit the transportation of loaded firearms on a common carrier. By way of enforcing this rule, defendants conducted only a visual inspection of passengers as they boarded the bus. First, plaintiffs assert that defendants breached the duty of extraordinary care imposed upon common carriers for the safety of passengers by failing to take precautions, beyond the mere visual inspection of boarding passengers, to prevent a passenger from boarding a bus while in possession of a gun. To support the argument that additional precautions were reasonably necessary in this case, plaintiffs argue the unreasonable risk of harm to passengers from violent crimes was foreseeable by virtue of prior substantially similar crimes. Knowledge of the unreasonable risk of criminal attack upon persons to whom a duty of care is owed “may be demonstrated by evidence of the occurrence of prior substantially similar incidents.” Savannah College of Art & Design v. Roe, 261 Ga. 764, 765 (409 SE2d 848) (1991). See also Lau’s Corp. v. Haskins, 261 Ga. 491 (1) (405 SE2d 474) (1991); MARTA v. Allen, 188 Ga. App. 902 (374 SE2d 761) (1988). Even though the cited cases involved premises liability, we see no reason why the rule of these cases must be confined to knowledge of a dangerous static condition on real property, as proposed by the dissenting opinion. Thus, we see no reason why this rule is not applicable to the duty of care owed to passengers by a common carrier.

Defendants argue plaintiffs presented no evidence of any substantially similar incidents since no other reported case exists in which one of defendants’ passengers was assaulted on a bus by a co-passenger. The record reflects, however, that in 1988 a bus driver was assaulted by a knife-wielding passenger and in 1986 a bus driver was repeatedly stabbed by a passenger. The shooting at issue in this case occurred in June 1989. Simply because the previous incidents involved knives instead of a gun and drivers instead of passengers does not establish, as a matter of law, that the previous incidents are not substantially similar. Certainly, the criminal attack of a driver with a weapon while he is driving a bus places all the passengers on board at risk from the criminal act. “Whether a ‘substantial similarity’ exists must be determined by the facts of each individual case. It is not required that the offenses be identical. ‘All that is required is that the prior (incident) be sufficient to attract the [defendant’s] attention to the dangerous condition which resulted in the litigated (incident).’ Pembrook Mgt. v. Cossaboon, 157 Ga. App. 675, 677 (278 SE2d 100) (1981).” MARTA v. Allen, 188 Ga. App. at 903. We cannot hold as a matter of law that a jury could not find from the evidence that the previous assaults were sufficient to alert defendants to the dangerous condition or threat posed by passengers carrying weapons onto buses and that defendants failed to exercise extraordinary care to guard against such danger. Thus, the trial court erred in granting summary judgment to defendants.

Plaintiffs also argue that a jury could find defendants failed to exercise the appropriate standard of care under the circumstances because defendants failed to follow their own safety rules. We agree. Defendant Travel, Inc. acted as the agent for Southeastern Stages, Inc. in managing the Augusta bus terminal at which the co-passenger assailant bought a ticket and boarded the bus. Travel, Inc.’s employee manual contains the rule that “[a] 11 accidents and unusual occurrences, however trivial they may seem at the time, involving customers, employees, or other persons, must be reported immediately to a supervisor of the company.” The evidence, when viewed in the light most favorable to the non-moving party, shows that the assailant told the agent who sold him a ticket that there “probably would be an undercover cop . . . looking for him” and instructed the agent “to tell them that he hadn’t seen him.” Later, the assailant reminded the agent not to “forget what I told you.” The record contains the testimony of the ticket agent who stated he thought nothing of the statement at the time it was made and did not report it to a supervisor. A newspaper reporter who prepared an article about the event, however, testified the ticket agent told her about the customer’s statements and when she asked the ticket agent what he thought of the shooting, he responded, “I bet you that’s him.” In his deposition testimony, the agent referred to the customer’s statements as “unusual.” Plaintiffs argue the evidence thus creates an issue for jury determination concerning whether the agent violated the company’s rule requiring employees to report unusual occurrences to a supervisor and thus breached a duty to the victim.

“Privately established ‘rules are admissible as illustrative of negligence, but the violation of such a rule is not negligence in and of itself. [Cits.]’ [Cit.]” Luckie v. Piggly-Wiggly Southern, 173 Ga. App. 177, 178 (325 SE2d 844) (1984). Private guidelines are admissible and relevant to show what constitutes the exercise of the appropriate standard of care in a specific situation. Id. Thus, we agree with plaintiffs that a jury could find defendants violated their own private guidelines in this case and from this finding could conclude defendants failed to exercise the appropriate standard of care owed to the victim in this case.

Finally, plaintiffs assert that the behavior of the assailant, in making the unusual remarks to the ticket agent, creates an issue for jury determination concerning whether defendants knew, or in the exercise of extraordinary care should have known, that the assailant posed an unreasonable risk of harm to the victim. In their motion for summary judgment, defendants relied upon cases from the earlier half of this century which held that even the intoxication of a passenger, who was not otherwise behaving boisterously, was not sufficient to alert a carrier that the passenger posed an unreasonable threat of harm to fellow passengers. Compare, e.g., Pinnell v. Yellow Cab Co., 77 Ga. App. 73 (2) (47 SE2d 774) (1948) and Powell v. Beasley, 57 Ga. App. 231 (194 SE 926) (1938) (in which the passenger’s mere intoxication was insufficient to put defendant common carrier on notice that the passenger posed a threat to the safety of other passengers) with Hillman v. Georgia R. & Banking Co., 126 Ga. 814 (56 SE 68) (1906) and Grimsley v. Atlantic Coast Line R. Co., 1 Ga. App. 557 (1) (57 SE 943) (1907) (in which an intoxicated passenger’s boisterous behavior created an issue for jury determination concerning whether the defendant common carrier should have known the passenger posed a threat to the safety of other passengers). From these cases, defendants argued the evidence of the assailant’s odd statements is insufficient to show they breached the duty of extraordinary care owed to the victim because the assailant was neither intoxicated nor behaved in a violent manner.

Before a common carrier may be liable for injury from a criminal assault by another passenger, the carrier must have “ ‘[knowledge of the passenger’s danger or of facts and circumstances from which that danger may reasonably be inferred. . . .’ ” Savannah, Fla. & W. R. Co. v. Boyle, 115 Ga. 836, 839 (42 SE 242) (1902). Yet, our analysis in this case must go beyond whether the assailant displayed boisterous behavior which would have provided notice to defendants that the assailant posed a threat of harm to other passengers. A jury may determine from the evidence of previous violent attacks with weapons on board defendants’ buses that defendants failed to exercise extraordinary diligence in conducting only a visual inspection of the assailant for weapons in this case. A jury may determine from the defendants’ own rules, which are relevant to the issue of the standard of care owed in a particular situation, that the standard of care owed to the victim in this case was greater than that imposed by those older cases, cited above, which relieved a common carrier of liability if the carrier was not alerted to the risk of harm to fellow passengers by a passenger’s display of boisterous behavior. A jury may conclude that the customer’s statements supplied defendants with the facts and circumstances from which a danger to other passengers could have been discovered had the defendants followed their own rules.

The duty imposed upon a common carrier for the safety of passengers is that of extraordinary diligence. OCGA § 46-9-132. A jury may, indeed, conclude, as defendants argue, that the customer’s statements were so vague as not to arouse in the extraordinarily diligent mind the knowledge that the customer was potentially dangerous to other passengers. On the other hand, hostage-taking, mass murder and other anti-social behavior in public places is regretfully not uncommon in this time. In light of the evidence of previous attacks by passengers carrying deadly weapons onto the bus, we cannot conclude as a matter of law that a jury could not find that the customer’s statements were so “unusual” so as to require, pursuant to defendants’ rules, a report to a supervisor who, in the exercise of extraordinary diligence would have discovered that the customer was armed. Thus, the trial court erred in granting defendants summary judgment.

Judgment reversed. McMurray, P. J., Cooper and Johnson, JJ., concur. Beasley, J., concurs in judgment only. Sognier, C. J., Birdsong, P. J., Carley, P. J., and Andrews, J., dissent.

Carley, Presiding Judge,

dissenting.

In my opinion, affirmance of the grant of summary judgment in favor of appellee-defendants is mandated by the controlling Supreme Court authority of Savannah, Fla. & W. R. Co. v. Boyle, 115 Ga. 836 (42 SE 242) (1902). Since, in my opinion, the majority does not successfully distinguish that decision and I am unable to do so, I must dissent.

In a case predicated upon an alleged violation of OCGA § 51-3-1, prior knowledge of the owner or occupier that dangerous conditions exist on his real property which subject invitees to an unreasonable risk of criminal attack is a prerequisite to recovery. Savannah College of Art & Design v. Roe, 261 Ga. 764, 765 (2) (409 SE2d 848) (1991); Lau’s Corp. v. Haskins, 261 Ga. 491, 492 (1) (405 SE2d 474) (1991); McCoy v. Gay, 165 Ga. App. 590, 591 (302 SE2d 130) (1983). However, the instant case is not predicated upon an alleged violation of OCGA § 51-3-1. Appellants’ son was not killed in a criminal attack occurring on real property owned or occupied by appellees. He died as a result of a criminal attack occurring on a bus owned and operated by appellees. Accordingly, the focus is not upon appellees’ knowledge of any allegedly dangerous static condition on their real property. The focus is upon appellees’ knowledge of the violent propensity of one of their specific passengers who was in transit on a particular bus at a certain time. A carrier “is bound to use that extreme care and caution contemplated of very prudent and thoughtful persons to anticipate an injury threatened to the passenger by fellow passengers or third persons.” Grimsley v. Atlantic Coast Line R. Co., 1 Ga. App. 557 (1) (57 SE 943) (1907). However, “ ‘[k]nowledge of the passenger’s danger, or of facts and circumstances from which that danger may reasonably be inferred, is necessary to fix the carrier’s liability in this class of cases.’ [Cit.]” Savannah, Fla. & W. R. Co. v. Boyle, supra at 839. “ ‘ “While it is unquestionably the duty of a carrier to exercise extraordinary care for the protection of passengers, the rule does not (require the carrier to take measures to protect its passengers from the intentional misconduct of third persons) until something occurs ... to put (the carrier) on notice that. . . such conduct . . . might be reasonably anticipated. . . .” ’ [Cits.]” Paschal v. Ferguson Transport, 189 Ga. App. 447, 448 (375 SE2d 901) (1988).

Construing the evidence most favorably for appellants shows the following: At the time the assailant purchased his ticket, he told the ticket agent that “there probably would be an undercover cop looking” for him and that the ticket agent was “to tell them that he hadn’t seen him.” After reminding the ticket agent not to “forget what I told you,” the assailant boarded the bus and travelled peaceably until, without warning or provocation, he drew a gun and shot and fatally wounded appellants’ son.

On this evidence, there is obviously nothing in the assailant’s physical conduct which would evince his potential for violence. He was not shown to be intoxicated and, even if he were, “[t]here is no presumption that a person under the influence of intoxicating liquors . . . will commit an assault without provocation, nor will an inference be authorized from the mere fact of intoxication that a person in such condition might be reasonably expected to so conduct himself.” Powell v. Beasley, 57 Ga. App. 231, 232-233 (194 SE 926) (1938). See also Pinnell v. Yellow Cab Co., 77 Ga. App. 73 (2) (47 SE2d 774) (1948). Compare Hillman v. Ga. R. & Banking Co., 126 Ga. 814 (56 SE 68) (1906) (boisterous pistol-wielding drunk); Grimsley v. Atlantic Coast Line R. Co., supra (boisterous pistol-wielding drunk).

Accordingly, resolution of the instant case should turn on whether the words attributed to the assailant would be sufficient to evince his propensity to commit violence. The literal words themselves do not suggest the assailant’s potential for unprovoked violence. He did not threaten anyone. If deemed to be true, the words merely impart notice that, at some future time, an undercover officer might be interested in the assailant’s whereabouts for some unspecified reason. However, the words do not intimate that the assailant feared imminent arrest and was presently armed or would otherwise present a danger to his co-passengers on the bus. If deemed to be false, the words merely impart notice that the assailant either was making a bad joke or was mentally dysfunctional. However, the words do not intimate that the assailant was so dangerously paranoid as to be presently armed and a potential source of danger to his co-passengers on the bus.

In Savannah, Fla. & W. R. Co. v. Boyle, supra, the carrier had knowledge that two of its passengers had actually committed the crime of stealing a ride and had been placed under arrest. On this evidence, the Supreme Court held: “While it may be that even an ordinarily prudent person would have reason to apprehend that [the two passengers] under arrest for a misdemeanor would escape if afforded a reasonable opportunity, still an extremely careful person could not reasonably apprehend that in making such an attempt they would, in order to effectuate it, make a murderous assault with a deadly weapon either upon one who made an effort to thwart this attempt or upon another who was taking no part in such effort.” Savannah, Fla. & W. R. Co. v. Boyle, supra at 841. In the instant case, appellees had even less knowledge. They had no actual knowledge that the assailant had committed any previous crime or that his freedom to travel on the bus should be restrained for any reason. They had actual knowledge only that the assailant had made some vague statements as to the reason why he wished to board the bus, which statements did not suggest that he would constitute a present danger to any of his co-passengers on the bus. “There is nothing in the [record] from which it appears that the employees in charge of the [bus], in the exercise of that high degree of care which the [bus] company owed to [appellants’ son] to protect him from injury at the hands of those who might be upon [the bus] with [their] consent or with [their] knowledge, could and should have foreseen that the [assailant] would, after having [boarded] the [bus], attempt to . . . commit a murderous [sudden and unprovoked] assault upon [his co-passengers].” Savannah, Fla. & W. R. Co. v. Boyle, supra at 841.

Decided December 16, 1992

Reconsiderations denied February 4, 1993

Butler, Wooten, Overby & Cheeley, James E. Butler, Jr., Charles F. Overby, Peter J. Daughtery, Jones, Boykin & Associates, John W. Jones, Noble L. Boykin, Jr., for appellants.

Lorrenzo C. Merritt, Lokey & Bowden, Malcolm Smith, Mel Mobley, for appellees.

It follows that the trial court’s grant of summary judgment in favor of appellees should be affirmed. “ ‘ “While it is unquestionably the duty of a carrier to exercise extraordinary care for the protection of passengers, the rule does not apply under the circumstances of this case until something occurs to call into play the exercise of the great degree of care. It was not [shown] that there was anything to put [appellees] on notice that any [unprovoked violent] conduct. .. might be reasonably anticipated, except that the assailant [made vague nonthreatening statements]. This was insufficient [to withstand summary judgment]. There is no presumption that a person [who makes such vague non-threatening statements] will commit an. assault without provocation, nor will an inference be authorized[,] from the mere fact [that such statements were made,] that a person [making such statements] might be reasonably expected to so conduct himself. . . .” ’ [Cits.]” Pinnell v. Yellow Cab Co., supra at 75-76.

It is possible that the death of appellants’ son may not have occurred if all passengers had been subjected to a frisk of their persons or if all passengers had been required to pass through a metal detector. However, appellees are not insurers of the safety of their passengers. Mattox v. MARTA, 200 Ga. App. 697 (1) (409 SE2d 267) (1991). All that is required is the exercise of extraordinary diligence and, as I construe Savannah, Fla. & W. R. Co. v. Boyle, appellees may not be found to have breached that duty to exercise extraordinary diligence unless and until they knew or should have known of the dangerous propensity of the specific assailant who boarded the bus with appellants’ son. Accordingly, unless and until Savannah, Fla. & W. R. Co. v. Boyle, supra, is overruled, I am constrained to follow it and to dissent to the majority’s reversal of the grant of summary judgment in favor of appellees.

I am authorized to state that Chief Judge Sognier, Presiding Judge Birdsong and Judge Andrews join in this dissent.


author: Pope, Chief Judge.

text:
    A92A1929.
    REIMBURSEMENT CONSULTANTS, INC. v. GEORGIA INSURERS INSOLVENCY POOL.
    (427 SE2d 519)
   Pope, Chief Judge.

Plaintiff Reimbursement Consultants, Inc. (“RCI”) entered into a contract with now insolvent American Mutual Liability Insurance Company (“American Mutual”). Pursuant to the terms of that contract RCI agreed to seek on behalf of American Mutual recovery of funds to which American Mutual was entitled in certain workers’ compensation cases from the Subsequent Injury Trust Fund (“SITF”) in exchange for a fee of 15 percent of the funds received.

After RCI had performed services to obtain the funds from the SITF, but before those funds were received by American Mutual, the insurance company was placed into receivership and ordered liquidated. Pursuant to its enabling statute, the Georgia Insurers Insolvency Pool (“GIIP”) assumed the obligation for the payment of certain claims owed by American Mutual. RCI contends that because the GIIP received certain funds from the SITF which RCI was instrumental in obtaining, the GIIP must pay RCI its fee of 15 percent of the funds received from the SITF. RCI appeals from the trial court’s order granting summary judgment in favor of the GIIP and denying RCI’s motion for summary judgment.

We hold the trial court correctly granted GUP’s motion for summary judgment and denied RCI’s motion for summary judgment. RCI argues that the GIIP has become a “successor” or “affiliate” of American Mutual. See Northwest Preferred, Ltd. v. Williams, 184 Ga. App. 145 (360 SE2d 910) (1987). We agree with the trial court that the GUP’s relationship with American Mutual cannot be deemed to be that of “successor” or “affiliate” to now insolvent American Mutual; rather, it is at most a statutory receiver that is obligated to pay certain statutorily defined claims. The GIIP was created as a non-profit industry financed buffer between an individual policyholder and an insurer in the event the insurer becomes insolvent. Its purpose as stated in OCGA § 33-36-2 “is to provide a remedy for covered claims under property and casualty insurance policies when the insurer has become insolvent and is unable to perform its contractual obligations.” (Emphasis supplied.)

The trial court also correctly held that an action in quantum meruit has not been presented under the facts of this case. When the GIIP steps in to cover the claims of an insolvent insurer, it receives the benefit of the efforts of many persons and entities who have acted on behalf of the insolvent insurer. The Georgia legislature, however, has limited what claims it is obligated to pay on behalf of insolvent insurers in the Georgia Insurers Insolvency Pool Act to only “covered claims.” RCI does not contend that its claims against the GIIP are “covered claims” as that term is defined in the Act, OCGA § 33-36-3 (2) (A), rather it argues that to the extent the GIIP has received funds that resulted from efforts extended by RCI on behalf of American Mutual the GIIP has been unjustly enriched and RCI should be allowed to recover its fees in an action for quantum meruit. As we noted in Colwell v. Voyager Cas. Ins. Co., 184 Ga. App. 842 (363 SE2d 310) (1987), “[t]here is nothing in the language of the relevant statutory provisions to indicate that the remedial legislative intent is other than to provide only those insureds having unsatisfied contractual claims for benefits with a source of recovery other than their insolvent insurers.” Id. at 842. In that case the plaintiff sought to recover penalties, attorney fees and punitive damages from the GIIP. We refused to allow the recovery of penalties, attorney fees and punitive damages on the basis that such recovery would dissipate funds that were intended for insureds having “covered claims.” Id. at 843.

Decided January 14, 1993

Reconsideration denied February 4, 1993

Sullivan, Hall, Booth & Smith, Jack G. Slover, Jr., Jeffrey T. Wise, for appellant.

Chambers, Mabry, McClelland & Brooks, Wilbur C. Brooks, Stuart K. Theodore, for appellee.

As in Colwell, the fact that American Mutual has become an insolvent insurer whose coverage claims will be paid by the GIIP, does not make the GIIP an alternative source for RCI’s non-coverage claims against American Mutual. RCI’s proper remedy is to assert its claim against American Mutual.

Judgment affirmed. Carley, P. J., and Johnson, J., concur.


text:
    A92A1988.
    GLOVER v. FIRST NATIONAL BANK OF PAULDING COUNTY.
    (427 SE2d 520)
   Pope, Chief Judge.

On July 5, 1990, Robert G. Glover executed a note in the amount of $20,050 in favor of First National Bank of Paulding County (the “bank”). Glover later defaulted on the note and the bank filed an action seeking the sums owing pursuant to the note. Glover appeals the trial court’s grant of summary judgment in favor of the bank.

In his answer to the bank’s complaint, Glover raised the defense of fraud. In an affidavit filed in opposition to the bank’s motion for summary judgment, Glover averred that at the time he executed the note, he was employed by Kyle Watson Barrett. Barrett told Glover he had written a bad check on a loan that was then due at the bank. Barrett urged Glover to take out a loan at the bank in the amount of $20,000 to cover his bad check and pay off the loan that allegedly was due. Glover further averred that after he executed the note he learned that Barrett’s loan was not due and that the real reason Glover was requested by Barrett to incur the loan was that the loan officer with whom Glover dealt had over-extended Barrett’s credit limit and Glover’s loan funds were needed to bring Barrett’s credit line within the bank’s limits. Glover contends he would not have borrowed any money from the bank if he had known the true reason Barrett needed the funds he borrowed.

Decided January 14, 1993

Reconsideration denied February 4, 1993

Edwards, Friedewald & Grayson, James W. Friedewald, for appellant.

1. Glover argues the trial court erred in granting summary judgment to the bank because Glover was defrauded by the bank’s loan officer and Barrett to incur the loan. “[I]n the absence of special circumstances one must exercise ordinary diligence in making an independent verification of contractual terms and representations, failure to do which will bar (a defense) based on fraud. Moran v. NAV Svcs., 189 Ga. App. 825, 826-827 (3) (377 SE2d 909) (1989).” (Citations and punctuation omitted.) Gardiner v. McDaniel, 202 Ga. App. 663 (415 SE2d 303) (1992). The fraud alleged by Glover is that he was misled concerning why he should incur a loan for Barrett’s benefit. Glover does not aver, and there is no evidence to show, that he attempted to verify whether Barrett’s loan was due.

Contrary to Glover’s contention otherwise, under the facts of this case no special relationship of trust or confidence existed between the parties to this case. The evidence shows no special circumstances that justify relieving Glover of his duty to exercise due diligence on his own behalf. Accordingly, the trial court properly granted the bank’s motion for summary judgment.

2. In his second enumeration of error, Glover contends the trial court erred by not ruling on his request to allow a counterclaim against the bank. This court is a court for the correction of errors. Glover’s motion to amend to assert a counterclaim is still pending before the trial court and until the trial court rules on the pending motion nothing exists for this court to review.

3. The bank’s motion for damages for frivolous appeal is denied.

Judgment affirmed. Carley, P. J., and Johnson, J., concur.

Glen E. Stinson, for appellee.


author: Blackburn, Judge.

text:
    A92A2054.
    YOHO v. RINGIER OF AMERICA, INC.
    (427 SE2d 544)
   Blackburn, Judge.

The appellant, Wilson Gregg Yoho, filed this suit for damages against the appellee, Ringier of America, Inc. (“Ringier”), alleging that he suffered extensive injuries as the result of an explosion which occurred while he was performing services as a laborer for Accu-Rite Machine Company (“Accu-Rite”) at a printing plant owned and operated by Ringier. Ringier asserted that it was the statutory employer of Yoho as defined by OCGA § 34-9-8 (a) and, therefore, the only rights and remedies available to Yoho were workers’ compensation benefits pursuant to OCGA § 34-9-11 (a). Both parties filed motions for summary judgment. The trial court granted summary judgment to Ringier and denied Yoho’s motion, and Yoho appeals.

The facts are undisputed. Ringier operates a large industrial printing plant, including a maintenance department staffed by 45 persons. One of the maintenance department’s duties is to service a solvent recovery system located in an area outside the main plant building consisting of a series of large pipes, ducts and tanks designed to remove solvent contaminated air from the printing presses inside the plant to the tanks outside. The solvent-laden air passes through six large metal aftercoolers containing a series of coils which cool the air. In early 1991, engineers at Ringier determined that the aftercoolers needed to be removed and the coils repaired. Because the maintenance department was too busy to undertake the work, Ringier hired Accu-Rite for the job. A crane and operator were also hired independently to lower the aftercoolers to the ground. A critical prerequisite to the repair work was to purge the solvent recovery system of flammable vapors by running a number of blower motors for several hours. This job was entirely Ringier’s responsibility.

Accu-Rite was primarily a machine shop with no prior experience in working on solvent recovery systems, so its work was overseen by a Ringier maintenance supervisor, Kelvin Jones. The work was scheduled to be done while the plant was not operating, beginning with aftercooler number 4. Accu-Rite’s owner, Charles Merritt, and three employees arrived on Sunday, May 19, 1991, and began the work, but encountered difficulty in removing the bolts from the aftercooler because they were rusted and painted over. When Jones checked on their progress he found they were repairing the wrong aftercooler and directed them to the proper site. Later Jones acquainted Accu-Rite’s foreman with an easier method of removing the bolts, provided the necessary tools which Accu-Rite was lacking, and advised the workers on how to connect the crane cable attachment.

Because it took a full workday to complete the repairs on the first aftercooler, Accu-Rite’s foreman suggested to Merritt that he would like to use a torch to burn oif the bolts when they removed the next unit. Merritt discussed this with John Oldmixon, another maintenance supervisor for Ringier, who granted permission if Merritt obtained a “hot work permit” from Ringier on the date of the work. Ringier scheduled Accu-Rite and the crane operator to be at the plant the morning of Sunday, May 26, 1991, to remove aftercooler number 5 and replace it with repaired aftercooler number 4, as the plant was to be shut down for Memorial Day weekend. Ordinarily, a boiler tender and a security guard were the only Ringier employees who would have been at the plant, but Jones scheduled Reggie Hilliard to be present as acting supervisor to oversee Accu-Rite’s work. Very early that morning, Troy Pinson, Ringier’s boiler tender, ran the blowers in the solvent recovery system for several hours to purge it of flammable vapors.

Between 7:00 and 8:00 a.m., Merritt and four Accu-Rite employees (including the appellant) arrived at Ringier and were admitted by the security guard along with the crane operator. Accu-Rite’s foreman asked Hilliard if the system had been purged and asked for a hot work permit. Hilliard replied that the system had been purged and a permit would not be necessary. The Accu-Rite employees then commenced work, using a torch to remove the bolts, while Hilliard and Pinson watched. Jones arrived later and discussed various aspects of the work with Merritt. A small grease fire was started by sparks from the torch and put out by Pinson, who obtained a large rubber mat to place over a nearby blower motor to protect it from the sparks. Ringier further provided the Accu-Rite workers with two fire extinguishers, several tools and the gaskets to be put in place when the aftercoolers were reinstalled. Shortly after 10:00 a.m., when all but a few of the bolts had been removed, the explosion occurred in which the appellant was injured.

1. OCGA § 34-9-8 (a) provides that “[a] principal, intermediate, or subcontractor shall be liable for compensation to any employee injured while in the employ of any of his subcontractors engaged upon the subject matter of the contract to the same extent as the immediate employer.” Subsection (d) further states that this “Code section shall apply only in cases where the injury occurred on, in, or about the premises on which the principal contractor has undertaken to execute work or which are otherwise under his control or management.”

The appellant asserts that the Georgia Supreme Court established in Manning v. Ga. Power Co., 252 Ga. 404 (314 SE2d 432) (1984), that there cannot be a statutory employer pursuant to this provision unless there are two contracts where one is a subcontract of the other; and that here there are two contracts but no hierarchy of subcontractors or subletting, as Ringier simply has one contract with Accu-Rite to perform a certain task and a separate contract with the crane company to perform another task. The Manning court concluded that the “principal” referred to in subsection (a) meant a “principal contractor” as in subsection (d), “and not a principal party to whom an obligation to perform work is owed. Thus, a property owner, although he may be a ‘principal,’ is not a principal contractor within the meaning of this section and is not a statutory employer who is liable for workers’ compensation benefits or immune to tort liability by reason of the exclusive remedy provision of the Act, OCGA § 34-9-11____” Id. at 405.

However, an exception to this rule has since been carved out, which we find applicable here. In Wright v. M. D. Hodges Enterprises, 183 Ga. App. 632 (359 SE2d 700) (1987) (grant of cert, vacated, 257 Ga. 613 (363 SE2d 149) (1987)), the circumstances under which an owner may be a statutory employer were clarified: “If the owner is ‘merely in possession or control’ of the premises upon which the employee of a company under contract to the owner is injured, then the so-called ‘bright line’ rule would apply. In that event, the owner would not be considered the statutory employer of the injured employee unless the owner also serves as contractor ‘for yet another entity’ and has hired the injured employee’s employer to perform work under that contract on the employer’s premises. If, on the other hand, the employer is not ‘merely in possession or control of the premises’ but is actively involved in the enterprise in which the employee was injured, then the circumstances of the particular case should determine whether the owner is a statutory employer of the injured employee.” Id. at 633.

We conclude that under the facts in this case, Ringier served as its own general contractor in the repair and servicing of its solvent recovery system. Just because Ringier operated a printing plant and Accu-Rite was a machine shop, it does not necessarily follow that they could not engage in such a “common enterprise,” as appellant argues. As in Wright, supra at 634, “defendant owner not only acted as its own general contractor but was also actively involved in the enterprise in which plaintiff was injured. Here, the owner was more than a mere developer who hires others to construct improvements upon his land. The undisputed facts show that defendant acted as supervisor and a supplier of labor for the project. Therefore, summary judgment was properly granted to [Ringier] on the ground [it] was [Yoho’s] statutory employer.” Accord Falagan v. Ga. Power Co., 205 Ga. App. 531 (422 SE2d 563) (1992); Travelers Ins. Co. v. McNabb, 201 Ga. App. 297 (3) (410 SE2d 788) (1991) (cert. den. 201 Ga. App. 904 (1992)); Fennell v. Max Rittenbaum, 199 Ga. App. 619 (2) (405 SE2d 546) (1991) (cert. den. 199 Ga. App. 906 (1991)); Winn-Dixie Atlanta v. Couch, 193 Ga. App. 352 (387 SE2d 590) (1989) (cert. den. 193 Ga. App. 911 (1989)); Whitehead v. CHP, Ltd., 192 Ga. App. 417 (385 SE2d 124) (1989) (cert. den. 192 Ga. App. 903 (1989)).

Decided January 22, 1993

Reconsideration denied February 4, 1993

Davis, Gregory & Christy, Hardy Gregory, Jr., Joseph R. Neal, Michael W. Skeen, for appellant.

Fulcher, Hagler, Reed, Hanks & Harper, J. Arthur Davison, Hull, Towill, Norman & Barrett, Patrick J. Rice, for appellee.

2. Relying upon Ga. Electric Co. v. Rycroft, 259 Ga. 155 (378 SE2d 111) (1989), the appellant also contends that the contract between Ringier and Accu-Rite was voidable as fraudulently induced because it was entered with the understanding that Ringier would purge its solvent recovery, thus barring any workers’ compensation claim. In Rycroft, the Supreme Court found that an employee’s falsification of his employment application regarding a prior back injury rendered his employment contract voidable, and the employee could not recover workers’ compensation benefits for that reason. Rycroft has no bearing on the instant case.

The appellant has shown no evidence that Ringier knew or had reason to know that the system contained flammable vapors at the time of the injury. Indeed, Pinson and Hilliard, the two Ringier employees responsible for purging the system, were present at the time of the explosion and were also injured. The evidence may suggest negligence but in no way supports the contention of fraud.

Judgment affirmed. McMurray, P. J., and Cooper, J., concur.


author: Beasley, Judge.

text:
    A92A1757.
    GREAT AMERICAN BUILDERS, INC. v. HOWARD et al.
    (427 SE2d 588)
   Beasley, Judge.

Al and Pamela Howard, Kenneth and Linda Samer, Catherine Asinc, Elizabeth Coffe, Richard and Virginia Estridge, and David Penn sued Great American Builders, Inc., seeking damages for breach of contract, fraud and deceit, and violation of the Fair Business Practices Act (FBPA). OCGA § 10-1-390 et seq. We granted Great American’s application for interlocutory appeal of the trial court’s denial of its motion for summary judgment. For reasons which follow, we reverse.

Plaintiffs bought homes and “lakefront” lots in a residential subdivision in Richmond Hill, Georgia. As a licensed real estate broker, Great American, through its sales agent Carol Ann Coleman and others, sold the lots to plaintiffs. Great American was also the builder of the homes. On each lot, it agreed to construct a particular model home selected by the purchasers from options supplied by Great American.

Under special stipulations to their contracts, closed in 1986, Coffe, Asinc, the Samers, and Dale Anderson (predecessor to Penn) selected an option to purchase a “lakefront” lot for $5,000. The Estridges did the same for $6,000. Neither the sales contracts nor the stipulations defined the term “lakefront.” The Howards maintain that they also selected an option to purchase a lakefront lot for $5,000, but they have not produced any written, contractual stipulation so providing. Penn purchased Dale Anderson’s lot and home in 1989.

At the closings, all purchasers received settlement statements, a survey of the lot and home purchased, a warranty deed, and assorted closing documents. Neither the surveys nor the warranty deeds made reference to the lake or to plaintiffs’ rights concerning their use of it. The surveys showed that a strip of land between the lots and the area of the lake belonged to either Charles Stafford or the Richmond Management Company (the corporation through which he does business), from whom Great American bought the property which it sold to plaintiffs. Survey markers on the property likewise showed that there was a strip of land approximately 18' to 25' wide between the boundaries of their lots and the lake.

Those plaintiffs who had direct dealings with Great American testified that prior to executing the sales contracts, they inquired as to the meaning of the phrase “lakefront” lot and were told by Great American that their lots adjoined and fronted on a lake within the subdivision, and that even though the lake was not owned by Great American, it had a permanent easement and license agreement with the lake owner and plaintiffs would have permanent and uninterrupted use of the lake for all recreational purposes and could even build docks into the lake from their lots. Some plaintiffs testified that Great American told them they would receive letters of easement.

Each of the sales contracts contained an “ENTIRE AGREEMENT” clause stating, “This contract constitutes the entire agreement between the parties, and shall be binding upon and inure to the benefit of heirs, executors, administrators and assigns of the respective parties hereto. ALL additions or modifications to this contract shall be only in writing and signed by ALL parties and shall become an addendum to this contract. There shall be no verbal agreements of any kind between parties.” Each of the contracts also contained an “ADVICE AND REPRESENTATION WAIVER” under which the purchasers acknowledged that they had not relied upon the advice or representations by the broker or its agents as to certain matters not relevant here.

At the closing of their contract in August 1986, the Samers insisted that they receive some documentation as to their right to access and use the lake. A document was executed by the Samers and Stafford in October 1986 under which Stafford, on behalf of Richmond Management Company, gave them a license to cross the strip of land lying between their lot and Stafford’s lake, as well as a license to utilize the lake for non-commercial purposes, subject to the condition that the licensor had the right to revoke or modify this license at will. At various times in 1987, identical licensing agreements were executed between Stafford on behalf of Richmond Management and the Howards, Estridges, Coffes, and Dale Anderson.

On February 24, 1989, Stafford wrote a letter to various plaintiffs and Great American, stating that he would like to provide the property owners with the opportunity to purchase the land between their property line and 50' into the lake at a proposed sales price of $3,000 per parcel, with the offer being valid for only 15 days and conditioned upon acceptance by all property owners.

On February 28, Great American responded with a letter stating that “[w]hen we purchased the lake front lots you told us to tell our purchaser that they had full use of the lake and could even build a dock but that you wanted to retain ownership because you were unsure of your plans for the land on the northern and eastern bank. We have since sold most of the lots based on your statement and feel that we were right in doing so. In view of this we are not interested in your offer of February 24.”

On March 6, plaintiffs sent a letter to Great American stating that they had been assured by Coleman that the additional monies paid by them for lakefront lots would insure them of the right to access and use the lake, and if their license was revoked they intended to recover such monies from Great American.

On March 13, Great American responded with a letter expressing an interest in seeing documentation of their right to access and use the lake since Stafford and Richmond Management had only given defendant a verbal commitment. The letter ended with the statement to “[p]lease be assured that we will do all we can to insure you a lake front lot and will be willing to join with you in any action you deem necessary.”

On March 30, plaintiffs responded with a letter stating that Great American had extracted $5,000 or $6,000 from each purchaser based upon only a “verbal commitment” from Stafford, and since Great American had stated that it would do all it could to insure them a lakefront lot, it should accept and pay Stafford’s offer or reimburse the property owners for their loss.

Neither Great American nor the plaintiffs elected to accept the offer, and on April 3, Stafford wrote a letter to various plaintiffs terminating any license or permission to use any portion of the land between their lots and the lake and stating that any portions of the land not sold would be posted, and fences and a vegetation screen would be planted. Plaintiffs’ subsequent letters to Great American were unanswered.

In 1990, plaintiffs purchased from Stafford title to respective lots extensions with easement rights, with each plaintiff paying $3,500 except Estridge, who paid $1,750. Thereafter, plaintiffs sued Great American, which moved for summary judgment as to all claims and all plaintiffs, upon grounds of lack of contractual privity, plaintiffs’ failure to exercise proper diligence to ascertain the facts, Statute of Frauds, estoppel, the doctrine of merger, and the statute of limitation.

In denying Great American’s motion as to plaintiffs’ claims, the trial court ruled as follows: whether the verbal agreement alleged by plaintiffs can be enforced as an exception to the parol evidence rule and doctrine of merger in cases involving a separate and distinct collateral agreement is a jury question; in any event, parol evidence is admissible to show the true consideration for a deed; although there was no direct contractual relationship between Great American and Penn, he succeeds to Anderson’s rights; whether the Howards contracted with Great American for a lakefront lot is a jury question; whether plaintiffs were justified in reliance on misrepresentations allegedly made by Great American is a jury question; and whether plaintiffs’ FBPA claim is barred by the applicable statute of limitation is also a jury question.

1. The court erred in denying Great American’s motion for summary judgment as to fraud, in that such claim is barred by the “entire agreement” clause.

Notwithstanding variations in the language employed in a “merger” or “entire agreement” clause, it has been generally held that where a contract contains such a clause, and the plaintiff claiming fraud in the inducement elects to affirm the contract and sue for damages rather than rescind, the plaintiff is precluded from making any assertion that he relied upon verbal misrepresentations, unless he can show that as a result of such misrepresentations he did not acquire knowledge of the contents of the contract. Roller-Ice v. Skating. Clubs of Ga., 192 Ga. App. 140, 141 (384 SE2d 235) (1989); Jain v. Carload Delivery Svc., 189 Ga. App. 95, 96 (375 SE2d 99) (1988); Del Mazo v. Sanchez, 186 Ga. App. 120, 124 (366 SE2d 333) (1988). Plaintiffs do not allege that there were such misrepresentations here. Those alleged do not support a claim of fraud. Compare Brakebill v. Hicks, 259 Ga. 849 (388 SE2d 695) (1990) and Hardage v. Lewis, 199 Ga. App. 632 (405 SE2d 732) (1991), with Insilco Corp. v. First Nat. Bank of Dalton, 156 Ga. App. 382, 384 (2) (274 SE2d 767) (1980) and Blanchard v. West, 115 Ga. App. 814, 815 (2) (156 SE2d 164) (1967).

2. Plaintiffs’ contract claim is also barred by the “entire agreement” clause.

The claim is predicated on allegations that Great American orally assured plaintiffs that they had or would be provided with permanent easements to access and use the lake. The “entire agreement” clause states that “[t]here shall be no verbal agreements of any kind between the parties.” The plain language of this provision bars the verbal agreement sought to be enforced. See Curtis v. Pierce, 157 Ga. 717 (122 SE 208) (1924); compare Langenback v. Mays, 205 Ga. 706 (54 SE2d 401, 11 ALR2d 1221) (1949); see generally 11 EGL, Evidence (Civil), § 71 (1992 Rev.). See also Worthey v. Holmes, 249 Ga. 104, 105 (1) (287 SE2d 9) (1982); Sullivan v. Cheshire, 190 Ga. App. 763, 764 (1) (380 SE2d 294) (1989) (as to whether provisions in real estate sales contracts and building construction agreements merge into warranty and security deeds under the doctrine of merger).

Apart from an “entire agreement” or “merger” clause is the rule that “[p]arol contemporaneous evidence is generally inadmissible to contradict or vary the terms of a valid written instrument.” (Emphasis supplied.) OCGA § 24-6-1. An exception is a separate and distinct, collateral oral agreement that is consistent with and forms part of the consideration or inducement for a written agreement. Diamondhead Corp. v. Robinson, 144 Ga. App. 60, 61 (2) (240 SE2d 572) (1977). However, the provision in the parties’ contracts that there shall be no verbal agreements of any kind between the parties is absolute. As such, it bars the enforcement of a prior verbal agreement that, in fulfillment of its written contractual obligation to convey “lakefront” lots to the plaintiffs, Great American would provide plaintiffs with a permanent easement ensuring their littoral rights. See Curtis v. Pierce, supra.

3. Plaintiffs’ FBPA claim is not barred by the “entire agreement” clause, the parol evidence rule, or the doctrine of merger.

The question presented concerns the FBPA’s statute of limitation, which provides that “[n]o action shall be brought . . . [m]ore than two years after the person bringing the action knew or should have known of the occurrence of the alleged violation. ...” OCGA § 10-1-401 (a) (1). The plaintiffs or their privies knew or should have known any FBPA violation by at least 1987, by which time documentation that Great American had not been granted a permanent easement was provided to all concerned. Nor had they been granted such easements. Plaintiffs filed the present complaint in 1990, too late under the two-year statute of limitation.

Decided February 4, 1993.

Weiner, Shearouse, Weitz, Greenberg & Shawe, N. Harvey Weitz, Jeffrey W. Rubnitz, for appellant.

Michael H. Graham, for appellees.

Judgment reversed. Birdsong, P. J., and Andrews, J., concur.


author: Carley, Presiding Judge.

text:
    A92A1815.
    DICKERSON v. THE STATE.
    (427 SE2d 591)
   Carley, Presiding Judge.

Appellant was tried before a jury on a multi-count indictment which alleged his commission of numerous offenses against several members of a family. The jury found him guilty of only one count of aggravated assault against one of the family members. He appeals from the judgment of conviction and sentence entered by the trial court on the jury’s guilty verdict.

1. Appellant had requested a charge on simple assault as a lesser included offense of aggravated assault. The trial court’s failure to give this requested charge is enumerated as error.

Simple assault “is necessarily a lesser included offense of the greater crime of aggravated assault and is an essential part thereof.” Smith v. State, 140 Ga. App. 395, 396 (1) (231 SE2d 143) (1976). Thus, any defendant who has committed the greater offense of aggravated assault has necessarily committed the lesser offense of simple assault. See generally Morrison v. State, 147 Ga. App. 410, 412 (4) (249 SE2d 131) (1978); Hise v. State, 127 Ga. App. 511 (194 SE2d 274) (1972). “But this does not mean that the [trial] court should authorize the jury to enter a verdict for the lesser crime in every case.” Smith v. State, supra at 396 (1). Where, as here, the undisputed evidence shows that the assault was committed with a deadly weapon, it is not error to refuse to give a charge on simple assault as a lesser included offense. Clark v. State, 191 Ga. App. 386, 387 (3) (381 SE2d 763) (1989). “Under the facts here, [appellant] either committed an aggravated assault or none at all. There was no evidence of an attempt to commit an injury not involving [a] gun.” Harper v. State, 127 Ga. App. 359, 360-361 (3) (193 SE2d 259) (1972). It follows that the trial court did not err in refusing to give appellant’s requested charge.

2. Over objection, the investigating officer was allowed to testify that, in her opinion, the family members did not “have the appearanee of people [who] were trying to make up a story. . . .” This evidentiary ruling is enumerated as error.

Decided February 4, 1993.

Word & Flinn, Gerald P. Word, for appellant.

Peter J. Skandalakis, District Attorney, Jeffery W. Hunt, Assistant District Attorney, for appellee.

The trial court erred in allowing the testimony. “An expert witness may not testify as to his opinion of the victim’s truthfulness. [Cits.] . . . [A]n expert witness may not put his . . . stamp of believability on the victim’s story. [Cit.]” State v. Oliver, 188 Ga. App. 47, 50-51 (2) (372 SE2d 256) (1988).

The question yet remains, however, as to whether the error was harmful. The jury acquitted appellant of all but one of the crimes which he allegedly had committed against the family members. It is thus apparent that the jury could not have been influenced by the investigating officer’s impermissible bolstering of the general credibility of the family members, but made an independent determination as to the specific credibility of each family member and the relative merits of each count of the indictment. As to that count upon which a guilty verdict was returned, appellant admitted that he had confronted the victim and had drawn a gun, urging only that he had never pointed the gun directly at the victim. Under these circumstances, it is highly probable that the erroneously admitted opinion of the investigating officer did not contribute to the verdict. See Remine v. State, 203 Ga. App. 30 (2) (416 SE2d 326) (1992).

Judgment affirmed. Pope, C. J., and Johnson, J., concur.


text:
    A92A2077.
    In the Interest of B. P. et al., children.
    (427 SE2d 593)
   Pope, Chief Judge.

Appellant brings this appeal from an order of the Juvenile Court of Cobb County terminating her parental rights with respect to her two sons, B. P. and R. P. The juvenile court also terminated the parental rights of the children’s fathers, but no appeal has been taken by either father from that portion of the juvenile court’s order. In her sole enumeration of error on appeal, the mother contends the juvenile court’s order was not authorized by the evidence presented during the hearing on the termination petition.

B. P. and R. P. were born March 8, 1989 and March 5, 1988 and were two and three years of age, respectively, at the time of the termination proceedings. The record shows the Department of Family & Children Services (DFACS) first became involved with the family in September 1989 and that the children were removed from the home in February 1990. The record further shows that while the children were in appellant’s care her boyfriend, who lived in the home with appellant and the children, severely physically abused the children and appellant, who testified she was unaware of the abuse, and did nothing to protect her children from the abuse. Testimony was also presented that appellant failed to get prompt medical care for the children’s injuries although she should have been aware they were in need of such care, and that she continued to live with the boyfriend after the children were removed from her custody because of the abuse. In March 1990, the juvenile court entered an order, which has never been appealed, finding the children to be deprived. The children were placed in the care of foster parents, and according to testimony presented at the hearing, they have made remarkable physical and emotional improvement during that time.

In December 1990, appellant entered a plea of guilty but mentally retarded to charges of child cruelty and was sentenced to prison. Appellant was released from prison approximately one month prior to the termination hearing. Evidence was presented that the children have no bond with appellant, that during two visits with their mother while she was incarcerated the children treated her as a stranger, and that R. P. had “acted out” for two days after being told he was going to visit his mother. Testimony was also presented that both children had developed a parent-child relationship with their foster parents, who desired to adopt the children.

Although acknowledging her shortcomings as a parent, appellant testified she loved her children. Appellant further testified she had taken some courses in prison to help her learn to care for her children, that upon release from prison she found a job in a sock factory, and that her goal was to become self-sufficient (i.e., get her own apartment and car) and eventually regain custody of her children. She admits the children have not bonded with her, but asserts she has not been provided sufficient opportunity to visit with her children although she requested visitation on several occasions while she was incarcerated.

“The statutory criteria for the termination of parental rights is the two-step procedure of OCGA § 15-11-81 (a). First the court determines whether there is clear and convincing evidence of parental misconduct or inability. Second the court considers whether termination is in the best interest of the child. [Cit.] Parental misconduct is determined by finding: 1) the child is deprived; 2) lack of proper parental care or control is the cause of the deprivation; 3) such deprivation is likely to continue or will not be remedied; 4) continued deprivation is likely to cause serious physical, mental, emotional or moral harm to the child. OCGA § 15-11-81 (b) (4) (A). Among the factors which may be considered with regard to a child lacking proper parental care or control are: medically verifiable deficiency of the parent’s mental or emotional health of such duration or nature as to render the parent unable to provide adequately for the child’s needs; conviction of a felony and imprisonment which has a demonstrable negative effect on the quality of the parent-child relation; [and] physical, mental or emotional neglect of the child. OCGA § 15-11-81 (b) (4) (B). . . .

“The standard of appellate review where a parent’s rights to his child have been severed is ‘ “whether after reviewing the evidence in the light most favorable to the appellee, any rational trier of fact could have found by clear and convincing evidence that the natural parent’s rights to custody have been lost.” ’ Blackburn v. Blackburn, 249 Ga. 689, 694 (292 SE2d 821) (1982).” In the Interest of B. J. H., 194 Ga. App. 282 (390 SE2d 427) (1990). “The factfinding and weighing of evidence is to be done in the trial court under the clear and convincing evidence test. The reviewing court is to defer to the lower court in the area of factfinding and should affirm unless the appellate standard of review ... is not met.” In re B. D. C., 256 Ga. 511, 513 (350 SE2d 444) (1986).

As to the first criterion, no appeal was taken from the order of the juvenile court entered in March 1990 finding the children to be deprived and thus appellant is bound by that determination. See In the Interest of J. L. Y., 184 Ga. App. 254 (1) (361 SE2d 246) (1987). Likewise, given the physical and emotional state the children were in when they were removed from appellant’s care, it is beyond question that continued deprivation is likely to cause serious harm to the children.

Turning to the question of whether appellant’s lack of care or control was the cause of the deprivation in this case, appellant argues repeatedly on appeal that there is no evidence she ever physically abused the children or ever witnessed the abuse inflicted by her boyfriend. However, the record shows without dispute that in addition to appellant’s failure to recognize and protect her children from her violent and abusive boyfriend and to obtain medical care for the injuries he inflicted, appellant’s children were generally neglected, uncared for and unsupervised and as a result of lack of care and proper hygiene, they suffered from a plethora of physical ailments endangering their welfare. The record further shows the situation changed little after DFACS intervened, and that appellant did not follow through with a plan entered into with DFACS, an example of which is demonstrated by appellant’s failure to obtain shots for the children although at that time she was living a short distance from the medical clinic where the shots were available. “ ‘(P)arental unfitness supporting a termination of parental rights can be caused “ ‘ “either by intentional or unintentional misconduct resulting in abuse or neglect of the child or by what is tantamount to physical or mental incapacity to care for the child.” ’ ” (Cit.)’ . . . [Cit.]” In the Interest of B. R. S., 198 Ga. App. 561, 562 (1) (402 SE2d 281) (1991).

The final point to be considered in the first step of the two-step process under OCGA § 15-11-81 is whether the deprivation is likely to continue or will not likely be remedied. As to this issue, the juvenile court found appellant to be “incapable of independent living now or in the immediate future. Her inability to hold more that a subsistence job, her intellectual deficits and her past history convince the Court that she will continue to need and seek the financial and emotional support of others, particularly men. The men she relates to are violent and antisocial in their behavior, and would be as harmful to her children as she is. While recognizing that she has taken some positive steps to improve her ability to parent these children, her inability to parent the children is likely to continue and will not be remedied. Her children are of a tender age; they are in need of permanent parents on whom they can rely to safeguard them and provide them with at least the basic necessities of life. [Appellant] cannot do this.” The juvenile court then reiterated: “The mother’s condition of mental retardation, emotional problems, and dearth of knowledge about parenting skills, and pattern of behavior in choosing dangerous companions insure that she will not be a fit custodian for her [children] in the foreseeable future.” “In full compliance with applicable statutory requirements of OCGA § 15-11-81 (b) (4) (A) (iii), the juvenile court found that the deprivation of the child [ren] resulting from appellant’s parental unfitness is likely to continue or will not likely be remedied, and there is sufficient clear and convincing evidence to support the findings in this regard. [Cits.]” In the Interest of B. R. S., 198 Ga. App. at 562. See also In re G. M. N. & D. M. N., 183 Ga. App. 458, 461 (359 SE2d 217) (1987).

Turning to the second step, whether the termination is in the children’s best interest, one factor to be considered, as the juvenile court noted, is the children’s need for a stable and secure home. Moreover, “those same factors which show the existence of parental misconduct or inability can also support a finding that the termination of parental rights of the defaulting parent would be in the child’s best interest. Thus, a finding as to whether the termination of parental rights is in the best interest of the child represents, in essence, a finding as to whether the specifics of the parental default that have otherwise been found to exist are of such magnitude as to warrant the conclusion that the child himself would be better served by the grant of the petition to terminate. [Cits.] In this regard, our review of the entire record shows that there was likewise sufficient clear and convincing evidence to support the juvenile court’s finding that the termination of [appellant’s] parental rights . . . would be in [the children’s] best interest.” In the Interest of G. K. J., 187 Ga. App. 443, 444 (2) (370 SE2d 490) (1988). See also In the Interest of S. K. L., 199 Ga. App. 731 (1) (405 SE2d 903) (1991). Based on the foregoing, the order of the juvenile court terminating the parental rights of appellant is affirmed.

Decided February 4, 1993.

Robert P. Crossett, for appellant.

Michael J. Bowers, Attorney General, Margot M. Cairnes, Staff Attorney, Douglas D. Middleton, James K. Knight, Jr., Edwards, Friedewald & Grayson, Robert J. Grayson, for appellee.

Judgment affirmed. Carley, P. J., and Johnson, J., concur.


text:
    A92A2093.
    LEWIS v. JARVIS.
    (427 SE2d 596)
   Beasley, Judge.

Lewis appeals from an order dismissing his personal injury action against Jarvis for lack of proper venue and expiration of the statute of limitation. The trial court having lacked jurisdiction to enter the order, reversal is required.

Lewis filed his action in Fulton County on April 15, 1991, to recover for auto collision injuries sustained on April 17, 1989. The complaint alleged that Jarvis resided and could be served at a specified address in Fulton County. Service of process was effected by the Fulton County Marshal at that address on April 23, 1991.

Jarvis answered on May 23, asserting failure to state a claim upon which relief could be granted, and raising defenses of lack of personal jurisdiction and improper venue pursuant to OCGA § 9-11-12 (b). On July 18, she filed a motion to dismiss with accompanying affidavit and documentation showing that she continuously resided in Clayton County since 1987. She also asserted, for the first time, a statute of limitation defense. In his reply, Lewis requested that the motion be treated as a motion to transfer venue. With regard to the statute of limitation issue, his attorney averred in a supporting affidavit that he had (erroneously) been informed by the Fulton County Marshal’s office that defendant’s address as shown on the complaint was located in Fulton County.

On October 31, the trial court ordered that the action be transferred to Clayton County where a ruling would be made on the statute of limitation defense. On November 7, Jarvis moved for reconsideration, again seeking dismissal of the action. On December 26, the clerk of the Fulton State Court transferred the case to the Clayton State Court, pursuant to the order of October 31.

The State Court of Fulton County entered the order here under review on February 5, 1992, approximately five weeks after the case had been transferred. The court ruled that the action had been improperly filed in Fulton County and that venue was proper in Clayton County. It went further and dismissed the action for lack of proper venue and expiration of the statute of limitation.

It is undisputed and confirmed by the record that defendant Jarvis, during the relevant periods, was a resident of Clayton County. All civil cases of this nature are to be tried in the county where the defendant resides. Ga. Const. 1983, Art. VI, Sec. II, Par. VI; Shaheen v. Dunaway Drug Stores, 246 Ga. 790 (273 SE2d 158) (1980). Jarvis preserved the issues of lack of service and improper venue by pleading them in accordance with OCGA § 9-11-12, and by reasserting them in her motion to dismiss. Shaheen, supra. Accordingly, Fulton County lacked in personam jurisdiction over Jarvis and venue was proper in Clayton County. Id.; Williams v. Fuller, 244 Ga. 846 (262 SE2d 135) (1979).

Pursuant to the authority of Ga. Const. 1983, Art. VI, Sec. I, Par. VIII; OCGA § 9-11-12; Uniform Transfer Rules T-l through T-4; and Uniform Superior Court Rule 19.1 (applicable to the State Courts under Uniform State Court Rule (A)), Jarvis’ motion to dismiss was to be treated as a motion to transfer, and the case was properly transferred to Clayton County pursuant to the October 31 order of the Fulton court.

Since the trial court lacked jurisdiction over defendant, its order of February 5 dismissing the action was void and nugatory. OCGA § 9-12-16; Williams, supra at (3). Upon receipt of the case by the Clayton clerk, the case should have continued “as though initially commenced there. . . .” Uniform Transfer Rule T-13. Accordingly, the action remains pending in Clayton County.

“The statute of limitation defense is a matter to be considered by a court having proper jurisdiction of the merits. [Cit.]” Hight v. Blankenship, 199 Ga. App. 744, 745 (406 SE2d 241) (1991). The Clayton court, not the Fulton court, is to make the determination of due diligence; its discretion, not the Fulton court’s, is to be exercised.

Judgment reversed. Birdsong, P. J., and Andrews, J., concur.

Decided February 4, 1993.

Jim White, P. C., Fred R. White, for appellant.

Clifton Lee & Associates, Clifton Lee, Jean F. Johnson, for appellee.


text:
    A92A2220.
    In the Interest of S. M. S. et al., children.
    (427 SE2d 598)
   Pope, Chief Judge.

Appellant appeals an order of the Juvenile Court of Cobb County terminating her parental rights with respect to her two youngest children, S. M. S. and D. E. S. The father’s parental rights to S. M. S. and D. E. S. were also terminated, but no appeal has been filed from that portion of the juvenile court’s order. In her sole enumeration of error on appeal, appellant challenges the sufficiency of the evidence to support the order.

The record shows S. M. S. and D. E. S., who were three and five years old, respectively, at the time of the termination hearing, are the youngest of appellant’s six children. Appellant had her first child when she was twelve years old and that child as well as the next oldest child was adopted in Ohio, where appellant lived before moving to Georgia. The present proceedings concerned appellant’s four remaining children. Appellant consented to the termination of her parental rights with respect to the two middle children, who were twelve and seven years of age at the time of the hearing, and who had been in foster care since being removed from the home in 1985. As to S. M. S. and D. E. S., appellant admitted that the previous home environment had been unsuitable for her children, but asked for more time to remedy that situation. The record shows the children had been raised in an environment of unrelenting domestic violence and the children’s father (appellant’s common-law husband) had on numerous occasions inflicted severe, and on at least one occasion, almost fatal, physical abuse upon appellant. Appellant had also inflicted physical abuse on the father, having struck him with such objects as a broom, skillet and radio. Evidence was presented that both parents used drugs and alcohol in the past, and the father’s, if not the mother’s, use of such substances appeared to be a contributing, if not precipitating, factor to the parents’ physical confrontations. At the time of the hearing the mother denied the current use of alcohol or drugs, but the evidence showed the father continued to use alcohol although he maintained his consumption had decreased.

The father was ordered by the court to leave the home in 1985 when the two middle children were removed, but he returned and he and appellant continued to live together, resulting in the birth of the two children who are the subject of this appeal. The father continued to drink, smoke marijuana and, periodically, to beat the appellant. In October 1990 the father hit appellant while she was holding their youngest child, S. M. S., and broke appellant’s jaw in seven places. Appellant admitted this violence may have placed S. M. S. in danger and admitted the children were frightened by the violence. Both S. M. S. and D. E. S. were removed from the home shortly after this incident. Evidence was also presented that D. E. S. has seizures, urinary incontinence and hearing difficulties, and that appellant failed to obtain adequate medical treatment for his physical problems.

In January 1991 the court entered a plan designed to reunite appellant with S. M. S. and D. E. S. Appellant admitted at the termination hearing, held in February 1992, that she had not complied with this plan. Specifically, the record shows appellant failed to obtain adequate housing for the children, although she was employed and financially capable of doing so. Appellant also failed to stabilize the home environment and likewise failed to obtain counseling designed to address her past history as a battered woman. According to appellant, the week before the hearing she did make some efforts to comply with the plan and at the time of the hearing she had made arrangements to move from the Thunderbird Motel, where she had been staying, to an apartment. She also attended one counseling session during the week before the hearing. Appellant further testified she had finally realized that she and the children’s father could not reconcile and she was now ready to take the steps necessary to finalize divorce proceedings which she had instituted in January of the previous year. Although appellant testified she and the father had separated, she admitted she allowed him to stay with her at times, and that he had spent the night in her motel room on Sunday, February 2,1992, a few days prior to the termination hearing. The father testified he was prepared to “step aside” and planned to move back to Ohio so appellant could regain custody of S. M. S. and D.. E. S. Appellant asked for six more months and another chance to be a proper mother to her two youngest children.

“ ‘The appropriate standard of appellate review in a case of this sort is whether after reviewing the evidence in the light most favorable to the appellee, any rational trier of fact could have found by clear and convincing evidence that the natural parent’s rights to custody were lost. The factfinding and weighing of evidence is to be done in the trial court under the clear and convincing evidence test. The reviewing court is to defer to the lower court in the area of factfinding and should affirm unless the appellate standard of review, here the rational factfinder test, is not met. When we apply that test here we note the . . . evidence presented to the trial court and con-elude that a rational factfinder could have found by clear and convincing evidence parental misconduct or inability as provided by OCGA § 15-11-81 (b). (Indention omitted.) In re B. D. C., 256 Ga. 511, 512-13 (350 SE2d 444) (1986). See also In the Interest of J. M. K., 189 Ga. App. 140 (375 SE2d 131) (1988); In the Interest of J. A. B., 189 Ga. App. 79 (1) (374 SE2d 839) (1988); In the Interest of S. G., 182 Ga. App. 95 (354 SE2d 640) (1987). In the Interest of J. L. G., 191 Ga. App. 904, 905 (383 SE2d 376) (1989). In a case such as this, a plea of additional time to improve is without force to overcome the proof of unrelieved detriment already suffered by the child where there is no indication but the promise to suggest hope of improvement. In re G. M. N., 183 Ga. App. 458, 461 (359 SE2d 217) (1987). In the Interest of S. L., 189 Ga. App. 361, 362 (375 SE2d 484) (1988). See also In re J. L. W., 170 Ga. App. 886 (318 SE2d 751) (1984).’ (Punctuation omitted.) In the Interest of C. M., 194 Ga. App. 503, 504 (1) (391 SE2d 26) (1990).” In the Interest of B. L., 196 Ga. App. 807, 809-810 (3) (397 SE2d 156) (1990). “The juvenile court did not lack clear and convincing evidence to support the termination of appellant’s parental rights.” In the Interest of K. P. E., 196 Ga. App. 759, 760 (397 SE2d 39) (1990).

Decided February 4, 1993.

Randall Harris, for appellant.

Michael J. Bowers, Attorney General, William C. Joy, Senior Assistant Attorney General, Margot M. Cairnes, Staff Attorney, Edwards, Friedewald & Grayson, Robert J. Grayson, for appellee.

Judgment affirmed. Carley, P. J., and Johnson, J., concur.