author: Beasley, Judge.

text:
    A97A1984.
    OAKVALE ROAD ASSOCIATES, LTD. et al. v. MORTGAGE RECOVERY FUND-ATLANTA POOLS, L.P.
    (499 SE2d 404)
   Beasley, Judge.

Mortgage Recovery Fund-Atlanta Pools, L.P. sued Oakvale Road Associates, Ltd. to recover a deficiency on a promissory note. Oakvale asserted that the suit should be barred because Mortgage Recovery previously had foreclosed on property which secured that note and a prior one without obtaining judicial confirmation of the sale. Both parties filed motions for summary judgment along with a Joint Statement of Material Facts. The court granted Mortgage Recovery’s motion for summary judgment and denied Oakvale’s.

The issue is whether the debts are inextricably intertwined so that a suit on the second debt constitutes an action to obtain a deficiency judgment requiring judicial confirmation of the foreclosure sale associated with the first debt.

In July 1988, Oakvale executed and delivered to Southern Federal Savings & Loan Association of Georgia a promissory note for $480,000. In exchange, Oakvale conveyed title to three contiguous parcels of land as security, the Oakvale Heights Subdivision, the Broad Oak Court Subdivision, and a parcel referred to as “Undeveloped Land.” The security deed contains an open-end or dragnet clause that provides that the property conveyed secures any subsequent debts between the parties. Oakvale executed this first note to develop infrastructure for all three parcels.

Eleven months later Oakvale borrowed another $195,000 from Southern Federal for the development of lots in Broad Oak Court. In that transaction, Southern Federal released Broad Oak Court as security for the first note by quitclaim deed. Oakvale executed a second promissory note and conveyed a first priority interest in Broad Oak Court and a second priority interest in Undeveloped Land. Southern Federal later transferred both notes to Mortgage Recovery.

Oakvale defaulted on both notes, and Mortgage Recovery declared the full amount of the indebtedness immediately due. Under separate cover, Mortgage Recovery sent notices of acceleration, foreclosure and its intent to enforce the provisions of each note for statutory attorney fees. Oakvale paid nothing.

Mortgage Recovery foreclosed on the first security deed by selling the secured property under power of sale. Mortgage Recovery bid for. and purchased the two parcels, Oakvale Heights and the Undeveloped Land, on the courthouse steps for $364,016.89, the amount due on the first note. The record contains no evidence of the true market value of the two parcels. It then sold Broad Oak Court on the courthouse steps for what the parties agree was “its fair and true market value” of $136,500, leaving a deficiency of $72,691.61 on the second note. The superior court confirmed the second sale in accordance with OCGA § 44-14-161.

The confirmation statute, OCGA § 44-14-161 (a), provides: “When any real estate is sold on foreclosure, without legal process, and under powers contained in security deeds, . . . and at the sale the real estate does not bring the amount of the debt secured by the deed ... , no action may be taken to obtain a deficiency judgment unless the person instituting the foreclosure proceedings” obtains a judicial confirmation.

Georgia courts have applied this statute to foreclosure proceedings on separate debts which are “inextricably intertwined” to prevent creditors from circumventing the statute by making successive loans against the security of the same property. This prevents creditors from avoiding “the very purpose of the confirmation statute; that being to protect debtors from deficiency judgments when their property is sold at [a] foreclosure sale for less than its market value.” Debts that are “inextricably intertwined” or debts that are “merged” constitute a single debt for the purpose of determining whether the sale of the real estate “bring[s] the amount of the debt secured by the deed” under OCGA § 44-14-161 (a).

Tufts v. Levin analyzed the case law addressing whether debts are “inextricably intertwined” so as to fall within the parameters of the statute. Generally, debts that are incurred for the same purpose, secured by the same property, held by the same creditor and owed by the same debtor are inextricably intertwined. The two notes need not represent one debt if they are secured by the same deed on the same property.

On the other hand, debts that are not intertwined are not governed by the confirmation statute. For example, the statute has been found not to apply to: debts that are independent, separate, unsecured obligations where there is no dragnet clause; notes representing two separate debts initially executed to different creditors and secured by separate security deeds and no dragnet clause shown; or separate debts evidenced by separate notes secured by separate security deeds made at different times to different creditors and for different purposes where a dragnet clause was not applicable. Generally, debts not subject to the statute are based on notes made at different times, to different creditors, and for different collateral purposes.

Oakvale’s notes were executed almost a year apart and for different, although related, purposes. When the second note was executed the first transaction was modified simultaneously by the parties so that the Broad Oak parcel was released from the first security deed and made a subject of the second security deed. Notably, and despite Mortgage Recovery’s assertions to the contrary, by not also releasing and reassigning the Undeveloped Land which was part of the same security deed, the parties clearly intended that it would operate as security for both notes by virtue of the dragnet clause.

Mortgage Recovery’s repetitive assertion that the two deeds were secured by “substantially different property” ignores the facts, and case law involving separate debts secured by the same property applies. No case law supports Mortgage Recovery’s contention that the secured property associated with the two debts must be identical in order to be inextricably intertwined. In United States v. Yates, the first note was secured by a deed to secure debt that covered two tracts of land in Tift County. The second note was secured by the Tift County tracts and an additional 15-acre tract. The court held the notes were secured by the same property. The fact that, before foreclosure under the second note, a senior lienholder of the 15-acre tract had foreclosed on that property was not decisive.

Even though the first debt is secured by a senior interest in the Undeveloped Land and the second debt a junior interest in the same land, the two debts are not independent and separate obligations for the purposes of the confirmation statute. “It is the general rule that a sale under a regularly exercised power in a security deed or mortgage is equivalent to a foreclosure proceeding, and not only extinguishes the right of redemption, but divests all junior mortgages and other junior incumbrances on the property.”

But the open-end or dragnet clause in the first note effectively merges the two debts into one debt for foreclosure. Such a clause merges the debt secured by the second note into the debt secured by the first note to the extent that it satisfies the requirements of OCGA § 44-14-1 and the notes are secured by the same property. OCGA § 44-14-1 (b) limits the operation of dragnet clauses to debts “arising ex contractu . . . between the original parties to the security instrument.”

Southern Federal, Mortgage Recovery’s predecessor in interest, was the original party to both security instruments along with Oakvale. As stated above, Southern Federal and Oakvale secured both notes in part by the Undeveloped Land. No precedent establishes that the security for both notes be wholly identical property in order for the merger of debts to occur under such a provision. Nor has good reason been advanced to require it. To do so would disserve the purpose of the confirmation statute, which is to assure fairness to the debtor and avert windfall to the creditor.

Because the two debts merged for purposes of the confirmation statute, the first sale resulted in a deficiency in the amount remaining due on the second note. It is immaterial that if the debts were not merged, the second priority interest in the Undeveloped Land would be divested by the first sale.

Clements v. Fleet Finance is inapposite. There, the two debts did not merge because they involved different creditors, and OCGA § 44-14-1 limits the effect of dragnet or open-end clauses “to debts arising between the ‘original parties’ to the first security deed.” Salter v. Bank of Commerce is on its face inapplicable. There, the court only found that, by its very terms, the confirmation statute does not apply to prevent the creditor from foreclosing by power of sale a second piece of property used to secure one of a series of debts between the parties, such as here when Mortgage Recovery was not prevented from foreclosing the Broad Oak parcel. The statute only applies to prevent a subsequent suit for deficiency on the debt, such as the suit now before us. In Salter we did not address whether two merged debts would constitute one in terms of the confirmation statute.

Mortgage Recovery misreads Vaughn & Co. v. Saul to suggest that Salter provides that the confirmation statute allows sale under power and a suit for deficiency as long as the creditor is selling property different from that sold at an earlier foreclosure. Salter never reached the question of whether a deficiency could be sought. Salter only affirmed dismissal of an attempt to enjoin the second sale. Further, Vaughn & Co. and Baker v. NEI Corp. are not controlling. Neither addresses the effect of open-end or dragnet clauses on two notes secured, at least in part, by the same property. Indeed, Vaughn & Co. distinguished cases where one parcel of land was security for the note and subsequent debts.

Decided March 20, 1998

Almand & Wiggins, O. Hale Almand, Jr., Debra Csikos-Vandrasik, for appellants.

Bryant v. Branch is distinguishable. There, this Court held that the second note, in the amount of $50,000, was expressly excluded by agreement of the parties from the protection of the collateral. Thus, despite the open-end clause in the security deed, the parties had agreed the second note was not secured by the relevant property. Here the two notes were secured in part by the same property.

Other clauses further intertwine the two debts. The second note contains a cross-default clause that provides that a default on the first note constitutes a default on the second note. It also has an assignment of surplus funds clause requiring that any surplus funds existing from a foreclosure of the first note be “paid over to Grantee (Mortgage Recovery) to be applied against the indebtedness secured hereby.” Thus, under the surplus funds clause, if the fair market value in the first foreclosure was higher than the sale price, the debtor lost a reduction of the debt remaining on the second note.

Mortgage Recovery argues there was no need for confirmation because there were no surplus funds from the $480,000 loán foreclosure. This argument begs the question. Ensuring that the purpose of the confirmation requirement is upheld necessarily involves determining whether the property was sold at less than market value. When the sale price and the amount of the debt are the same, the question is whether there would have been surplus proceeds from the sale over the amount of the debt had the sale been for the true market value.

Since the debts represented by the two notes are inextricably intertwined so that the failure to obtain judicial confirmation of the first sale precluded a deficiency judgment after the second sale, the trial court erred in granting Mortgage Recovery’s motion for summary judgment and denying Oakvale’s motion.

Judgment reversed.

McMurray, P. J, and Smith, J., concur in the judgment only.

McCalla, Raymer, Padrick, Cobb & Nichols, John G. Aldridge, Jr., Daniel D. Phelan, for appellee.

        Ward v. Pembroke State Bank, 212 Ga. App. 322, 324 (441 SE2d 691) (1994). See, e.g., Tufts v. Levin, 213 Ga. App. 35 (2) (443 SE2d 681) (1994); C.K.C., Inc. v. Free, 196 Ga. App. 280, 283 (2) (395 SE2d 666) (1990); Murray v. Hasty, 132 Ga. App. 125, 127 (1) (207 SE2d 602) (1974).

        Ward, 212 Ga. App. at 324.

       (Emphasis omitted.) Id. at 323 (two debts effectively merged into one for the purposes of foreclosure); Tufts, 213 Ga. App. at 37 (debts inextricably intertwined “are not independent of each other, and a foreclosure of one affects the other”).

       Id. at 36-38 (2).

       See id., supra; Ward, supra; C.K.C., Inc. v. Free, supra; Murray, supra.

        Ward, 212 Ga. App. at 323.

        Murray v. Hasty, 132 Ga. App. at 126.

        Devin Lamplighter, Ltd. v. American Gen. Finance, 206 Ga. App. 747 (1) (426 SE2d 645) (1992).

        Clements v. Fleet Finance, 206 Ga. App. 736, 738 (426 SE2d 910) (1992).

        Tufts, 213 Ga. App. at 38.

       774 FSupp. 1368 (M.D. Ga. 1991).

       Id. at 1370.

       Id. at 1373.

       (Citations omitted.) Fed. Land Bank of Columbia v. Bank of Lenox, 192 Ga. 543, 546 (2) (16 SE2d 9) (1941).

        Ward, 212 Ga. App. at 323.

       See Clements, 206 Ga. App. at 739 (Carley, P. J., and Johnson, J., concurring specially); Salter v. Bank of Commerce, 189 Ga. 328 (6 SE2d 290) (1939) (dragnet clause does not merge debts secured by different property).

        Commercial Exchange Bank v. Johnson, 197 Ga. App. 529, 530 (398 SE2d 817) (1990); Redman Indus, v. Tower Properties, 517 FSupp. 144, 148-149 (N.D. Ga. 1981). This is done by examining whether the property foreclosed was sold for its true market value. OCGA § 44-14-161 (b); Malak v. McGinnis, 257 Ga. 622 (361 SE2d 798) (1987).

       206 Ga. App. at 739 (Carley, P. J., and Johnson, J., concurring specially in a three-judge panel decision).

       Id.

       189 Ga. at 328.

       Id. at 331-332.

       Id.

       143 Ga. App. 74, 76 (237 SE2d 622) (1977).

       144 Ga. App. 165 (241 SE2d 4) (1977).

       143 Ga. App. at 76.

       142 Ga. App. 189 (235 SE2d 688) (1977).

       Id.


source: Caselaw Access Project

author: Beasley, Judge. McMurray, Presiding Judge,

license: Public Domain

text:
    A97A2092.
    CUNNINGHAM v. THE STATE.
    (498 SE2d 590)
   Beasley, Judge.

Cunningham appeals his conviction of driving under the influence. OCGA § 40-6-391 (a) (1).

1. He enumerates as error the denial of his motion to suppress all evidence and statements seized as a result of an allegedly illegal stop of his vehicle. The trial court did not err as a matter of law in denying the motion, which was based on the asserted absence of a valid articulable suspicion for the officer to stop Cunningham’s car.

At the motion hearing, which bridged two days, the arresting officer testified that he was patrolling in a known high drug area about 5:15 a.m., a Sunday morning, when he noticed a vehicle unfamiliar to him being driven slowly by Cunningham, whom he did not know. These circumstances caused him concern, so he “ran the tag” by asking the dispatcher to check on it by number. He actually gave the number of GTL 689 to her twice, i.e., in two different ways. The dispatcher checked and related to the officer, without repeating the number, that the tag belonged on another vehicle. That being a violation of law, OCGA § 40-2-6, the officer conducted a traffic stop. The officer’s belief in the license plate number discrepancy was the sole reason for the stop.

According to the officer, the dispatcher checked on the wrong number and thus gave the officer erroneous information. After the officer arrested Cunningham for driving while intoxicated and took Cunningham to the police station, the officer discovered the error when checking “the paperwork on the tag.”

That is all the evidence on the point. Cunningham argued to the trial court that the stop was constitutionally infirm “because of the miscommunication or error.”

When the hearing reconvened, the trial court found as fact that the stop was not pretextual but was based on an error of fact, made either by the officer when he called the number in or by the dispatcher when she heard the number. The court further found that it was an “honest human mistake . . . [not] a contrived error” and not “done in bad faith.” The court reiterated: “I think it was just a good faith human error in listening to the numbers wrong or calling the numbers out wrong. You know, when you give numbers, sometimes — in fact, I find myself doing that sometimes, quite frankly. I will look at a phone number, for example, and call the number out wrong when I am just looking right at a phone number, you know. . . . Sometimes your brain is not connected to your mouth.” The court specifically made a point of rejecting any nefarious underhandedness, stating: “I don’t find that there has been any evidence presented that would make me believe that what occurred here was anything more than [human error].”

The court further found that “when the officer made the stop, he was making it in good faith, believing that he was stopping the defendant for having the wrong tag on the vehicle, and that that was a justifiable reason for making the traffic stop.” The court actually applied the higher probable cause standard, even though it recognized that validity depended only on an articulable suspicion.

The denial of the motion was based on those findings.

Although Cunningham pays lip service to the state constitution by referring to it in general in his enumeration, he does not present this as a separate and independent basis for his contention of illegality. Thus there is no need to address such a ground. Harrison v. State, 213 Ga. App. 174, 175 (444 SE2d 354) (1994).

On motions to suppress evidence, the trial court is the finder of fact, and we must abide by its findings if supported by any evidence. Morgan v. State, 195 Ga. App. 732, 735 (3) (394 SE2d 639) (1990). “This court is limited to resolving questions of law rather than fact. [Cits.]” Fine & Block v. Evans, 201 Ga. App. 294, 295 (1) (411 SE2d 73) (1991). “When reviewing a trial court’s decision on a motion to suppress, this court’s responsibility is to ensure that there was a substantial basis for the decision. [Cit.]” Morgan, supra, 195 Ga. App. at 735.

We do not fault the State for not proving that the radio equipment used by the officer in the communications was in good working order and for not proving that there was an adequate protocol established and followed with respect to assuring accuracy of information conveyed. This would introduce, without authority or rationale, a new burden into the determination of whether a Terry stop is based on articulable suspicion. To the contrary, McDaniel v. State, 227 Ga. App. 364, 366 (2) (489 SE2d 112) (1997), found reasonable a Terry stop based on a revoked “be-on-the-lookout” dispatch even though the police officer who stopped the vehicle did not verify the dispatch or assure its accuracy and thus did not find out that it had been withdrawn.

Nor can we substitute as an appellate finding of fact that the officer was not shown to be justified in relying on the dispatcher’s response gleaned from checking official records in forming a reasonable, articulable suspicion. That is beyond our competency. In forming an articulable suspicion, an officer is “entitled to rely on the information given him by a fellow officer.” Chumbley v. State, 180 Ga. App. 603, 604 (349 SE2d 823) (1986); see State v. Wright, 221 Ga. App. 202, 205 (3) (470 SE2d 916) (1996) (same); see generally United States v. Hensley, 469 U. S. 221, 230-231 (105 SC 675, 83 LE2d 604) (1985) (may rely on fellow officers for articulable suspicion); Whiteley v. Warden, Wyoming State Penitentiary, 401 U. S. 560, 568 (91 SC 1031, 28 LE2d 306) (1971) (may rely on fellow officers for probable cause).

The stop here is analogous to the arrest in Harvey v. State, 266 Ga. 671, 673 (469 SE2d 176) (1996), in that both were based on misinformation which the officer “neither knew, nor could be reasonably expected to have known,. . . was incorrect when he made” the arrest of Harvey and the stop of Cunningham. This Court, proceeding similarly to the Supreme Court in Harvey, should not “in hindsight . . . declare a [stop] to be invalid when the arresting officer reasonably relied upon information which he had no reason to think was incorrect. [Cits.]” Id. “[Sufficient probability, not certainty, is the touchstone of reasonableness under the Fourth Amendment. . . .” Hill v. California, 401 U. S. 797, 804 (II) (91 SC 1106, 28 LE2d 484) (1971). As in Hill, another case which like Harvey involved an arrest based in part on erroneous information, “on the record before us the officer[’s] mistake was understandable and the [stop] a reasonable response to the situation facing [him] at the time.” Hill, supra.

This Court has previously recognized that “police officers are authorized to use information received by radio as part of their basis for establishing probable cause. [Cit.]” Morgan, supra, 195 Ga. App. at 735 (3). Surely the same applies to the establishment of an articulable suspicion to conduct a less intrusive Terry stop, which does not constitute an arrest requiring probable cause. See McDaniel, supra; Chumbley, supra; Wright, supra. Compare State v. Henderson, 215 Ga. App. 215, 218 (450 SE2d 288) (1994) (the detention constituted an arrest, not a mere Terry stop, the latter of which is justified “by specific and articulable facts which reasonably warrant that [limited] intrusion”).

There is no suggestion by Cunningham, much less a shred of evidence including all reasonable inferences, that the error was attributable to any cause but the one found by the trial court.

The burden is on the State in opposing a motion to suppress evidence on the grounds of an illegal stop. OCGA § 17-5-30 (b); Davis v. State, 266 Ga. 212 (465 SE2d 438) (1996). The court had evidence to rule in favor of the State, and consequently the trial court’s ruling did not give rise to a reversible conviction.

2. Cunningham’s challenge to the sufficiency of the evidence is met with our conclusion that evidence at trial authorized a rational trier of fact to find him guilty of driving “[u]nder the influence of alcohol to the extent that it [was] less safe for [him] to drive.” OCGA § 40-6-391 (a) (1); see Martin v. State, 216 Ga. App. 25 (453 SE2d 498) (1995); Lewis v. State, 214 Ga. App. 830, 831 (1), 832 (449 SE2d 535) (1994); McFarland v. State, 210 Ga. App. 426 (2), 427 (436 SE2d 541) (1993). The sufficiency test is set out in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

The officer conducted the alco-sensor field sobriety test, which gave a positive result for alcohol. Cunningham refused to take a designated breath test. The officer testified that in his opinion Cunningham was a less safe driver, based on the officer’s observation of the state of intoxication, including that defendant was unsteady on his feet, had bloodshot eyes, slurred speech, and an odor of alcohol about his person.

The State was not required to produce any evidence that Cunningham had actually committed an unsafe act. Moss v. State, 194 Ga. App. 181,182 (390 SE2d 268) (1990). We decline defendant’s invitation to reconsider the holding in Moss and to place such a burden on the State.

3. An examination of Cunningham’s other enumerations of error does not lead to a new trial either. The conviction is affirmed.

Judgment affirmed.

Andrews, C. J, Birdsong, P. J, Smith and Eldridge, JJ, concur. McMurray, P. J., and Ruffin, J., dissent.

McMurray, Presiding Judge,

dissenting.

As I am unable to concur with the reasoning stated in Division 1 of the majority opinion, I respectfully dissent. In my view, the majority fails to recognize the significance of the factual distinctions between the present case and the authority cited in its opinion.

The cases cited by the majority involve peace officers who have acted in reliance on stale or incorrect information which has been accurately communicated to them. In contrast, the police records in the present case contained correct information which was not accurately conveyed to Officer Banks. The fact of the corruption of the information being shared does not alone remove the present case from the case law followed by the majority. The important distinction lies in the fact that Officer Banks was a party to the miscommunication which corrupted the license plate information.

As Officer Banks was a party to the faulty communications process with his dispatcher, I find it less than readily apparent that Officer Banks relied “upon information which he had no reason to think was incorrect.” Harvey v. State, 266 Ga. 671, 673 (469 SE2d 176). An officer in the field is not in a position to know that incorrect information has been entered in a computer at headquarters. But that same officer on patrol is well positioned and may reasonably be expected to know of problems with his communications with his dispatcher. Since it was the accuracy of the radio communications process between Officer Banks and his dispatcher which failed in this case, it is the integrity of that process which is at issue. “The material inquiry is whether the facts within the officer’s knowledge at the time of the arrest constituted reasonably trustworthy information which was sufficient to authorize a prudent person to believe that [a suspect] had committed an offense. [Cit.]” Id. The question then is whether the communications process between Officer Banks and the dispatcher was accurate enough to provide reasonably trustworthy information.

Decided March 20, 1998.

Cecilia M. Cooper, for appellant.

Howard S. McKelvey, Jr., Solicitor, for appellee.

While the accuracy of radio communications systems is not usually a disputed issue, it is under the facts and circumstances of the case sub judice. This leads us to the fact that the State apparently failed to recognize any burden to establish the accuracy of the radio communications system used by Officer Banks. For example, could any radio malfunction or interference have contributed to the miscommunication in this case? Officer Banks could reasonably be expected to know the answer to this question, but the trial court, as well as this Court, does not, because no evidence on this issue was introduced by the State.

More significant are the questions concerning whether an adequate protocol was used between Officer Banks and the dispatcher. Officer Banks testified that the dispatcher did not read back to him the tag number he or she was running. While there was considerable colloquy at the motion to suppress hearing acknowledging the prevalence of mental lapses, slips of the tongue, and other human failing which might impair communications, there was no attempt to establish that any sort of communications protocol had been adopted to lend accuracy to the process so that Officer Banks could reasonably rely upon the information he received from his dispatcher. Most importantly, there is no evidence that the protocol actually used by Officer Banks and the dispatcher is usually accurate.

The State having failed to prove the accuracy and reliability of the communications process between Officer Banks and the dispatcher, it follows that it has not been established that Officer Banks could reasonably rely upon information received through that process. Thus, the actions of Officer Banks must be viewed as lacking any proper articulable grounds for the stop of defendant’s car and defendant’s motion to suppress evidence should have been granted.

I am authorized to state that Judge Ruffin joins in this dissent.


author: McMurray, Presiding Judge. Smith, Judge,

text:
    A97A2120, A97A2121.
    RUBIO et al. v. DAVIS et al.; and vice versa.
    (500 SE2d 367)
   McMurray, Presiding Judge.

These related appeals arise from an incident during which three-year-old Jacob Rubio, the son of migrant farm workers Joel and Rosa Rubio, was seriously injured by a conveyor belt in Julian Wood and Lamar Davis’ packing shed. The Rubios brought this action against defendants Wood and Davis, who were partners in a watermelon farming operation when Jacob was injured.

The evidence adduced at trial, construed to support the Rubios’ claims, reveals the following: Defendants Wood and Davis hired Ramiro Ozuna to recruit and supervise a crew of workers to harvest watermelons. Because Wood and Davis instructed Ozuna that children were not allowed in the fields or the packing shed, Ozuna set up a nursery for the laborers’ children about 100 yards from defendants’ packing shed. A woman was hired to watch the children. She was paid $7 a day for her efforts.

On the morning of June 17, 1994, the Rubios arrived at defendants’ farming operation with their three children looking for work. Ozuna hired Mr. Rubio that morning and asked for Mrs. Rubio’s help later that afternoon. After agreeing to work, Mrs. Rubio placed her children in the farm’s nursery and began laboring in defendants’ packing shed, near a large conveyor belt. While the Rubios were working, some of the migrant workers’ children entered the packing shed and began crushing cans under the conveyor belt’s strong motorized mechanisms. While playing, three-year-old Jacob Rubio got caught in the conveyor belt. His arm was instantly amputated.

The trial court declared a mistrial because the jury was unable to reach a verdict. The Rubios appealed in Case No. A97A2120 after the trial court granted defendants’ joint motion for judgment notwithstanding the mistrial. Wood and Davis filed a cross-appeal in Case No. A97A2121. Held:

Case No. A97A2120

1. The Rubios contend the trial court erred in granting defendants’ motion for judgment notwithstanding the mistrial, arguing that genuine issues of material fact remain as to their alternative negligence and attractive nuisance claims. These alternative theories of liability are relevant because the evidence regarding Jacob Rubio’s status as a trespasser, licensee or invitee is hotly disputed.

“ ‘A motion for a judgment notwithstanding a mistrial is analogous to a motion for a directed verdict or motion for judgment notwithstanding the verdict in that the same can be sustained only where “(t)here is no conflict in the evidence as to any material issue and the evidence introduced, with all reasonable deductions therefrom shall demand a particular verdict.” (OCGA § 9-11-50 (a)).’ Gordon v. Carter, 126 Ga. App. 343, 344 (1) (190 SE2d 570). See also Findley v. McDaniel, 158 Ga. App. 445, 446 (1) (280 SE2d 858).” Gog-gin v. Goldman, 209 Ga. App. 251, 252 (433 SE2d 85).

In the case sub judice, the Rubios contend Jacob must have escaped from the nursery, while defendants contend Mrs. Rubio brought the child into the shed. Frank Gillis, a licensed private investigator, testified that he interviewed defendant Julian Wood and that Wood told him that, on the day of the incident, several children entered the shed to get out of the rain. He also stated that Wood “saw several children take metal cans . . . and put them in this conveyor belt and the conveyor belt was crushing them. . . '. Then he said the Rubio child walked up and put one in the conveyor belt and his arm got caught in the conveyor belt.” Wood denies making any such statement, claiming that Gillis’ testimony was “fabricated.” Defendants presented testimony that Wood was not present in the shed at the time of the accident, that they did not know any children were in the shed, and that it was not raining the day of the incident. These circumstances raise genuine issues of material fact regarding Jacob Rubio’s status as a trespasser, licensee or invitee.

The dissent’s reliance on Biggs v. Brannon Square Assoc., 174 Ga. App. 13 (329 SE2d 239), for suggesting the exclusion of attractive nuisance liability is misplaced. In Biggs, this Court excluded attractive nuisance liability because of conclusive proof that the injured child was a licensee. Id. at 14 (1). As demonstrated above, such undisputed proof does not exist in the case sub judice. Under such circumstances, a jury (under proper instructions) should resolve Jacob Rubio’s status as a trespasser, licensee, or invitee, and then consider defendants’ liability under the appropriate premises liability standard. Thus, if a jury finds that Jacob Rubio was a licensee, then defendants’ liability would be measured by the standards restated in Biggs v. Brannon Square Assoc., 174 Ga. App. 13, 16 (2), supra. If a jury decides Jacob Rubio was an invitee, then defendants’ liability would be measured by the ordinary care standard prescribed in OCGA § 51-3-1. But, if a jury finds that Jacob Rubio was trespassing in defendants’ packing shed when his arm was amputated, defendants’ liability must be measured according to Georgia’s attractive nuisance doctrine, as set out in Gregory v. Johnson, 249 Ga. 151 (289 SE2d 232).

The dissent’s reliance on Johnson v. Lanier, 140 Ga. App. 522, 524 (4) (231 SE2d 428), for suggesting that defendants’ watermelon conveyor belt is not an “attractive nuisance” is also misplaced. Lanier holds, as a matter of public policy, that a properly functioning farm tractor is not an inherently dangerous instrumentality so as to invoke attractive nuisance liability. Id. The problem with this 1976 decision, however, is that it does not apply the five-part foreseeability test which the Supreme Court of Georgia prescribed in 1982 in Gregory v. Johnson, 249 Ga. 151, 154, supra, for determining “attractive nuisance” liability.

“ A possessor of land is subject to liability for physical harm to children trespassing thereon caused by an artificial condition upon the land if (a) the place where the condition exists is one upon which the possessor knows or has reason to know that children are likely to trespass, and (b) the condition is one of which the possessor knows or has reason to know and which he realizes or should realize will involve an unreasonable risk of death or serious bodily harm to such children, and (c) the children because of their youth do not discover the condition or realize the risk involved in intermeddling with it or in coming within the area made dangerous by it, and (d) the utility to the possessor of maintaining the condition and the burden of eliminating the danger are slight as compared with the risk to children involved, and (e) the possessor fails to exercise reasonable care to eliminate the danger or otherwise to protect the children.’ [Restatement of the Law Second, Torts, § 339 (1965)].” Gregory v. Johnson, 249 Ga. 151, 154, supra.

In the case sub judice, there is proof that defendants were aware that their conveyor belt was an attraction for their migrant workers’ young children; that this motorized equipment posed serious risks of personal injury or death to these children; that Jacob Rubio, because of his youth, could not appreciate the risks involved in playing with the conveyor belt; that the utility to defendants of maintaining the conveyor belt and the burden of eliminating the danger was slight as compared with the risk to the children involved, and that defendants failed to take any steps to eliminate the danger or otherwise to protect the children. These circumstances raise genuine issues of material fact as to defendants’ potential liability under the doctrine of attractive nuisance. Gregory v. Johnson, 249 Ga. 151, 154, supra. Consequently, the trial court erred in granting defendants’ motion for judgment notwithstanding the mistrial.

2. In a second enumeration of error, the Rubios contend proof of defendants’ subsequent safety alterations to their conveyor belt should have been admitted into evidence at trial. We do not agree. The trial court did not abuse its discretion in excluding this proof based on Georgia’s strong public policy against the admission of such evidence. See Royals v. Ga. Peace Officer Standards &c. Council, 222 Ga. App. 400, 401 (1) (474 SE2d 220).

Case No. A97A2121

3. Davis and Wood contend the trial court erred in its instructions to the jury. The charge on imputed negligence enumerated as error was taken verbatim from the Council of Superior Court Judges chargebook, was adjusted to the evidence, and was not error. Council of Superior Court Judges, Suggested Pattern Jury Charges, Vol. I: Civil Cases, p. 238 (P) (2). If defendants wished the jury to be charged on the related principles outlined in Taylor v. McClendon, 205 Ga. App. 390 (422 SE2d 440), it was their responsibility to submit an appropriate request to charge — which they did not.

The charge on future earnings as an item of damages was not error even in the absence of evidence from which a jury could calculate the amount of any future earnings loss. The general requirement that some evidence showing earnings capability both before and after the injury is not applicable when the injured party is too young to have a work or earnings history. In such cases a different rule applies; the amount of damages awardable for a permanent injury to a young child rests in the sound discretion of the jury, to be exercised in the light of the jury’s own common observation and experience, in order to compensate the plaintiff for the injury actually sustained. Murray v. Sanford, 226 Ga. App. 591, 592 (487 SE2d 135).

Nor did the trial court err by instructing the jury on both attractive nuisance and negligence. While defendants contend the trial court should have determined whether Jacob Rubio was an invitee, a licensee, or a trespasser and then charged as to the appropriate duty owed to the child, the child’s status was a controverted issue for the jury. Thus, the trial court appropriately provided direction to the jury under the Rubios’ alternative claims.

Judgment affirmed in Case No. A97A2121. Judgment reversed in Case No. A97A2120.

Ruffin and Eldridge, JJ., concur. Beasley, J., concurs in the judgment only. Andrews, C. J., Birdsong, P. J., and Smith, J., dissent.

Smith, Judge,

dissenting.

I agree that the trial court erred in granting a judgment notwithstanding a mistrial on the Rubios’ negligence claim. But I dissent because the Rubios cannot simultaneously maintain a claim based upon the theory of attractive nuisance. Construing the evidence in the Rubios’ favor, as we are required to by law, they have clearly demonstrated that their child was a licensee or invitee rather than a trespasser. The majority cannot “have it both ways”; the testimony of the Rubios’ own witnesses cannot be relied upon to establish a claim of negligence and then rejected in order to sustain a simultaneous and inconsistent claim of attractive nuisance. That doctrine has no application here.

The Rubios’ investigator, Gillis, testified that Wood told him that he knew children were in the shed to shelter from the rain and that he watched several children, including the Rubio child, playing with the conveyor belt but did nothing to stop them. Wood denies making any such statement, claiming that Gillis’s testimony was “fabricated.” Defendants presented testimony that Wood was not present in the shed at the time of the accident, that they did not know any children were in the shed, and that it was not raining the day of the incident. But we must construe the evidence in favor of the Rubios.

Construed in this manner, these facts do not demonstrate a claim for attractive nuisance but rather for negligence to a licensee or invitee. In Biggs v. Brannon Square Assoc., 174 Ga. App. 13 (329 SE2d 239) (1985), this Court rejected an attempt to rely upon the theory of attractive nuisance when the evidence — which was not “conclusive” as the majority contends, but construed, as we must, most strongly in favor of the plaintiff — demonstrated that he was a licensee. We noted the leading case of Gregory v. Johnson, 249 Ga. 151 (289 SE2d 232) (1982) and its holding that a possessor of land is subject to liability for physical harm to trespassing children. Relying upon this principle, we observed that the theory of attractive nuisance “merely establishes the minimum standard of care that a landowner owes to children regardless of their status as trespassers, licensees or invitees. ... In other words, the same result as to a landowner’s liability may be arrived at without invoking the doctrine where the infant is not a trespasser and the duty to exercise due care under the circumstances has not been met.” (Citations, punctuation and emphasis omitted.) Biggs, supra at 15. “[W]e need not address the merits of the instant claim as if appellant. . . were a mere trespasser. Insofar as appellants relied upon the theory of attractive nuisance and the evidence of record demonstrates that appellant . . . was a licensee, there was no reversible error in the grant of summary judgment to appellee. That theory generally has no place in a case where the circumstances show a duty on the part of a defendant to exercise ordinary care without resort to the doctrine of attractive nuisances.” (Citations, punctuation and emphasis omitted.) Id. at 16 (1).

This case presents precisely such a situation. Construed in favor of the Rubios, the evidence shows a duty on the part of Wood and Davis to exercise ordinary care, independent of the theory of attractive nuisance. In Murray Biscuit Co. v. Hutto, 119 Ga. App. 377 (167 SE2d 182) (1969), a small child was injured by a conveyor under very similar circumstances. The child’s mother was an employee of defendant and brought the child into the defendant’s factory despite an “employees only” sign, believing that the defendant allowed children in the factory despite the sign. While the mother was talking to a relative, the child’s hand became entangled in a conveyor, and he was seriously injured.

We observed that a verdict for the defendant in Hutto was not demanded because the jury could have concluded that plaintiff was a licensee. Id. at 386 (2). Evidence was presented that defendant’s supervisor considered the machine dangerous, and that supervisors were present and saw or should have seen the child in close proximity to the machine. Under these circumstances, “it was a jury question (1) as to whether defendant impliedly permitted plaintiff’s presence so as to make him a licensee, and, if so, (2) whether defendant would reasonably expect plaintiff to be within the range of machinery which it knew to be dangerous, and, if so, (3) whether defendant then failed to exercise ordinary care to protect plaintiff under the circumstances.” Id.

Hence, even if we accept Wood and Davis’s contention that Mrs. Rubio brought her child into the packing shed, the facts as construed in favor of the Rubios present an issue of negligence. Testimony that Wood knew the machine was dangerous to children, saw children in the shed, and saw the children, including Jacob Rubio, playing with the conveyor but did not intervene, places this case squarely within the application of the Hutto decision.

Moreover, in another case with remarkably similar facts, this Court has held that farm equipment operating in a farm field in an ordinary manner is not an attractive nuisance. In Johnson v. Lanier, 140 Ga. App. 522 (231 SE2d 428) (1976), a farmer hired an independent contractor to harvest a field, and the farmer furnished a tractor and trailer to accomplish the work. A number of the contractor’s relatives participated in the work, and the four-year-old grandson of the contractor was in the care of a relative in a house across the road from the field. The child somehow eluded his babysitter, entered the field unnoticed, and became entangled in the power take-off valve of the tractor, suffering multiple severe injuries.

In affirming summary judgment in favor of the farmer, this Court rejected the contention that the tractor was an attractive nuisance: “There was no allegation or evidence that the tractor involved was operating in a different fashion from any other tractor with its power take-off valve in operation. A farm tractor with a trailer attached is commonly found in a corn field when corn is being harvested. It would be extending the doctrine of attractive nuisance too far to hold that a farm tractor in a farm field running in a normal manner and not dangerous in itself, although possibly attractive to children, is inherently dangerous, even though such a tractor might be capable of inflicting injury if improperly or carelessly used. [Cit.]” Id. at 525 (4).

Decided March 20, 1998.

Mitchell M. Shook, for appellants.

Reinhardt, Whitley & Wilmot, Glenn Whitley, J. Reese Franklin, for appellees.

Accordingly, the issue presented for the jury is one of negligence, not attractive nuisance, and defendants were entitled to a partial judgment notwithstanding a mistrial on the claim of attractive nuisance.

For these reasons, I respectfully dissent.

I am authorized to state that Presiding Judge Birdsong joins in this dissent.

       A third defendant, the owner of the property on which the incident occurred, was dismissed without prejudice.

       Defendants base this contention on testimony that a box was found near the scene of the accident with a blanket and a pillow in it.

       This disposition is consistent with the Second Restatement of the Law of Torts’ comment that all rules relating to the attractive nuisance doctrine “are equally applicable where the child is a licensee or an invitee.” Restatement of the Law Second, Torts, § 343B, p. 223, comment b (1965).


text:
    A97A2160.
    JOHNSON v. LOY.
    (499 SE2d 140)
   Beasley, Judge.

Between 5:30 and 6:00 p.m. on the evening of August 18, 1994, Suzette Johnson left the retail Color Tile store where she had gone as a customer. She crossed the raised sidewalk and walked onto a short concrete ramp which provided a sloped access to the asphalt parking lot one step below. She stepped on what her attorney described as a “gouge,” lost her balance, fell and was injured.

Her expert referred to the condition as a “groove” which constituted “an inordinately severe and hazardous irregular depression on the surface of the ramp.” By affidavit he testified that it was caused by “weathering coupled with wear and tear of ramp usage” and that it had existed “for several years prior to my inspection in December 1997,” four months after Johnson’s fall.

Loy, a resident of a distant state since the 1920s, was the owner of the property on the date of the incident. She and her husband bought the property in 1977. She had no knowledge of the ramp or when it was constructed, and she knew nothing of its condition.

The proprietor of the Color Tile business had secured a 20-year lease with the Loys’ predecessor for the whole three-store strip, which lease was to expire in June 1995. It provided for construction of the building by the then-owner within a given time.

Lessee agreed, at its expense, to maintain and keep the premises in good condition and repair and in clean and wholesome condition, including replacement of the building and all parts thereof. Specific attention was given to “all sidewalks and areas adjacent thereto,” as well as all improvements “in the area thereof,” which lessee agreed to keep “safe and secure” and in compliance with all local government requirements. Damage to the improvements was to be repaired by the lessee at its expense.

A covenant of “quiet and peaceable enjoyment” passed possession and the right of possession to Color Tile, although the lessor retained the right to enter the premises “at all reasonable times during business hours for the purpose of inspecting the same.” The lessor also retained the right to do any of the things lessee was obligated but failed to do, upon notice, chargeable to lessee, but lessor was not obligated to act.

The lease was subordinate to Loy’s mortgage, and in October 1993 the mortgagee initiated an inspection of the property to protect its investment. A copy of the inspection report was sent to the borrower, in this case Loy. The inspection report showed the exterior as well as the grounds to be in “good” as opposed to “excellent” or “poor” condition; the interior was classed as “poor.” Repairs “needed to protect [the] property” included “repair asphalt where alligatoring has occurred; restripe faded parking stripe.” There is only one “general comment”: “This property’s condition shows signs of neglect and must receive better care.”

Suzette Johnson sued Helen Loy for negligence in causing her injuries. After discovery and a hearing on defendant’s motion for summary judgment, the trial court granted judgment to Loy, which prompted the appeal.

The trial court ruled as follows:

A. Loy had no duty under the lease to maintain the premises and make repairs because that duty was passed to the tenant along with possession and the right of possession. This included the duty to maintain and repair which the lender required of the borrower in the deed to secure debt.

B. The lease provision reserving to Loy the right to inspect the property was not for the purpose of making repairs, which was the duty of the tenant, but for the purpose of assuring tenant compliance with lease terms. This provision imposed no duty to repair on the landlord.

C. The inspection report did not put Loy on notice that the ramp was defective or needed repair. The ramp is not mentioned in the report, and the reference to alligatoring was to the parking lot asphalt, not the ramp.

D. If Johnson’s fall and injuries were due to someone’s negligence other than her own, it was tenant Color Tile’s, and Colquitt v. Rowland, 265 Ga. 905 (463 SE2d 491) (1995) holds that the lessor-property owner is not liable to a third party for negligent acts of a tenant.

Distilled to their essence, Johnson’s contentions on appeal are five-fold:

A. A landlord cannot delegate the statutory duty towards third persons to repair defects in premises, which duty is contained in OCGA § 44-7-14.

B. In addition to the non-delegable statutory duty, the deed to secure debt required the borrower to maintain and repair, and that obligation inured to the benefit of third parties injured on the property which secured the debt.

C. The lease provision giving the landlord the right to inspect was not only for the purpose of assuring compliance but also for the purpose of discovering the need for repairs and making them.

D. The inspection report notified Loy of the alligatoring problem and the general comment that “signs of neglect” indicated the need for “better care,” which gave rise to a duty to inspect and so to discover and repair any patent or latent defects such as the depression in the ramp.

E. The duty on Loy created by the deed to secure debt, coupled with the right retained by her under the lease to make repairs if the tenant did not, obligated her after notice given by the inspection report to repair the ramp; consequently, her failure to do so would allow a jury to find her liable to the tenant’s invitee for injuries due to the defective ramp.

1. In reviewing a judgment based on the grant of a motion for summary judgment pursuant to OCGA § 9-11-56 (c), the appellate court examines the record anew to ascertain whether first, the trial court accurately ruled that there were no genuine issues as to any material fact and second, the trial court correctly applied the law to the undisputed facts. Moore v. Food Assoc., 210 Ga. App. 780, 781 (437 SE2d 832) (1993).

In this process the evidence is construed in the respondent’s favor, and the respondent is given the benefit of all doubts and all reasonable inferences, because it is the burden of the one who seeks judgment without trial to establish the basis for the court’s ruling on the first question. Id. But “a party who will not bear the burden of proof at trial need not conclusively prove the opposite of each element of the non-moving party’s case.” Lau’s Corp. v. Haskins, 261 Ga. 491, 495 (4) (405 SE2d 474) (1991). The moving party may simply show “that there is an absence of evidence to support the nonmoving party’s case.” Id. at 491.

Thus, plaintiff Johnson must prove, among other things (proximate cause and damages), that defendant Loy owed a duty to her and that Loy failed to conform to the standard of care required. Sutter v. Hutchings, 254 Ga. 194, 196 (327 SE2d 716) (1985).

2. The law provides: “Where an owner or occupier of land, by express or implied invitation, induces or leads others to come upon his premises for any lawful purpose, he is liable in damages to such persons for injuries caused by his failure to exercise ordinary care in keeping the premises and approaches safe.” OCGA § 51-3-1.

Nevertheless, as to an owner-landlord, the law further provides: “Having fully parted with possession and the right of possession, the landlord is not responsible to third persons for damages resulting from the negligence or illegal use of the premises by the tenant; provided, however, the landlord is responsible for damages arising from defective construction or for damages arising from the failure to keep the premises in repair.” OCGA § 44-7-14. The liability of an owner for failure to repair who, like Loy, has fully parted with possession and the right of possession, arises only in instances where “there is a duty to repair and notice has been given of the defect ([cit.])” Maloof v. Blackmon, 105 Ga. App. 207, 208 (4) (a) (124 SE2d 441) (1962). See Godwin v. Olshan, 161 Ga. App. 35, 36 (2) (288 SE2d 850) (1982) (landlord who fully parted with possession of premises had no legal duty to keep leased areas of shopping center safe); Holiday Inns v. Newton, 157 Ga. App. 436 (278 SE2d 85) (1981); compare Levy v. Logan, 99 Ga. App. 253, 255 (1) (108 SE2d 307) (1959) (retaining control or right to inspect, for purposes of repair, retains liability of owner to third persons for injuries from defects).

By the terms of the lease Loy fully relinquished possession and the right of possession and gave an express covenant of quiet enjoyment to Color Tile; in fact, the lease expressly passed to the tenant in control of the premises the duty to maintain it and make necessary repairs. The commercial tenant who has exclusive use is in the best position to preserve the property by safeguarding its use, undertaking preventive measures, detecting disrepair or hazards, and correcting them.

When such a tenant agrees by contract with the landlord to be responsible for maintenance and repair, thereby undertaking the legal duty imposed by OCGA § 44-7-14, public policy does not require the landlord to remain liable to third parties for negligence unless there is notice. OCGA § 44-7-2 (b) (2), which prohibits landlords from waiving, assigning, transferring, or otherwise avoiding the rights, duties, and remedies provided by OCGA § 44-7-14, applies only to property to be used “as a dwelling place.” Color Tile’s store certainly did not fit that limited category, and there is no other comparable statute for commercial premises.

It is true, as Johnson points out, that the lease retained in Loy the right to enter the premises “at all reasonable times during business hours for the purpose of inspecting the same,” as well as the right to do at Color Tile’s expense anything Color Tile failed to do as was required of it by the terms of the lease. But these provisions, whether taken separately or in tandem, established no correlative duty to repair. As stated in Godwin, supra at 36 (2), “retention of. . . the right to enter the leased premises . . . during business hours for landlord-related purposes does not evidence such dominion and control of the premises so as to vitiate [landlord’s] limited liability under [OCGA § 44-7-14] and replace it with the liability imposed by [OCGA § 51-3-1]. [Cits.]” Ladson Investments v. Bagent, 151 Ga. App. 24, 25 (1) (258 SE2d 718) (1979) (“the duty to inspect arising from such a reservation clause is only commensurate with the scope of the obligation to repair”); Leonard v. Fulton Nat. Bank of Atlanta, 86 Ga. App. 635, 638 (72 SE2d 93) (1952) (“[t]he right to inspect is not the equivalent of the right to possess premises, so as to make the landlord liable for the negligence ... by the tenant”).

Ley’s limited contractual right to inspect and right to repair at tenant’s expense did not carry with them a duty to third parties such as invitee Johnson to safeguard her from harm from a weather-and-use-worn ramp about which Loy did not know. The duty to repair was placed, in no uncertain terms by other provisions of the lease, squarely on the shoulders of the tenant, Color Tile.

3. Johnson contends that a paragraph in Loy’s deed to secure debt gave rise to a duty to repair which inured to the benefit of third-party invitees such as herself. Under the provision entitled “Care of Premises,” Loy promised the lender as follows:

“The Borrower will keep the improvements now or hereafter erected on the premises in good condition and repair, will not commit or suffer any waste, will perform all such acts with respect to the premises as may be reasonably necessary in the opinion of the Lender under the circumstances of the character and use of the premises, will keep all improvements free of termites, dry rot and all other destructive pests, will keep all plants and lawns in good condition and will not do or suffer to be done anything which will increase the risk of fire or other hazard to the premises or any part thereof.”

As shown by its wording, the purpose of imposing on Loy, as the borrower against this property, the duty created by this portion of the deed was to protect the investment of the lender by preserving the property which secured it. It was not, nor did it include, a duty to third persons visiting the premises. There is no evidence that the lender objected to the imposition of this duty on the borrower’s tenant. The lender would have known there was a tenant in possession, as the record contains evidence of at least one inspection undertaken at its request. Of course, the lease provision did not absolve landlord Loy of her obligation, as borrower, to her lender to keep the property in good repair and so forth.

There is one instance, where the owner who has parted with possession and right of possession and the tenant has undertaken the duty to repair, in which the owner may be liable to third parties for injury. That is where the owner has notice of a dangerous or hazardous condition on the premises. The láw holds the owner responsible for defects "of which he knows or in the exercise of reasonable diligence ought to know.” (Citations and punctuation omitted.) Birdsey v. Greene, 176 Ga. 688, 692 (168 SE 564) (1933); Flagler Co. v. Savage, 258 Ga. 335, 337 (2) (368 SE2d 504) (1988) (lease could not relieve landlord of duty to third persons to keep premises in repair; since Birdsey is cited for this principle, it includes the condition of notice); Howell Gas of Athens v. Coile, 112 Ga. App. 732, 738-739 (1) (a) (146 SE2d 145) (1965) (landlord who has no notice of defect giving rise to need for repair has no duty to third party; landlord has no legal duty to inspect to discover defects); Groutas v. McCoy, 219 Ga. App. 252 (1) (464 SE2d 657) (1995) (lease gave tenant exclusive control and obligation to keep premises, except for certain items not including fence, in repair and in compliance with laws; no evidence that owner had notice of noncompliance or defect in fence); Echols v. Patterson, 60 Ga. App. 372 (1) (4 SE2d 81) (1939) (no duty to inspect but duty to repair exists where the fact of a defect was known to landlord).

4. Johnson does not contend, nor is there any evidence to show, that Loy knew of the alleged defect in the ramp itself. In fact, the undisputed evidence is that she did not even know of the existence of the ramp. There is no evidence of whether it was built before the Loys purchased the property or whether Color Tile built it.

Thus we address Johnson’s challenge to the trial court’s conclusion that the inspection report did not put Loy on notice. In Brandy-wine Townhouses v. Morrison, 200 Ga. App. 425, 426 (1) (408 SE2d 422) (1991), a non-precedential case cited by Johnson, the Court depended on earlier cases for the proposition that "[w]hen a landlord is put on notice of a patent defect, he is also charged with knowledge of any latent dangerous condition that a reasonable inspection would have revealed. If he does not make any necessary repairs within a reasonable time, he can be held liable for injuries resulting from the dangerous condition. [Cits.]” Id. at 427 (1). The court ruled that questions remained concerning whether a reasonable inspection would have revealed a latent dangerous condition (scalding hot water) which was “associated with” water in the globe of the kitchen ceiling light fixture. The tenant, who discovered water in the globe after she had taken a bath in the bathroom directly above the kitchen, reported to the owner on the next morning a leak in the bathroom and water in the globe. The workman did not find the problem, and that evening the tenant and her friend were scalded when they tried to remove the water from the globe.

In the instant case, alligatoring of the parking lot did not relate to the depression in the adjacent ramp. It was not associated with it in any way, and the problem on the ramp was not “alligatoring,” nor did the general comment of the inspector, which merely called for better care in the future because of the general condition which the property had acquired through use. In this regard, it was only the interior of the building which rated a “poor” rating by the inspector, whereas the exterior and grounds were rated “good.” Although the only specific repairs needed were to the exterior, the ramp was not mentioned.

A jury could not, as a matter of law, find in this report notice to owner Loy of a depression in the ramp. Plaintiff Johnson has presented no other evidence of notice. Thus it is not a case of a landlord who in the exercise of reasonable diligence should have known of the defect.

As in Stephens v. Ernie’s Steakhouse &c., 215 Ga. App. 166, 169 (2) (450 SE2d 275) (1994), summary judgment was properly granted to the owner in a suit brought by a customer of the tenant retail establishment for injuries suffered in a fall on an outside access ramp, because the owner had no notice of a defective condition and no duty to inspect or maintain the ramp.

In Colquitt v. Rowland, 265 Ga. 905, 906 (463 SE2d 491) (1995), the Supreme Court stated that OCGA § 44-7-14 makes it clear that “a landlord who relinquishes possession of the premises cannot be liable to third parties for damages arising from the negligence of the tenant. [Cits.]” As stated earlier, plaintiff Johnson’s expert, an experienced professional architect, inspected the ramp in December 1994 and testified by affidavit that the depression or groove in the ramp was “the result of weathering coupled with wear and tear of ramp usage” and that in his opinion “this dangerous condition existed for several years prior to [his] inspection.” Color Tile had been in exclusive control through the contracted-for possession and right of possession since 1975. It is inescapable that if the deteriorated condition of the ramp constituted a hazard, it occurred because of Color Tile’s, if anyone’s, negligence.

Decided March 20, 1998.

Post & Pond, Bruce Berger, for appellant.

Michael A. Kessler, for appellee.

Judgment affirmed.

McMurray, P. J., and Smith, J., concur.

       Johnson initially complained of negligent construction by Loy but abandoned that theory of recovery after it became clear that the premises had been constructed before Loy became owner and there was no proof that the ramp was constructed during Loy’s ownership. An abbreviated history of the landlord’s duty under the law is recited in Thompson v. Crownover, 259 Ga. 126, 127-128 (1) (381 SE2d 283) (1989).


author: Blackburn, Judge. Smith, Judge,

text:
    A97A2184.
    ALLEN et al. v. KAHN et al.
    (499 SE2d 164)
   Blackburn, Judge.

Plaintiffs appeal the trial court’s grant of defendants’ motions to dismiss their claim due to improper service and process. For the reasons discussed below, we reverse.

Following an automobile accident on December 14, 1993, Marla Beth Shadburn was treated at Southern Regional Medical Center for her injuries. It is undisputed that plaintiffs subsequently filed a medical malpractice claim with regard to Shadburn’s treatment against Southern Regional, Dr. William C. Land, Jr., Dr. Imtiaz A. Khan, Dr. Majed Zakaria, and Dr. Willie Cochran, Jr., on December 8, 1995, six days prior to the running of the statute of limitation on the claim. On December 11, 1995, plaintiffs attempted to serve the defendants by leaving process with Mary Wakem, a receptionist at Southern Regional. Each of the defendants subsequently filed a motion to dismiss based on insufficiency of service and process, contending that Wakem was not authorized to accept service for any of the defendants. Plaintiffs then had the defendants served again outside the statute of limitation. On the second service, Dr. Zakaria was personally served in the original action on March 19,1996, Dr. Cochran was personally served on March 14, 1996, and Dr. Land was personally served on April 2, 1996. Substituted service was made on Dr. Kahn at his most notorious place of abode through delivery of process to his roommate on March 18, 1996, and Southern Regional was served through its registered agent on March 15, 1996. The validity of the second service was never disputed.

The trial court had not ruled on or held a hearing on defendants’ motion to dismiss, as of April 3, 1996, when plaintiffs voluntarily dis-. missed their original action. Relying on the renewal statute, OCGA § 9-2-61, plaintiffs filed a second action on August 23, 1996. All defendants were served in the renewal action within the six-month renewal period.

The issue before us is whether the renewal statute was available to the plaintiffs in this case, where the defendants were not legally served until after the expiration of the statute of limitation, but plaintiffs dismissed their complaint before the original trial court ruled on the reasonableness of such service.

Our Supreme Court has squarely addressed this issue, and we are required to follow its holding. See Hobbs v. Arthur, 264 Ga. 359 (444 SE2d 322) (1994). It has held that the renewal statute remains available to a plaintiff where, as here, the original action is filed prior to the running of the statute of limitation and proper service is not perfected on a defendant until after the expiration of such statute, provided that the plaintiff voluntarily dismisses the original action before the trial court rules that the case should be dismissed for lack of diligence in perfecting service, in which case the original action becomes void. Id. at 360. In Hobbs, two different suits were found to be subject to the renewal statute, and in both of them, service was not attempted until after the statute of limitation had run.

In such a case, where the issue is the reasonableness of the service on defendant, outside the statute of limitation, of a timely-filed action, the original action is not void, but is merely voidable and, therefore, subject to renewal. Our Supreme Court has held that such issue cannot be raised in the renewal action. “[A]ny delay in service in a valid first action is not available as an affirmative defense in the renewal action.” Id. at 360-361.

It is a different circumstance where the issue is the authority of the person served to receive service, or other failures to follow statutory requirements as to service. Such circumstances address the validity of the service, rather than its reasonableness, as addressed in Hobbs. In such a situation, the fact that there has been one invalid service on the defendants does not necessarily preclude a subsequent valid service, outside the statute of limitation, which relates back to the timely-filed complaint.

The courts generally apply a diligence standard to plaintiffs who timely file their complaints but serve the defendants after the statute of limitation has run to determine whether late service relates back to the date of filing. See Morse v. Flint River Community Hosp., 215 Ga. App. 224 (450 SE2d 253) (1994).

In Georgia, if a complaint has been timely filed, and is followed by diligent service, perfected as required by law, even though such service is outside the statute of limitation, it will relate back to the time of filing of the complaint. Childs v. Catlin, 134 Ga. App. 778 (216 SE2d 360) (1975); McCane v. Sowinski, 143 Ga. App. 724 (240 SE2d 132) (1977); OCGA § 9-11-4.

In Dinkins v. Dependable Courier Svc., the case consolidated with Hobbs, supra, the “[p]laintiff. . . dismissed [her] first personal injury action against defendant. . . after the latter filed a motion [to dismiss] asserting the affirmative defense[ ] of improper service, but prior to a ruling on the motion. Although service had been perfected, it had been accomplished long after the expiration of the statute of limitation. [Plaintiff] timely refiled [her] suit under OCGA § 9-2-61 (a) and served [defendant].” Id. at 361. Our Supreme Court held that the trial court properly denied defendant’s motion for summary judgment which was premised on laches and the expiration of the statute of limitation defenses with respect to the original action. Id. at 362.

The Supreme Court specifically precluded consideration of the issue of the reasonableness of the service in the original action in the renewal action. It limits consideration of the reasonableness of service to that obtained in the renewal action. Hobbs does not, however, preclude consideration of the failure to properly serve a person authorized to receive service in either the original or the renewal action, unless waived by the party entitled to assert such defense.

The fact that the plaintiff dismisses its action prior to the trial court’s ruling on a defendant’s motion to dismiss for failure to serve one authorized to receive service in the original action, does not preclude such defendant from raising this issue in the renewal action. If such failure is shown, there was no valid service in the original action and it was void, not merely voidable, and the renewal action should be dismissed.

In the present case, the defendants mistakenly contend that, since they were not properly served in the original malpractice action until the statute of limitation had expired, the original action is invalid and not subject to renewal. Defendants rely on Brooks v. Young, 220 Ga. App. 47 (467 SE2d 230) (1996); Ludi v. Van Metre, 221 Ga. App. 479 (471 SE2d 913) (1996); and Driver v. Nunnallee, 226 Ga. App. 563 (487 SE2d 122) (1997) as authority for their position.

In summary, in Brooks, the minor defendant Brooks was served within the statute of limitation by plaintiff Young, but her minority was not recognized, and her parents were not served, there being no guardian. The following sequence of events then occurred: Brooks attained majority; the statute of limitation expired; Brooks filed a motion to dismiss based on the invalid service upon her as a minor; Young re-served Brooks as an adult', prior to the court ruling on defendant’s motion to dismiss, Young voluntarily dismissed the action; Young then refiled the action under the renewal statute and served Brooks; Brooks refiled her motion to dismiss which the trial court denied; and on Brooks’ appeal, this Court reversed the trial court’s ruling. This Court held: “No valid prior suit existed that Young could renew, because service was not perfected on Brooks within the applicable statute of limitation.” (Emphasis supplied.)

In the Brooks opinion however, this Court ignored the second valid service on December 19, 1994 after the defendant had attained adulthood on March 14, 1994. The statute of limitation expired on November 13, 1994, approximately one month prior to the second service. Then, on January 18, 1995, the plaintiff dismissed the action prior to any ruling on service in the original action and refiled pursuant to the renewal statute on January 27, 1995. On these facts, Brooks incorrectly held that the plaintiff’s original action was void and not subject to renewal. Brooks states, in part, “[although Brooks was served the second time on December 19, 1994, after she reached majority, this service fell outside the limitation period.” Id. However, Georgia law does not require that service be perfected within the statute of limitation on a timely-filed action. See OCGA § 9-11-4; Childs v. Catlin, supra; McCane v. Sowinski, supra.

Brooks therefore clearly involved the issue of the timeliness of the second service in the original action. Such issue could not be raised in the renewal action under our Supreme Court’s holding in Hobbs. This is clear from the quotation from Hobbs contained in Brooks. The Brooks court stated “the focus of Hobbs [is] diligence in serving a renewed complaint. The Supreme Court stated in that case that diligence in a renewal action must be measured from the time of filing the renewed suit and added that delay in service in a valid first action is not available as an affirmative defense in the renewal action” (Punctuation omitted; emphasis supplied.) Brooks, supra. While diligence in serving a renewed complaint was certainly integral to the holding in Brooks, it was no more so than that case’s pivotal distinction between void and voidable cases with regard to the renewal statute. As such, Hobbs cannot be limited to the focus described in Brooks, as the holding in the former was considerably broader.

We overrule Brooks to the extent that it holds that there can be no valid service of an original action outside the statute of limitation.

While Ludi was properly decided, it relied, in part, on the incorrect language of Brooks, and must be limited to that extent. In Ludi, the plaintiff filed a medical malpractice action against the defendant on August 17, 1994. A private process server served the defendant’s receptionist on August 22, 1994. The statute of limitation on the plaintiff’s claim ran on September 10, 1994. When the validity of the original service was raised, the private process server again sought to serve the defendant on October 31, 1994. He left the summons and complaint on the defendant’s porch and waited in his car until he saw the defendant open the door and retrieve it. The plaintiff then dismissed her original action on November 16, 1994, and refiled pursuant to the renewal statute on December 15,1994. This case turned on the question of whether or not this action constituted personal service, a different issue than is involved in the present case. This Court held that ultimately there had been no -valid personal service and therefore the plaintiff’s case was void and could not be renewed. However, relying on the language in Brooks, the Ludi opinion stated that service occurring outside the statute of limitation need not be considered in determining whether an action is void or voidable for purposes of the renewal statute. Ludi, supra at 482 (4). This statement, however, contradicts the law of Hobbs, as discussed above. As such, we must disapprove of Division 4 in Ludi to the extent that it states that service occurring after the statute of limitation need not be considered in determining whether a case is void or merely voidable for purposes of the renewal statute.

Finally, Driver, though distinguishable on its facts and rightly decided, unnecessarily relies on language in Brooks and must be limited to that extent. That case involved a collision between two autos owned by Georgia citizens on February 14, 1992. Plaintiffs therein filed their complaint in January 1994. However, plaintiffs did not obtain service on the defendant prior to her February 1994 move to Michigan, and the statute of limitation ran before defendant was served with the original complaint at her Michigan address in March 1994. The original complaint contended that defendant was a Georgia resident. Therefore, service under OCGA § 9-11-4 (e) (2) was required. While the Drivers ultimately amended their complaint to allege that defendant was a resident of Michigan subject to service under the Long Arm Statute, such amended complaint was never served on defendant. It is undisputed that no affidavit was filed in connection with the complaint, showing that defendant was a Georgia resident, but that service needed to be obtained outside Georgia, and no order was filed providing for personal service outside Georgia, as required by OCGA § 9-11-4 (e) (2). Accordingly, the trial court properly dismissed the complaint. There was no issue for the court to resolve concerning the invalid service. No renewal action was involved in Driver. Therefore, as with Ludi, we must limit Driver to the extent that it relies on the language of Brooks, which states that valid service in an original action cannot be had outside the statute of limitation.

Therefore, contrary to Brooks, Ludi, and Driver, the holding of Hobbs cannot be limited to diligence in perfecting service of a renewed action or consideration of service occurring prior to the statute of limitation with regard to the availability of the renewal statute. This conclusion is supported by our Supreme Court’s recent opinion in U. S. Fidelity &c. Co. v. Reid, 268 Ga. 432 (491 SE2d 50) (1997). In Reid, plaintiff served her uninsured motorist carrier after the statute of limitation had run on her claim, voluntarily dismissed her case, and refiled under the renewal statute. Holding that the plaintiff’s case could be renewed, the Supreme Court held, “Reid’s previous suit clearly was not ‘wholly void,’ since service in that case was perfected and the trial court did not enter an order of dismissal.” Id. at 433, citing Hobbs, supra. Thus, it is evident that service both before and after the statute of limitation must be considered when determining whether a plaintiff may avail himself of the renewal statute.

The special concurrence argues that Brooks was a minor at the time of suit and plaintiff was required to strictly comply with the service requirements on a minor. While this is true, it ignores the fact that Brooks attained majority prior to the expiration of the statute of limitation and was served within a month of the running of such statute, while an adult, and the reasonableness of such service was never ruled on by the trial court in the original action. For the reasons outlined above, a prior invalid service does not preclude a later valid service, and Hobbs precludes a review of such service in the renewal action.

The special concurrence further contends that plaintiff must show reasonable and diligent efforts to perfect service outside the five-day period outlined in OCGA § 9-11-4 (c). The special concurrence states that the plaintiff in Brooks also had “the corresponding requirement that a plaintiff show reasonable and diligent efforts to perfect service outside the five-day period, an obligation that does not arise only upon expiration of the statute of limitation!’ OCGA § 9-11-4 (c) provides in part “but failure to make service within the five-day period will not invalidate a later service.” The special concurrence relies on Devoe v. Callis, 212 Ga. App. 618, 620 (442 SE2d 765) (1994). Devoe involved the grant of summary judgment to defendant where the complaint was filed one day before the expiration of the statute of limitation and service was not accomplished until 81 days after the running of such statute. The trial court in the original action granted summary judgment to defendant. Devoe did not involve a renewal action. It therefore has no application to the present case. If the analysis of the special concurrence is correct, then a plaintiff’s case could be dismissed for failure to be reasonably diligent in serving the defendant even within the statute of limitation.

It is unnecessary, however, to even address whether or not plaintiff’s service on defendant in Brooks was reasonable, as Hobbs specifically precludes such inquiry. In Hobbs, a case in which service was not even attempted until after the statute of limitation had run, the court held that where a plaintiff timely files its complaint, and service is obtained outside the statute of limitation, the plaintiff may dismiss the action and file a renewal action provided it does so prior to the trial court ruling on the reasonableness of such service in the original action.

That is exactly what happened in Brooks, and under Hobbs, the reasonableness of the service in the original action cannot be attacked in the renewal action. Therefore, the special concurrence’s argument that the original service in Brooks was not reasonable is precluded by the Supreme Court’s holding in Hobbs.

Decided March 20, 1998

Ham, Jenkins, Wilson & Wangerin, Kevin A. Wangerin, for appellants.

Webb, Carlock, Copeland, Semler & Stair, Dennis G. Lovell, Jr., for appellees.

Judgment reversed.

Andrews, C. J., McMurray, P. J, Birdsong, P. J., Pope, P. J., Johnson, Ruffin and Eldridge, JJ., concur. Smith, J., concurs specially. Beasley, J., concurs in the judgment only.

Smith, Judge,

concurring specially.

I agree with Judge Blackburn that Brooks v. Young, 220 Ga. App. 47 (467 SE2d 230) (1996), should be overruled to the extent it holds that there can be no valid service of an original action outside the statute of limitation. This was an overbroad statement of the law, given the special circumstances present in Brooks. Not only was Brooks a minor at the time of suit and therefore protected by the “strict compliance” required in serving a minor, id. at 48, but the suit against her had been pending for over a year before expiration of the statute of limitation. Plaintiff failed to ascertain Brooks’s legal status or properly serve her for over one year after suit commenced. Brooks therefore involved not only the general rule that the five-day period for service under OCGA § 9-11-4 (c) is not absolute, Childs v. Catlin, 134 Ga. App. 778 (216 SE2d 360) (1975), but also the corresponding requirement that a plaintiff show reasonable and diligent efforts to perfect service outside the five-day period. Devoe v. Callis, 212 Ga. App. 618, 620 (442 SE2d 765) (1994). A plaintiff’s obligation to ascertain the correct facts necessary for service of a defendant does not arise only upon expiration of the statute of limitation. Id. at 619. To the extent, however, that any language in the opinion appeared to state as a general proposition that there can be no valid service of an original action outside the statute of limitation, it was incorrect and should be overruled.


author: McMurray, Presiding Judge.

text:
    A97A2190.
    In the Interest of C. W. S. et al., children.
    (498 SE2d 813)
   McMurray, Presiding Judge.

This is an appeal from a termination of parental rights based on parental misconduct or inability. OCGA § 15-11-81 (b) (4) (A). The mother appeals the juvenile court judgment of termination of her parental rights in two children, C. W. S., born May 18, 1992, and T. M. S., born June 6, 1993. Held:

1. Though the appellant mother presents nine enumerations of error, her brief contains only one continuous argument instead of the separate arguments required by Court of Appeals Rule 27 (c) (1). While the failure to present arguments in the format specified by our rules may result in a refusal by this Court to even consider one’s argument, in this case we will address appellant’s enumerations of error based on what we perceive those arguments to be. Brown v. State, 228 Ga. App. 748, 750 (1) (492 SE2d 555); John Crane, Inc. v. Wommack, 227 Ga. App. 538 (1) (489 SE2d 527).

2. “Pursuant to OCGA § 15-11-81 (a), a juvenile court deciding whether to terminate a parent’s rights employs a two-prong test, first determining whether there is ‘clear and convincing evidence of parental misconduct or inability.’ For purposes of this case, a finding of ‘parental misconduct or inability’ must rest on clear and convincing evidence showing: 1) that the child is deprived; 2) that the cause of the deprivation is a lack of proper parental care or control; 3) that the cause of the deprivation is likely to continue or will not likely be remedied; and 4) that the continued deprivation is likely to cause physical, mental, emotional, or moral harm to the child. OCGA § 15-11-81 (b) (4) (A). If the first prong of the test is met, the trial court then considers whether the termination of parental rights is in the child’s best interests.” In the Interest of R. N., 224 Ga. App. 202 (480 SE2d 243).

The Douglas County Department of Family & Children Services (“DFACS”) first became involved with appellant in connection with an older child with regard to whom appellant’s parental rights were terminated in 1995. T. M. S. first came into foster care on May 16, 1994, following hospitalization due to a failure to thrive, and C. W. S. entered foster care on March 20, 1995. On May 10, 1995, both children were adjudicated to be deprived children based on admissions by appellant that the children were deprived, that she was not able to provide proper parental care, guidance, and supervision for the children, and with regard to T. M. S., that the child was undernourished and malnourished.

Caseworkers testified thát the home where appellant lived with the children was frequently in disarray, had hygiene problems, was unclean and unsanitary, there were pet feces on the floor, and the home was in deplorable condition and not appropriate for small children. While the children were not left alone, they were left with a number of different persons, including a person with criminal charges of cruelty to children.

The foster mother of T. M. S. testified that she first became involved with this child while the child was hospitalized as a failure to thrive child. The foster mother stated that in visiting T. M. S. on five consecutive days she never saw appellant at the hospital.

The foster parents of C. W. S. described the condition of the child at the time the child was placed in their home. C. W. S. had on overalls which were too small, and no shirt or diaper, was soaked with urine, was not toilet trained, and was very dirty. The child also had skin tears on his feet, other marks and bruises, and could not talk.

A case plan dated June 12, 1995, was approved by the juvenile court. However, appellant did not comply with many of the provisions of the case plan. She did not submit to a psychological evaluation as scheduled (but did comply with this requirement after the petition for termination of parental rights was filed), attend parenting classes, or pay child support as ordered. She had some visits with the children, but did not visit each week as provided in the case plan and some of the visits did not last for the full hour scheduled.

In September 1995, appellant’s visits with the children were stopped. This action was taken on the recommendation of a psychologist following his observation of the adverse reactions the children were having to the visits. T. M. S. would sweat profusely, run a temperature, and cling to the caseworker. C. W. S.’s behavior became erratic and aggressive.

An evaluation of appellant by a second psychologist, Dr. Dennis Lloyd Herendeen, revealed an IQ composite score of 48 on the Kaufman Brief Intelligence Test and a full scale active score of 55 on the Shipley Institute of Living Scale. Both of these scores were well inside the mild mental retardation range. Dr. Herendeen testified that such scores would definitely be of concern with regard to ability to provide basic child care. This witness also noted that appellant’s score on the Child Abuse Potential Inventory raised concerns about the abuse potential and the safety of the children. Dr. Herendeen opined that appellant would not have the ability to provide proper parenting for her children and stated additional concerns arising from a diagnosis of chronic post-traumatic stress disorder and, under Axis II, a diagnosis of personality disorder not otherwise specified with borderline narcissistic and anti-social features. While stating that it was theoretically possible to work with someone such as appellant to where she might be able to parent her children properly, it would be a time-consuming process with a very low probability of success.

In examining the four parts of the test for parental misconduct or inability, we find as to the first factor that unappealed orders entered by the juvenile court established that the children were deprived within the meaning of OCGA § 15-11-81 (b) (4) (A) (i). In the Interest of A. M. B., 219 Ga. App. 133, 134-136 (464 SE2d 253). These prior adjudications are corroborated by evidence presented during the termination hearing. Factors two and four were also well established by the evidence presented at the hearing.

Appellant’s arguments are directed to factor three, that the cause of the deprivation is likely to continue or will not likely be remedied. The juvenile court has found the absence of proper parental care and control supporting a termination of parental rights based on: “A medically verifiable deficiency of the parent’s physical, mental, or emotional health of such duration or nature as to render the parent unable to provide adequately for the physical, mental, emotional, or moral condition and needs of the child.” OCGA § 15-11-81 (b) (4) (B) (i). The resulting deprivation must be shown by clear and convincing evidence to be “likely to continue and likely to cause serious harm to the child.” (Punctuation omitted.) In the Interest of D. R. C., 198 Ga. App. 348 (401 SE2d 754); In the Interest of E. P. N., 193 Ga. App. 742 (2) (c) 748 (388 SE2d 903). While appellant argues for a more stringent standard than ‘likely to continue and likely to cause serious harm to the child” for use in cases where termination of parental rights is sought solely on the basis of mental incapacity, she cites, and we find, no authority supporting her position. The factfinding and weighing of evidence was a task for the juvenile court under the clear and convincing evidence test. There was sufficient clear and convincing evidence to establish that the deprivation was likely to continue and likely to cause serious harm to the children.

3. Additionally, appellant relies upon In the Interest of S. L. W., 221 Ga. App. 509, 511 (3) (471 SE2d 579) and In the Interest of M. R., 213 Ga. App. 460, 465 (2) (444 SE2d 866) to support the proposition that DFACS is under a statutory duty to make reasonable efforts to reunite a family for at least one year after a case plan has been formulated for family reunification. Appellant argues that a valid defense to the termination action is provided by DFACS’s failure to continue efforts for reunification for the requisite year-long period. However, this contention must fail since the underlying cases cannot be reconciled with the whole court case of In the Interest of A. M. B., 219 Ga. App. 133, 134-136, supra, which rejected the statutory construction stated in these panel cases by holding that no one-year reunification requirement exists nor can be imposed by reading OCGA § 15-11-41 (b) together with OCGA § 15-11-81. The holding in In the Interest of A. M. B., 219 Ga. App. 133, 134, supra, was reconfirmed following amendments to these statutes in In the Interest of V. S., 230 Ga. App. 26, 30 (2) (495 SE2d 142).

The statutory construction stated in In the Interest of M. R., 213 Ga. App. 460, 465 (2), supra, must be viewed as having been implicitly overruled by the subsequent and irreconcilable whole court case of In the Interest of A. M. B., 219 Ga. App. 133, 134, supra, and now In the Interest of M. R., 213 Ga. App. 460, 465 (2), supra, is explicitly overruled. In the Interest of S. L. W., 221 Ga. App. 509, 511 (3), supra, having been decided subsequent to the decision in In the Interest of A. M. B., 219 Ga. App. 133, 134, supra, was incorrect in stating that there is a statutory requirement that DFACS make reasonable efforts to reunite the family for at least a year after a family reunification plan is formulated before there can be a termination of parental rights, and In the Interest of S. L. W., 221 Ga. App. 509, 511 (3), supra, is also overruled.

Decided March 20, 1998.

Lois W. Gerstenberger, for appellant.

Thurbert E. Baker, Attorney General, William C. Joy, Senior Assistant Attorney General, Shalen A. Sgrosso, Assistant Attorney General, Robert A. Kunz, James H. Lewis, Jerry F. Pittman, for appellee.

4. The juvenile court properly determined that termination of appellant’s parental rights was in the best interest of the children. The same factors which show parental inability may also show that termination would be in the children’s best interest. In the Interest of G. K. J, 187 Ga. App. 443 (2), 444 (370 SE2d 490). Appellant’s contention that she could learn adequate parenting skills does not compel a different outcome. “[T]he decision as to a child’s future must rest on more than positive promises which are contrary to negative past fact.” (Citation and punctuation omitted.) In the Interest of D. I. W., 215 Ga. App. 644, 645 (1), 646 (451 SE2d 804).

Judgment affirmed.

Andrews, C. J, Birdsong, P. J., Pope, P. J., Beasley, Johnson, Blackburn, Smith, Ruffin and Eldridge, JJ., concur.