author: Ellington, Judge.

text:
    A00A1062.
    ATHENS-CLARKE COUNTY v. TORRES.
    (540 SE2d 225)
   Ellington, Judge.

Through her guardian, Valentina Torres sued the Unified Government of Athens-Clarke County, among other defendants, on theories of negligence and nuisance for injuries she sustained when she was struck by a car as she crossed a street in Athens. The trial court denied the unified government’s motion for judgment on the pleadings. We granted the unified government’s application for interlocutory review of that ruling. Because the trial court erred in finding the unified government was not entitled to sovereign immunity, we reverse.

A defendant’s motion for judgment on the pleadings should be granted only where the pleadings disclose with certainty that the plaintiff would not be entitled to relief under any state of provable facts. OCGA § 9-11-12 (c); Cardin v. Outdoor East, 220 Ga. App. 664, 665 (468 SE2d 31) (1996). “For the purposes of the motion for judgment on the pleadings, all well-pleaded material allegations of the opposing party’s pleadings are to be taken as true, and all allegations of the moving party which have been denied are taken as false.” (Citations and punctuation omitted.) Ford v. Whipple, 225 Ga. App. 276, 277 (483 SE2d 591) (1997).

Taking Torres’ factual averments as true, the pleadings show that on December 29, 1997, Torres was legally crossing a street in a marked crosswalk at an intersection in Athens when she was struck by a car. Before the consolidation and unification of the municipal government of Athens and the county government of Clarke County, the intersection was located within the city limits of Athens. The City of Athens installed traffic control signals at the intersection in 1978. The City of Athens maintained the intersection until the city government merged into the unified government in 1991; thereafter the unified government maintained the intersection. The signal intervals at the intersection were set so that pushing the pedestrian walk button was necessary to have the light remain green long enough for a pedestrian to safely cross all seven lanes of traffic. As designed in part by the City of Athens, the intersection’s signals were defective in that the pedestrian push button was located out of the view of pedestrians approaching from a certain direction. When Torres was struck by a car on December 29, 1997, the “Don’t Walk” pedestrian signal had burned out.

The unified government answered and moved for judgment on the pleadings on the basis that it was entitled to sovereign immunity for Torres’ claims. The trial court noted correctly that municipalities are not immune from nuisance actions. See City of Vidalia v. Brown, 237 Ga. App. 831, 835 (2) (516 SE2d 851) (1999). Based on the unified government’s charter (Ga. L. 1990, p. 3612), the trial court concluded the unified government “succeeded to the liabilities of the former municipality for the creation and maintenance of a nuisance” and denied the unified government’s motion for judgment on the pleadings.

1. Torres’ argument that the unified government waived sovereign immunity by operation of OCGA § 36-33-1 because it maintained a liability insurance policy at the time of the accident is without merit. We note initially: “Sovereign immunity is not an affirmative defense that must be established by the party seeking its protection. Instead, immunity from suit is a privilege and the waiver must be established by the party seeking to benefit from the waiver.” (Citations and punctuation omitted.) Fulton-DeKalb Hosp. Auth. v. Walker, 216 Ga. App. 786, 788 (1) (456 SE2d 97) (1995). OCGA § 36-33-1 by its terms applies to municipal corporations, not to counties.

Torres’ argument that the unified government is to be considered a municipality is without merit. The charter creating the unified city/ county government, Ga. L. 1990, pp. 3612, 3614, § 8-103, expressly provided that its tort and nuisance liability would follow the law and rules of tort liability applicable to counties in Georgia. Swan v. Johnson, 219 Ga. App. 450, 452 (3) (465 SE2d 684) (1995). See also Gilbert v. Richardson, 264 Ga. 744, 748-749 (4) (452 SE2d 476) (1994) (discussing application of OCGA § 33-24-51).

2. The unified government contends Torres’ claims were barred by sovereign immunity. We agree. As discussed in Division 1, supra, the charter creating the unified government provided that its tort and nuisance liability would follow the law of tort liability applicable to counties. A 1991 amendment to our constitution provided: “The sovereign immunity of the state and its departments and agencies can only be waived by an Act of the General Assembly which specifically provides that sovereign immunity is thereby waived and the extent of such waiver.” Ga. Const. of 1983, Art. I, Sec. II, Par. IX (e). The Supreme Court of Georgia held that sovereign immunity extends to counties under the 1991 constitutional amendment. Gilbert v. Richardson, 264 Ga. at 746-747 (2). See also OCGA § 36-1-4 (“[a] county is not liable to suit for any cause of action unless made so by statute”); Kordares v. Gwinnett County, 220 Ga. App. 848, 850 (470 SE2d 479) (1996) (a “[c]ounty is not liable for nuisance claims arising from personal injuries or wrongful death”). We have held that a claim against the unified government was barred by sovereign immunity. Swan v. Johnson, 219 Ga. App. at 452 (3) (wrongful death).

Torres contends the unified government is liable, despite § 8-103 of its charter and the sovereign immunity enjoyed by counties, because the city maintained a nuisance that existed prior to creation of the unified government and continued until Torres’ accident. We do not accept Torres’ position that liability attachéd to Athens as a municipality “for the creation and maintenance of a nuisance” before consolidation in 1991 which resulted in her injuries in 1997. However, even assuming municipal liability for the nuisance that caused Torres’ injuries existed before consolidation and the unified government succeeded to that liability, the General Assembly could provide the protection of sovereign immunity so long as suit had not yet been filed. Donaldson v. Dept. of Transp., 262 Ga. 49, 53 (3) (414 SE2d 638) (1992) (the State may withdraw its waiver of sovereign immunity at any time before a citizen acts in reliance on that waiver by filing suit). By providing in the charter that the tort and nuisance liability of the unified government would follow the law and rules of tort liability applicable to counties, the State withdrew any pre-existing waiver of sovereign immunity associated with municipality liabilities of the former City of Athens except as to pending suits. Id.

Decided October 3, 2000.

McLeod, Benton, Begnaud & Marshall, Andrew H. Marshall, for appellant.

Blasingame, Burch, Garrard, Bryant & Ashley, E. Davison Burch, John F. Nebí, L. Katherine Adams, for appellee.

Because the unified government was entitled to sovereign immunity, the trial court erred as a matter of law in denying the motion for judgment on the pleadings.

Judgment reversed.

Andrews, P. J., and Ruffin, J., concur.


source: Caselaw Access Project

author: Blackburn, Presiding Judge.

license: Public Domain

text:
    A00A1104.
    GIBSON et al. v. HUFFMAN et al.
    (540 SE2d 222)
   Blackburn, Presiding Judge.

In this dispute between landowners, Mrs. George W. Gibson, Lucile Davis and William A. Gibson (defendants) appeal from the entry of an injunction in favor of W. M. Huffman and Stephen A. Stutts (plaintiffs) enforcing restrictive covenants which limit the use of defendants’ property to agriculture and recreation and enjoining its subdivision and development. Defendants contend that the trial court erred by failing to find that: (1) they had effected a release of the restrictive covenants; (2) the deed restrictions violated the rule against perpetuities; (3) plaintiffs were guilty of laches; (4) plaintiff Stutts was barred from seeking the injunction by the equitable doctrine of unclean hands; and (5) plaintiff Huffman had no standing to enforce the covenants. For reasons which follow, we affirm.

A trial court’s exercise of discretion in granting an injunction will not be interfered with, absent manifest abuse, unless the question decided by the trial court is one of law. Slaven v. City of Buford; Lesesne v. Mast Property Mgmt. The record shows that certain grantors, three joint tenants, conveyed the property to defendants subject to deed restrictions which limited the use of the property to farming: “Said land is also sold subject to the following restrictions: Said land shall not be subdivided nor used for any purpose except farming.” The deed also provided for a method of changing the allowed use of the property, under certain conditions:

If at any time in the future [defendants] wish to sell or change the use of the within property, [the original grantors], or any of the [residential] owners, shall have the right to purchase or repurchase the above described property from [defendants]. If [the original grantors] or the [residential owners] fail, decline or refuse to buy, the said property may be used for agricultural or recreational purposes only.

Plaintiffs are residential property owners referenced in the deed who trace their line of title to the same grantors.

Defendants planned to subdivide and develop their agricultural property for residential purposes. They obtained deed restriction releases from the original grantors or their heirs and, as provided in the deed, offered to sell their property to the designated residential property owners, including plaintiffs, none of whom pursued the offer. Plaintiff Huffman told defendants that he did not agree to the proposed change in use for defendants’ property. Nonetheless, defendants graded their property and obtained a building permit. Upon learning that defendants had obtained a building permit, plaintiffs sued to enforce the restrictive covenants and enjoin defendants from developing their property. The Superior Court of Floyd County entered a judgment enforcing the restrictive covenants restricting the use of defendants’ property to agriculture and recreation.

1. Defendants contend that the trial court erroneously found that they had not effected a release of the restrictive covenants with respect to plaintiffs. Defendants argue that, to lift the restrictive covenants, the deed only required that they obtain the release of the three original grantors, or their heirs, and offer to sell the property to the residential owners. Defendants contend that they did not have to obtain releases from the residential owners also.

The trial court did not err.

“The interpretation of the language in a deed is generally a question of law unless it is so ambiguous that the ordinary rules of construction cannot resolve the ambiguity. (Cit.) The cardinal rule of construction is to ascertain the intention of the parties.” Giddens v. Barrentine, 264 Ga. 510, 511 (1) (448 SE2d 441) [(1994)].

Young v. Faulkner. The deed at issue is not ambiguous. Pursuant to the deed, if the original grantors and other residential owners do not buy the property when offered, its allowable uses can only change from “farming” to “agricultural or recreational.” The deed expressly states so: “If [the original grantors] or the [residential owners] fail, decline or refuse to buy, the said property may be used for agricultural or recreational purposes only.” Defendants did not obtain a release from the restrictive covenants.

2. Defendants incorrectly contend the deed restrictions are a restraint on the alienation of property or transferability of realty with no time limit and, therefore, are void as a violation of the rule against perpetuities. To the contrary, the rule against perpetuities does not pertain to covenants restricting the land to certain uses. McKinnon v. Neugent; Reeves v. Comfort.

3. Defendants erroneously contend that plaintiffs are guilty of laches because defendants spent over $23,000 to grade their property before this litigation began. “The principle of laches . . .is based on a complaining party’s failure to voice any objection while observing the offending party expend large sums of money building a permanent structure in violation of restrictive covenants. [Cits.]” (Emphasis supplied.) King v. Baker. This principle stands in contrast to plaintiffs’ actions here. After learning of defendants’ development plans, plaintiff Huffman told defendants that he opposed the proposed change in use. Although defendants graded the property prior to litigation, grading alone did not violate the restrictive covenants. Plaintiffs filed for an injunction shortly after defendants obtained a residential building permit. The trial court properly found that plaintiffs were not guilty of laches.

4. Defendants argue that, under the equitable principle of “unclean hands,” see Smith Dev. v. Flood (“[t]hose who seek equity must do equity”), Stutts cannot claim the benefit of the covenants in defendants’ deed because he is in violation of restrictive covenants applicable to his own residential property. The unclean hands doctrine bars a litigant from seeking equitable relief if the “misconduct relates directly to the transaction concerning which relief is sought.” Sparks v. Sparks. In this case, the restrictions in Stutts’ deed were made for the benefit of the other residential property owners only and not for the benefit of defendants’ agricultural property. Since the covenants in Stutts’ deed do not relate to the enforcement of the covenants in defendants’ deed, Stutts is not barred from bringing this suit.

5. Defendants raise as error the trial court’s denial of their motion to dismiss plaintiff Huffman as a party, contending that Huffman does not have standing to enforce the restrictive covenants because he acquired his residential property from the common grantors two years before they acquired the agricultural property with the restrictive covenants.

Decided October 3, 2000.

Frank H. Jones, for appellants.

Brinson, Askew, Berry, Seigler, Richardson & Davis, C. King Askew, Mark M. J. Webb, for appellees.

The restrictive covenants at issue give the right to prohibit a change in the use of defendants’ property to “any of the owners of any of the other property as shown on plat recorded in Plat Book 4, page 99 in the office of the Clerk of the Superior Court of Floyd County, Georgia”; therefore, the covenant runs with the land. Huffman’s property lies within this plat, so it is an express beneficiary of the restrictive covenants. “Where a grantor sells his property with a restriction benefiting his neighbors, the neighbor, as the beneficiary, may enforce it.” Muldawer v. Stribling. Accordingly, Huffman has standing to enforce the restrictive covenants against defendants.

Judgment affirmed.

Eldridge and Barnes, JJ, concur.

        Slaven v. City of Buford, 257 Ga. 100 (355 SE2d 663) (1987).

        Lesesne v. Mast Property Mgmt., 251 Ga. 550, 551 (307 SE2d 661) (1983).

         Young v. Faulkner, 217 Ga. App. 321 (2) (457 SE2d 584) (1995).

        McKinnon v. Neugent, 225 Ga. 215, 216-217 (1) (167 SE2d 593) (1969).

        Reeves v. Comfort, 172 Ga. 331, 334 (157 SE 629) (1931).

        King v. Baker, 214 Ga. App. 229, 232 (3) (447 SE2d 129) (1994).

        Smith Dev. v. Flood, 198 Ga. App. 817, 819 (2) (403 SE2d 249) (1991).

        Sparks v. Sparks, 256 Ga. 788, 789 (2) (353 SE2d 508) (1987).

         Muldawer v. Stribling, 243 Ga. 673, 676 (256 SE2d 357) (1979).


text:
    A00A1568.
    A00A1569.
    DEPARTMENT OF TRANSPORTATION v. COX. DEPARTMENT OF TRANSPORTATION v. CAMERON.
    (540 SE2d 218)
   Ellington, Judge.

We granted the Georgia Department of Transportation (“DOT”) an interlocutory appeal in both of these cases to review whether the trial court erred in denying its motions for summary judgment. On February 15, 1996, Elizabeth Cox, the driver of an automobile, and her passenger, Michael Cameron, were injured when they were struck by a driver who failed to yield while turning left into a commercial driveway off Highway 34 in Newnan. Cox and Cameron argue that the configuration of the four-lane, divided highway at the commercial driveway contributed to the accident. They present identical negligent road design and permitting claims which DOT argues are barred by statutory exceptions to the Georgia Tort Claims Act, OCGA § 50-21-20 et seq. Because these appeals arise from the same incident and involve the same facts and principles of law, we consolidate them. For the reasons which follow, we find that DOT is immune from Cox’s and Cameron’s claims and is entitled to summary judgment. Consequently, we must reverse the trial court’s orders.

In reviewing the grant or denial of summary judgment, we apply a de novo standard of review. Goring v. Martinez, 224 Ga. App. 137, 138 (2) (479 SE2d 432) (1996). Further,

[a] movant/defendant must demonstrate by reference to evidence in the record that there is an absence of evidence to support at least one essential element of the non-moving party’s case. A movant/defendant may discharge his burden by pointing out by reference to the affidavits, depositions, and other documents in the record that there is an absence of evidence to support the non-moving party’s case. If the moving party discharges this burden, the non-moving party cannot rest on its pleadings, but rather, must point to specific evidence giving rise to a triable issue. Summary judgment is appropriate when the court, viewing all the facts and reasonable inferences flowing therefrom in a light most favorable to the non-moving party, concludes that the evidence does not create a triable issue as to each element of the case.

(Citations and punctuation omitted.) Daniels v. Dept. of Transp., 222 Ga. App. 237 (474 SE2d 26) (1996) (physical precedent only). As we recently reiterated, “[sovereign immunity is a threshold issue.” Murray v. Dept. of Transp., 240 Ga. App. 285 (523 SE2d 367) (1999). Therefore, if DOT can meet its burden of showing that it is exempt from liability on each of Cox’s and Cameron’s claims, then DOT is entitled to summary judgment as a matter of law. Id.

Cox and Cameron make the following claims: (1) DOT should have reconfigured the roadway to eliminate allegedly dangerous and defective conditions at the driveway based upon the number of accidents that occurred there after the shopping center and driveway were built; (2) DOT delayed issuing a permit for a traffic signal in front of the shopping center; and (3) DOT was negligent in issuing a permit to build the commercial driveway into the shopping center. DOT contends that it has no liability for losses resulting from these claims by virtue of the statutory exceptions to the State’s waiver of sovereign immunity found in OCGA § 50-21-24 (9) (permit claims) and (10) (negligent design claims). We agree.

With respect to Cox’s and Cameron’s negligent design claims, Georgia law provides that the State has no liability for losses resulting from

[t]he plan or design for construction of or improvements to highways, roads, streets, bridges, or other public works where such plan or design is prepared in substantial compliance with generally accepted engineering or design standards in effect at the time of preparation of the plan or design.

OCGA § 50-21-24 (10). Not only does this provision exempt DOT from liability for highway design deficiencies where the highway was initially designed in substantial compliance with existing design standards, it exempts DOT from liability “for its failure to upgrade a highway to meet current design standards.” Daniels, 222 Ga. App. at 239 (2). As we explained:

In determining the extent of the DOT’s liability under the Georgia Tort Claims Act, we must construe its provisions in a manner that will uphold it in every part. Under this rule of construction, we find that if the DOT is exempt from liability for its initial design of a highway under the Georgia Tort Claims Act, it would make little sense to permit liability for failing to change that initial design. Allowing liability in such cases would effectively eliminate the protection provided the DOT under OCGA § 50-21-24 (10).

(Citation omitted.) Id.

In the instant cases, DOT presented the following unrebutted evidence: The roadway, including the median opening where the accident occurred, was designed in 1969. From 1969 until the time of the accident, the roadway and median remained unchanged. DOT’s expert opined that the design of the roadway and median substantially complied with generally accepted engineering and design standards in effect in 1969. Neither Cox nor Cameron presented expert testimony on whether the roadway failed to substantially comply with the engineering standards then applicable. In fact, their expert, who did not know when the roadway was built, agreed that the roadway likely complied with the standards in effect when it was built. Instead, the expert opined that changed conditions demanded road improvements, including offset turn lanes and a traffic signal. This claim, as we explained above, must fail. Daniels, 222 Ga. App. at 239 (2).

Cox and Cameron also argue that the design of the roadway and median opening should be measured against 1992, rather than 1969, design standards for two reasons: DOT resurfaced the road in 1992, and a DOT district engineer proposed making improvements to the roadway median opening in 1992. We find this reasoning flawed. As a DOT engineer explained, roadway resurfacing, which OCGA § 32-1-3 (15) categorizes as “maintenance,” does not usually involve a change to the geometric layout of the roadway. During the resurfacing, DOT made no changes to the road or median configuration. Also, when DOT resurfaces a road, it is not required to address roadway design issues outside the scope of the resurfacing project. See Murray, 240 Ga. App. at 287. Since there is no evidence in this case that DOT altered the initial roadway design in any way since the road was built, 1969 design standards apply.

Further, 1992 engineering standards are not applicable simply because a DOT engineer proposed redesigning the roadway in 1992 or because plans were shortly thereafter drafted. For reasons similar to those we articulated in Daniels, we find that if the DOT is exempt from liability for its initial design of a highway under the Georgia Tort Claims Act, it would make little sense to impose liability whenever a DOT engineer informally suggests or formally plans to improve that design. Allowing liability in such cases would effectively eliminate the protection provided the DOT under OCGA § 50-21-24 (10). Moreover, vitiating the immunity provided by this Code section any time a DOT engineer proposes roadway improvements could have a chilling effect on those charged with the duty to improve our highway system. Consequently, we reject Cox’s and Cameron’s argument that the roadway’s design should have been measured against 1992 standards.

We also find that DOT is exempt from liability for any losses attributed to either its issuing a permit to the shopping center owner to build a commercial driveway across from the median opening where the accident occurred or to the alleged delay in issuing the City of Newnan a permit to install a traffic signal at that driveway. OCGA § 50-21-24 (9) provides that the state has no liability for losses resulting from its

[[licensing powers or functions, including, but not limited to, the issuance, denial, suspension, or revocation of or the failure or refusal to issue, deny, suspend, or revoke any permit, license, certificate, approval, order, or similar authorization.

In a case analogous to this one, we held that DOT was exempt from liability under OCGA § 50-21-24 (9) for issuing a permit for the construction of a decorative brick wall. Dept. of Transp. v. Bishop, 216 Ga. App. 57 (1) (453 SE2d 478) (1995). The wall in that case allegedly contributed to an accident by obstructing the driver’s view of oncoming traffic. Id. In Bishop, we held as follows:

Decided October 3, 2000.

Thurhert E. Baker, Attorney General, Kathleen M. Pacious, Deputy Attorney General, Loretta L. Pinkston, Senior Assistant Attorney General, David B. Fife, Assistant Attorney General, Susan J. Levy, for appellant.

Kam & Ebersbach, Michael G. Kam, William J. Stemberger, Jr., for appellees.

The state is only liable in tort actions within the limitations of the Georgia Tort Claims Act. OCGA § 50-21-21 (a). Since the . . . lawsuit arises from the state’s approval of a permit for the construction of the decorative wall, and this claim is specifically excluded by the Act, the DOT was entitled to summary judgment as a matter of law.

Id. at 58 (1). The rationale in Bishop applies with equal force to the facts of this case. DOT is entitled to summary judgment on those claims arising out of the State’s issuance of the commercial driveway construction permit and arising out of the State’s alleged refusal to timely issue a permit for a traffic signal.

Because DOT was exempt from liability for Cox’s and Cameron’s claims, the trial court erred in denying its motions for summary judgment.

Judgments reversed.

Andrews, P. J., and Ruffin, J., concur.

       Although there was some construction underway at the shopping center at the time of the accident, there is no evidence that DOT was involved in that work or that the work was in the roadway. Rather, the record shows that the shopping center owner was reconfiguring its private drive. DOT did not begin construction on the roadway and median opening until March 29, 1996, a month after the accident.


author: Mikell, Judge.

text:
    A00A1658, A00A1659.
    DELTA AIR LINES, INC. v. CLAYTON COUNTY BOARD OF TAX ASSESSORS; and vice versa.
    (539 SE2d 905)
   Mikell, Judge.

This appeal arises from an ad valorem property tax dispute between Delta Air Lines, Inc. (“Delta”) and the Clayton County Board of Tax Assessors (“Board”). After Delta filed its 1997 Business Personal Property Report, the Board returned an assessment notice (1) denying Delta’s claim for an exemption (commonly referred to as the “freeport” exemption) from ad valorem taxation for certain inventory, and (2) disallowing Delta’s valuation of certain airplane parts. Delta unsuccessfully appealed the assessment to the Clayton County Board of Equalization and then appealed to the superior court. In superior court, the Board moved for summary judgment on all issues, while Delta moved for partial summary judgment on the question of whether it was entitled to the freeport exemption. In Case No. A00A1658, Delta appeals the grant of summary judgment to the Board on the freeport issue. In Case No. A00A1659, the Board appeals the trial court’s denial of its motion for summary judgment on the valuation dispute. For the reasons set forth below, we find that the freeport exemption is available for certain of Delta’s aircraft engines and parts and therefore reverse the trial court’s grant of summary judgment to the Board on the question of whether Delta was entitled to claim the exemption. We also find that Delta presented triable issues of fact regarding the valuation of its personal property, and we affirm that portion of the trial court’s order denying the Board’s motion for summary judgment.

Case No. A00A1658

We review a trial court’s grant of summary judgment de novo, and we view the evidence in the light most favorable to the nonmovant. On de novo review, we “owe no deference to the trial court’s conclusions of law. Instead, we are free to apply anew the legal principles to the facts.” Disposition of this appeal necessitates our interpretation of the statutes authorizing the freeport exemption.

It is a cardinal rule . . . that . . . exemptions [from taxation] should be strictly construed in favor of the public, and that nothing passes by implication. On the other hand, if the language of a statute is plain and susceptible of but one natural and reasonable construction, the court has no authority to place a different construction upon it, but must construe it according to its terms.

The Georgia Constitution authorizes the governing authority of any county or municipality, subject to voter approval, to exempt from ad valorem taxation “inventories of goods in the process of manufacture or production, and inventories of finished goods.” The state legislature implemented this “freeport” exemption through enactment of OCGA §§ 48-5-48.1 and 48-5-48.2. A voter referendum approving the freeport exemption in Clayton County was held on September 27, 1979. The county board of commissioners implemented the exemption. for each of the three categories authorized by statute. These categories can be generally described as including: (1) inventory of goods in the process of manufacture or production (“Category 1”), (2) inventory of finished goods in the hands of the original manufacturer (“Category 2”), and (3) inventory of finished goods held for shipment outside the state (“Category 3”).

Delta claimed a freeport exemption in its 1997 business personal property tax return for: (1) aircraft engines and engine parts in the process of remanufacture at its Technical Operations Center (“TOC”) in Clayton County; (2) parts manufactured at the TOC from raw materials; and (3) parts destined for shipment to a location outside this state. The Board denied the claims.

Technical Operations Center

Delta overhauls airplane engines at the TOC. Work is performed only on engines that have been separated from their aircraft. Delta categorizes the work done on the engines as either “light” or “heavy” maintenance. An engine is subject to heavy maintenance if it contains components that have reached their operational time limit. An engine can also receive heavy maintenance if it is removed for damage or nonperformance, although engines removed for these reasons are most often classified as receiving “light” maintenance. Heavy maintenance involves the complete disassembly of the engine, the piece-by-piece inspection of every component, and the restoration of each component to its original form and specifications. Engines that fall within the light maintenance category are those that do not require a complete overhaul, although the work involved may include a complete restoration of an engine module. Light maintenance may require as little as two to three days or as many as twenty-five to thirty-five days to complete. Heavy maintenance may require from 45 to 70 days to complete, depending on the type of engine. Costs per engine average $400,000 for light maintenance and $600,000 for heavy maintenance. Delta estimates it would incur approximately twice the cost for outsourcing its engine overhauls.

Delta also manufactures aircraft parts from raw materials at the TOC. The types of parts made range from routine to specialized pieces based on blueprint drawings. Delta stores airplane parts in a warehouse and ships them to its airport stations in other states as needed.

Category 1 Freeport Exemption

1. Delta argues that aircraft engines and parts which are being overhauled at the TOC qualify for the Category 1 freeport exemption under OCGA § 48-5-48.2 (b) (1).

The exemption applies to: “(1) Inventory of goods in the process of manufacture or production which shall include all partly finished goods and raw materials held for direct use or consumption in the ordinary course of the taxpayer’s manufacturing or production business in this state. . . .” In order to qualify for the exemption, the goods must be “substantially modified, altered, or changed.”

The statute was amended effective January 1, 1997, to add the following two sentences: “[R]emanufacture of aircraft engines or aircraft engine parts or components shall constitute manufacturing operations in this state. Remanufacture . . . means the substantial overhauling or rebuilding of aircraft engines or aircraft engine parts or components.”

“Substantial overhauling,” in turn, “means the disassembling, repairing, renovating, reassembling, reconstructing, inspecting, or testing, thereby restoring the aircraft engine or aircraft engine parts or components to their original state or an upgraded state.”

(a) Engines in the process of remanufacture qualify for the Category 1 exemption. The record contains uncontroverted evidence that engines in the process of “heavy” maintenance satisfy the statutory requirements for a Category 1 exemption. Under the revised statute, remanufacturing of aircraft engines is defined as the substantial overhauling or rebuilding of aircraft engines. The legislature obviously intended that aircraft engines in the process of remanufacture would qualify for the freeport exemption. Even disregarding the language specifically addressing aircraft engine remanufacture, we find that the process of heavy maintenance described by uncontradicted testimony, constituting the disassembly of the engine, the replacement of a number of expendable parts, the machine working of other parts to specification, its reassembly and testing over an approximate six- to eight-week period, is “substantial.”

Whether engines in the process of “light” maintenance undergo substantial overhauling or rebuilding is less clear. Delta’s director of engine maintenance testified that some light maintenance work required only a few days to complete, while other “light” maintenance work required several weeks, and consisted of the breakdown and refurbishing of one or more, but not all, engine modules. Delta claimed the Category 1 freeport exemption for all engines undergoing heavy maintenance as well as all large engines undergoing light maintenance. Delta did not claim the exemption for small engines undergoing light maintenance. The apparent reason for the division was that work on the larger engines was more costly. While we agree that cost is a factor in determining whether substantial work was performed on an engine, the actual nature of the work performed on the engine would provide the most probative evidence of “substantial overhauling or rebuilding.” Light maintenance, unlike heavy maintenance, does not by its nature constitute a substantial modification, alteration, or change to an engine. The record indicates that light maintenance varies from what could best be characterized as a repair lasting several days to substantial and time-consuming rebuilding over a period of several weeks. Whether the engines at the TOC undergoing “light” maintenance were undergoing “substantial overhauling or rebuilding” is unclear from the record. Accordingly, we hold that this issue merits submission to a jury.

The Board has raised a number of issues which they claim preclude the availability of the Category 1 freeport exemption to Delta. Although we discuss each of the Board’s contentions in some detail below, we find none have merit.

(b) Engines in the process of remanufacture constitute “inventory” The Board correctly points out that the “freeport” exemption, also known as the “tangible personal property inventory exemption,” applies only to inventory. The Board argues that because the engines at issue are destined for internal reuse and not for sale, they do not constitute “inventor/’ for purposes of the freeport exemption. To support this position, the Board refers us to accounting standards which define “inventor/’ as personal property (1) held for sale in the ordinary course of business, (2) in the process of production for such sale, or (3) to be consumed in the production of goods or services to be available for sale. Delta urges this Court to apply a more general definition of inventory, which includes “work in progress or materials used or consumed in a business,” as well as “goods held for sale.”

In construing a legislative act, a court must first look to the literal meaning of the act. If the language is plain and does not lead to any absurd or impractical consequences, the court simply construes it according to its terms and conducts no further inquiry. . . .

We are persuaded that “inventory,” for purposes of OCGA § 48-5-48.2, should not be read as narrowly as the Board insists. A “plain language” definition includes simply “a quantity of goods or materials on hand.” The more precise statutory definition of “inventory,” which is contained in the commercial code, provides:

Goods are ... (4) “Inventory’ if they are held by a person who holds them for sale or lease or to be furnished under contracts of service or if he has so furnished them, or if they are raw materials, work in progress, or materials used or consumed in a business. Inventory of a person is not to be classified as his equipment.

The engines claimed by Delta under the Category 1 exemption qualify as works in progress. The finished goods claimed by Delta under the Category 2 and Category 3 exemptions are parts consumed in its business operations. Therefore, the property listed by Delta on its 1997 Business Personal Property Report is “inventory’ for purposes of the freeport exemption.

(c) The aircraft engines were substantially modified in the remanufacturing process. The Category 1 exemption applies only to “tangible personal property which is substantially modified, altered, or changed in the ordinary course of the taxpayer’s manufacturing, processing, or production operations in this state.” The Board claims that Delta’s overhauled engines are not substantially modified, altered, or changed at the TOC because they enter the TOC as aircraft engines and emerge from the TOC as aircraft engines. We find no merit in this argument. As discussed in Division 1 (a), supra, the record indicates that the process of substantial overhauling involves the alteration or replacement of all or a significant portion of the internal components of an engine. The process physically changes the engine, as well as changing the function of the engine so it is again qualified to serve on an aircraft. Contrary to the Board’s argument, this process differs dramatically from that used to package cookies, thus distinguishing this case from Murray Bakery Products v. Bd. of Tax Assessors. In Murray Bakery Products, the Supreme Court held that the mere assembling of packaging materials purchased by a cookie manufacturer did not substantially change those materials, so that they did not qualify for the freeport exemption.

(d) Delta’s business involves both transportation and manufacture. The statute restricts the Category 1 exemption to goods in the taxpayer’s “manufacturing, processing, or production operations in this state.” The Board argues that the freeport exemption applies only to property produced by a manufacturing business, and that Delta is a transportation company. The fact that Delta is in the transportation business is not fatal to Delta’s claim for a Category 1 exemption. The record indicates that Delta functions as a manufacturer of aircraft parts and a remanufacturer of aircraft engines in the regular course of its business, and that those operations are located in this state.

(e) Voters were not required to expressly approve the inclusion of aircraft engine remanufacturing within the Category 1 exemption. The Board claims that because the voters of Clayton County did not approve the freeport exemption after the amendment addressing the remanufacture of airplane engines became effective, the Category 1 exemption does not apply to such remanufacture. The Board’s position contemplates that county voters must hold a referendum to approve every amendment affecting the freeport tax exemption. Clearly, that is not required. The voters approve the freeport tax exemption, but the Georgia Constitution delegates the details of implementing the exemption to the legislature.

(f) Engines lying idle in the TOC may nevertheless be in the process of remanufacture. It is apparent from the record that the engines were in various stages of work, and that physical work had not begun on each of them. The Board would deny the Category 1 exemption to those engines lying idle in the TOC. However, as long as an engine enters the process of remanufacture, whether it be in the diagnostic stage or awaiting an open bin for work to begin, the extent of an engine’s progress toward completion of the process need not be considered. The engines are “works in progress” under the statute, and so the statutory consideration is whether they are “in progress” and not at what stage of progress.

(g) The Board’s claim that the freeport tax exemption is unconstitutional is not supported by argument. Finally, the Board claims that the freeport exemption is unconstitutional. This claim is not supported by argument, and we will not consider it.

Accordingly, we hold that the trial court erred in granting summary judgment to the Board on Delta’s claim for the Category 1 free-port exemption. We also find the trial court erred by failing to grant summary judgment to Delta on the issue of whether engines undergoing “heavy” maintenance qualified for a Category 1 exemption. Finally, we hold that a jury issue remains with respect to those engines undergoing “light” maintenance.

Category 2 Freeport Exemption

2. Delta next contends that other aircraft parts manufactured from raw materials at the TOC qualify for the freeport exemption under OCGA § 48-5-48.2 (b) (2), which exempts “[inventory of finished goods manufactured or produced within this state in the ordinary course of the taxpayer’s manufacturing or production business. . . .” Finding that genuine issues of material fact remain, we reverse the grant of summary judgment to the Board on this issue.

(a) Delta satisfied the freeport application requirements for Category 2. The Board claims that Delta’s application for the Category 2 exemption was incomplete because it did not contain a list of the specific parts for which the exemption was claimed. The Board points out that OCGA § 48-5-48.1 (b) (2) requires the taxpayer to furnish a schedule of the inventory of finished goods along with the application and provides that failure to file the application and schedule properly constitutes a waiver of the exemption.

Delta completed an official freeport application form according to the form’s specifications. The form only required that Delta “list total value of [Category 2] eligible inventory,” which Delta provided on an attached schedule. When the Board asked for additional information as part of discovery, the record indicates Delta offered microfiche records. “All returns of tangible personal property shall be made pursuant to the form . . . adopted by the commissioner.” It strains traditional concepts of fair play and justice to permit a taxing authority to “punish” the taxpayer who supplies information in the format required by the taxing authority. We decline to do so here. We find that Delta properly completed the 1997 application for a Category 2 freeport exemption.

(b) Whether the Category 2 property was less than 12 months old is a question of fact. The Category 2 exemption applies only to parts held less than a year after they are manufactured. Delta presented evidence that the Category 2 property was less than 12 months old. The record indicates that Delta considered the time requirement in completing the application, and that its inventory of manufactured parts turns over from two to six times per year, depending on the part. This is evidence that the 12-month time limit was satisfied. However, the Board presented evidence that Delta held the property for more than 12 months. The record indicates that Delta depreciates the parts, which implies that some are held for longer than one year.

Accordingly, we hold that the trial court erred in ruling as a matter of law that Delta could not claim the Category 2 exemption for aircraft parts manufactured from raw materials. The conflicting evidence warrants a jury trial on this issue.

Category 3 Freeport Exemption

3. Delta contends that aircraft parts stored at the TOC on January 1, 1997, and destined for shipment to airport stations outside Georgia, qualify for the freeport exemption under OCGA § 48-5-48.2 (b) (3), which exempts:

Inventory of finished goods which, on January 1, are stored in a warehouse, dock, or wharf, whether public or private, and which are destined for shipment to a final destination outside this state. . . . The exemption provided for in this paragraph shall be for a period not exceeding 12 months from the date such property is stored in this state. Such period shall be determined based on application of a first-in, first-out method of accounting for the inventory. The official books and records of the warehouse, dock, or wharf where such property is being stored shall contain a full, true, and accurate inventory of all such property, including the date of the receipt of the property, the date of the withdrawal of the property, the point of origin of the property, and the point of final destination of the same, if known. . . .

Under OCGA § 48-5-48.2 (a) (1),

“Destined for shipment to a final destination outside this state” includes that portion or percentage of an inventory of finished goods which the taxpayer can establish, through a historical sales or shipment analysis, either of which utilizes information from the preceding calendar year, or other reasonable, documented method, is reasonably anticipated to be shipped to a final destination outside this state.

(a) Delta has presented evidence that the goods qualify for the Category 3 exemption. The record reflects that Delta stores aircraft parts at the TOC that are destined for shipment outside Georgia. Some of the parts are shipped to Delta airport stations for use by Delta, while others are sold as surplus on the secondary market.

(b) Parts need not be held for resale to qualify as finished goods. The Board argues that the goods do not qualify as “finished goods” because they are not held for resale. However, the statute imposes no such requirement, and, contrary to the Board’s assertion, Apollo Travel Svcs. v. Gwinnett County Bd. of Tax Assessors does not imply one. In Apollo Travel Svcs. we held that, under the facts of that case, computers which are leased and are being held in inventory for eventual shipment out of the state are not eligible for a freeport exemption because OCGA § 48-5-48.2 (a) (2) excludes from the definition of “finished goods” items which are the “stock in trade of a retailer.” A further refinement in the statute’s fine print specifies that goods stored in or near a retail business in this state shall not be considered the “stock in trade of a retailer” when it can be established that they are to be shipped outside the state for resale. The taxpayer in Apollo was a retailer, and it could not fit its inventory of finished goods within the resale exemption to the “stock in trade of a retailer” exclusion from the definition of “finished goods.” In the case at bar, Delta is not a retailer. For it to obtain the freeport exemption it does not have to prove that the airplane parts are intended for resale, and the Apollo precedent is not apposite.

(c) Delta provided evidence that it satisfied the 12-month test. The Board claims that Delta has failed to produce any evidence showing that the goods claimed for the Category 3 exemption have been held in this state for less than 12 months. They maintain that any evidence that Delta has presented with regard to the “turnover” rate of inventory is inapplicable because the statutory determination of inventory age is determined on a “first-in, first-out method of accounting.” Delta has presented evidence indicating that no inventory is on hand longer than 12 months. This is adequate to satisfy the statute regardless of accounting methodology. The Board, however, points to evidence that some parts remain in stock for over 12 months. Absent a legal reason for directing a verdict for the Board, a jury must determine the extent Delta is entitled to claim the Category 3 exemption.

(d) Goods are shipped to a final destination even if they are returned to Delta at the end of their useful lives. The Board claims that Delta does not ship parts to a “final” destination because the parts are destined to return to the TOC. Nevertheless, the parts are apparently shipped with the intention that they will be used for the full period of their useful lives, and not for a prearranged time, as with a leased product. The mere possibility that a part will be returned to the TOC for remanufacture, as opposed to being discarded, destroyed, or sold, is too remote to find that a part shipped for use at an out-of-state airport operations center is not shipped to its final destination.

As the evidence is in conflict, resolution of this issue belongs to the jury, and the trial court erred in granting summary judgment to the Board.

Case No. A00A1659

The Board cross-appeals from the denial of its motion for summary judgment. The Board valued the personal property returned by Delta at original cost, while Delta valued the property at net book value.

4. Valuation is a jury issue. For ad valorem tax purposes “[a]ll property shall be returned for taxation at its fair market value. . . .” OCGA § 48-5-6. Determination of the fair market value of the property involved is generally a question for the trier of fact.

5. Delta provided the information required by the business personal property return. The Board maintains that Delta cannot dispute the Board’s valuation because Delta failed to include the description and quantity of all of its personal property on its return. Examination of “Section J — Inventory” of the Business Personal Property Report shows that the Board asks for cost amounts and not a breakdown of inventory by part. Delta estimates that such a schedule would be longer than 14,000 pages. As discussed in Division 6, infra, the heart of this dispute is the method of valuation, not whether Delta has failed to report all of its personal property.

6. Delta has produced admissible evidence on the valuation issue. The Board argues that it is entitled to summary judgment on this issue because no admissible evidence exists as to the valuation of Delta’s personal property other than the original cost reported on the return form. Delta, on the other hand, returned a taxable value calculated on “net book value,” which Delta maintains is an amount greater than fair market value. Of course, the correct valuation of the property is fair market value. Delta maintains that “net book value” is evidence of fair market value and is, in the context of airplane parts, greater than fair market value. The Board attacks the admissibility of the opinion evidence presented by Delta. Perhaps a reasoned valuation of each of the 220,000 different types of parts would be preferable, but Delta has shown probative evidence supporting its property valuation by presenting admissible opinion testimony that the fair market value of its airplane parts inventory is actually less than the value it listed on the tax return. Therefore, the trial court did not err when it denied summary judgment to the Board on the issue of the valuation of Delta’s personal property.

Decided October 3, 2000

Alston & Bird, John L. Coalson, Jr., Timothy J. Peaden, Mary T. Benton, Michael Keen, for appellant.

Hancock & Echols, Jack R. Hancock, Brian R. Dempsey, for appellee.

Judgment affirmed in Case No. A00A1659.

Judgment reversed in Case No. A00A1658.

Pope, P. J., and Miller, J., concur.

        Taylor v. Gelfand, 233 Ga. App. 835-836 (505 SE2d 222) (1998).

        Espinoza v. State, 265 Ga. 171, 172 (1) (454 SE2d 765) (1995).

       (Citations and punctuation omitted.) Fulton County Tax Commr. v. Gen. Motors Corp., 234 Ga. App. 459, 466-467 (1) (507 SE2d 772) (1998).

       Ga. Const. 1983, Art. VII, Sec. II, Par. III.

       Clayton County Code, §§ 90-36 through 90-38.

       OCGA § 48-5-48.2 (b) (1).

       OCGA § 48-5-48.2 (b) (2).

       OCGA § 48-5-48.2 (b) (3).

       Dept. of Revenue Rule 560-12-2-.105 (1) (c).

       OCGA § 48-5-48.1.

       The Board repeats this argument with respect to the Category 2 and 3 exemptions. We need address only the definition of “inventory” here.

       American Institute of Accountants, Accounting Research Bulletin No. 43, p. 27.

       See Black’s Law Dictionary (6th ed. 1990), p. 824.

       (Citations and punctuation omitted.) Apollo Travel Svcs. v. Gwinnett County Bd. of

        Tax Assessors, 230 Ga. App. 790, 791-792 (3) (498 SE2d 297) (1998).

       Webster’s Collegiate Dictionary (10th ed.), p. 616.

       (Emphasis supplied.) OCGA § 11-9-109.

       OCGA § 48-5-48.2 (b) (1).

       258 Ga. 484 (371 SE2d 393) (1988).

       Id. at 485 (2).

       OCGA § 48-5-48.2 (b) (1).

       Ga. L. 1996, p. 926, § 1.

       Ga. Const. 1983, Art. VII, Sec. II, Par. III.

       Court of Appeals Rule 27 (b) (2) (Appellee’s brief shall contain appellee’s “argument and the citation of authorities as to each enumeration of error”).

       Delta completed the 1996 freeport application without a separate schedule listing the Category 2 property, without objection from the Board.

       OCGA § 48-5-105.1 (b).

       OCGA § 48-5-48.2 (b) (2).

       Supra, 230 Ga. App. 790.

       Id. at 792.

       OCGA § 48-5-48.2 (a) (4).

       Compare Apollo Travel Svcs., supra, 230 Ga. App. 790.

        Flambeau Corp. v. Morgan County Bd. of Tax Assessors, 238 Ga. App. 812 (520 SE2d 275) (1999); J. C. Penney Co. v. Richmond County Bd. of Tax Assessors, 233 Ga. App. 399, 401 (504 SE2d 201) (1998); Eckerd Corp. v. Coweta County Bd. of Tax Assessors, 228 Ga. App. 94 (491 SE2d 173) (1997); Stoddard v. Bd. of Tax Assessors of Grady County, 163 Ga. App. 499, 500 (295 SE2d 170) (1982).

       OCGA § 48-5-6.


author: Andrews, Presiding Judge.

text:
    A00A1757.
    KENNEDY v. THE STATE.
    (540 SE2d 229)
   Andrews, Presiding Judge.

Tony Andrew Kennedy was found guilty by a jury of two counts of selling cocaine in violation of the Georgia Controlled Substances Act. On appeal he claims that: (1) a statement he made to police while he was in custody and was being interrogated should have been excluded by the trial court because he was not given the warnings required by Miranda v. Arizona, 384 U. S. 436 (86 SC 1602, 16 LE2d 694) (1966); and (2) the trial court should have granted his motion for a mistrial when the State improperly placed his character into evidence. We find that the statement at issue was not subject to exclusion under Miranda because it was not obtained by interrogation but was volunteered by Kennedy, and the State did not improperly inject his character into evidence. Accordingly, we find no error and affirm the judgment of conviction entered on the guilty verdicts.

1. The State produced testimony from police officers and from an informant working for the police that Kennedy sold cocaine on two separate occasions to the informant. The State also produced evidence that Kennedy made a statement to police admitting that he sold cocaine to the informant. Kennedy testified and denied that he sold the cocaine. Viewed in the light most favorable to the jury’s guilty verdicts, the evidence was sufficient for a rational trier of fact to find that Kennedy was guilty of the charged offenses beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. Kennedy contends that the incriminating statement he gave should have been excluded because he gave it while he was in police custody and was being interrogated without the benefit of Miranda warnings. Miranda requires that, before police interrogate a suspect in custody, the suspect must be warned that: (1) the suspect has the right to remain silent; (2) the suspect’s statements may be used against him at trial; (3) the suspect has the right to the presence of an attorney during questioning; and (4) if the suspect cannot afford an attorney, one will be appointed. Id. at 478-479. In the absence of these warnings, Miranda requires that the suspect’s statements be excluded from evidence at trial unless the State can demonstrate the existence of an exception to the exclusionary rule. Id. at 479.

The evidence showed that, while Kennedy was in police custody and before he was given the Miranda warnings, he made a statement to police admitting he sold the cocaine. In denying Kennedy’s motion to exclude the statement, the trial court determined that it was not obtained through police interrogation but was a volunteered, spontaneous statement by Kennedy. Miranda warnings are required to protect a suspect being interrogated in police custody. Illinois v. Perkins, 496 U. S. 292, 297 (110 SC 2394, 110 LE2d 243) (1990). The State is not required to show that Miranda warnings were given before introducing evidence of a custodial statement which was not obtained through interrogation but was volunteered by the suspect. Miranda, 384 U. S. at 478. Accordingly, the issue is whether the custodial statement made by Kennedy without the benefit of Miranda warnings was admissible as a volunteered statement or should have been excluded as a statement obtained through police interrogation.

At a pretrial hearing to determine this issue, the evidence showed that, when Kennedy was arrested at his home, he told officers at the scene that he wanted his lawyer present and that he had nothing to say. There was no evidence that Kennedy was interrogated at the scene of his arrest and no evidence that he was given Miranda warnings at that time or later. After Kennedy was transported to the police station, a police officer met with Kennedy in the officer’s office and asked him if he wanted to make a statement. Kennedy replied that he did not want to make a statement. After the refusal, the officer did not ask any questions or make any further comments to Kennedy. At that point, the officer picked up and examined two pieces of crack cocaine that were part of the State’s evidence in the case. While the officer was examining the cocaine, Kennedy stated: “[Y]eah, I sold that to [the informant], that son of a bitch. I’m not taking any rap for that trafficking. I’ll plead to the two slabs of crack, but I’m not taking the rap for trafficking.”

The question presented on these facts is whether the conduct of the officer in picking up and examining the cocaine constituted interrogation of Kennedy. In Rhode Island v. Innis, 446 U. S. 291 (100 SC 1682, 64 LE2d 297) (1980), the Supreme Court determined that interrogation is not limited to actual questioning of a suspect by police but includes “express questioning or its functional equivalent.” Id. at 300-301. The phráse “functional equivalent” was explained as including “any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect.” (Footnotes omitted.) Id. at 301. The Court noted that “[t]he latter portion of this definition focuses primarily upon the perceptions of the suspect, rather than the intent of the police.” Id. The Court concluded that “since the police surely cannot be held accountable for the unforeseeable results of their words or actions, the definition of interrogation can extend only to words or actions on the part of police officers that they should have known were reasonably likely to elicit an incriminating response.” (Emphasis in original.) Id. at 301-302. In citing police practices that did not involve express questioning but which may amount to interrogation, the Court listed the use of lineups where a coached witness picks the suspect as the perpetrator; the so-called “reverse lineup” where the suspect is identified by a coached witness as the perpetrator of a fictitious crime, and the use of psychological ploys such as positing the guilt of the suspect as a fact; and minimizing the moral seriousness of the offense or casting blame for the offense on the victim or society. Id. at 299; Miranda, 384 U. S. at 450-453.

Under these standards, the evidence shows that Kennedy’s statement was not made in response to interrogation by express questioning from the officer, and we find under the facts of this case that the officer’s actions in picking up and examining the cocaine were not the functional equivalent of express questioning under Rhode Island v. Innis. We find nothing in the officer’s actions which amounted to the type of tricks or psychological ploys cited as interrogation techniques in Rhode Island or which otherwise indicated this was a practice designed to elicit an incriminating response. Kennedy simply observed the officer pick up and examine the evidence. These were not actions which the officer should have known were reasonably likely to elicit an incriminating response. Accordingly, we conclude that this was not interrogation, that the statement was volunteered by Kennedy, and that the trial court properly admitted the statement even though Kennedy had not received Miranda warnings. See State v. Gibson, 422 NW2d 570 (Neb. 1988); United States v. Suggs, 755 F2d 1538, 1541-1542 (11th Cir. 1985).

Decided October 3, 2000

Virgil L. Brown & Associates, Larkin M. Lee, for appellant.

Peter J. Skandalakis, District Attorney, Julianne W. Holliday, Assistant District Attorney, for appellee.

3. There is no merit to Kennedy’s claim that the mere mention that he has been in jail placed his character into issue. Taylor v. State, 272 Ga. 559, 561 (532 SE2d 395) (2000).

Judgment affirmed.

Ruffin and Ellington, JJ, concur.


text:
    A00A1876.
    JOHNSON v. THE STATE.
    (539 SE2d 914)
   Mikell, Judge.

Elsie Johnson was charged with two counts of financial transaction card theft and one count of financial transaction card fraud. The jury returned a guilty verdict on one count of financial transaction card theft, and the court directed a verdict of not guilty on the remaining counts. The trial court dismissed the defendant’s notice of appeal, and the defendant appeals the dismissal and her conviction. Because the trial court erred in excluding photographic evidence, we reverse.

Viewed in the light most favorable to support the verdict, the evidence shows that on November 12, 1997, Juanita Smith Lindsey reported the theft of her credit cards to the City of Forest Park Police Department. Lindsey was the manager of a local Burger King, and the defendant, Johnson, was an assistant manager at the same location. On the date in question, Lindsey reported to work at 5:30 a.m. and hung her purse, containing the credit cards, on the back of her office door, which was her normal practice. The manager’s office is located behind the counter, where only Burger King employees have access to it. Lindsey testified that approximately ten employees had access to her office on the day her cards were discovered missing.

Johnson was not scheduled to work on November 12, 1997; however, she arrived at the restaurant at approximately 8:00 a.m. to retrieve some home decorating merchandise she had ordered from a fellow employee. Lindsey testified that Johnson came behind the counter to assist the cashier and then entered the manager’s office where the purse was located. However, Lindsey could not see Johnson once she was in the office, because the windows were covered with posters.

Lindsey further testified that on the afternoon of November 12, she received a message notifying her that two women had attempted to make a purchase at a sporting goods store in Southlake Mall using her MasterCard. Lindsey went to the store, Foot Action USA, where she spoke with Andrew Carruth, the manager, who described the individuals attempting to use the card as “two heavy set black females.” Lindsey showed Carruth a single photograph of Johnson, and he identified her as one of the women in possession of the MasterCard.

During the trial, Carruth again identified the defendant as one of the individuals who attempted to make a purchase with Lindsey’s credit card. Carruth testified that he requested identification from the women, and one produced a driver’s license that did not match the name on the credit card. He was unable to recall the name on the driver’s license. The women left the store without purchasing any merchandise, and Carruth retained the card.

Lindsey testified that the last time she recalled using her credit cards was on November 8, 1997, four days before she realized that they were missing.

1. Johnson enumerates as error the trial court’s dismissal of her notice of appeal. The defendant was convicted on March 11, 1999, and she filed a motion for new trial on March 16. The court dismissed the motion for new trial by order entered on September 28, 1999, after Johnson failed to appear for a hearing on the motion. Johnson filed a notice of appeal on October 20, 1999. The trial court dismissed the notice of appeal because it was filed more than 30 days after the sentence was entered.

We conclude that the trial court erred in dismissing the notice of appeal. A timely motion for new trial extends the time for filing a notice of appeal. “[T]he . . . dismissal of the motion for new trial. . . is considered a disposition of the motion pursuant to OCGA § 5-6-38 (a), so as to commence the running of the 30-day period for filing an appeal.” Johnson filed a notice of appeal within 30 days after the dismissal of the motion for new trial; therefore, the appeal is properly before us and will be considered on its merits.

2. Johnson argues that the evidence was insufficient to authorize her conviction for financial transaction card theft. On appeal, the defendant no longer enjoys the presumption of innocence, and we view the evidence in the light most favorable to support the verdict. Our review is limited to determining whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.

Under OCGA § 16-9-31 (a) (1), a person is guilty of financial transaction card theft when she “takes, obtains, or withholds a financial transaction card from the person, possession, custody, or control of another without the cardholder’s consent.”

The evidence adduced at trial demonstrated that Johnson had access to Lindsey’s purse on November 12,1997, the date the MasterCard was discovered missing. The prosecution’s case relied heavily on the in-court identification of the defendant by Carruth, the manager of the sporting goods store, and on evidence of his out-of-court identification of Johnson when he was shown a single photograph by Lindsey.

We are constrained to find sufficient evidence supporting the jury’s verdict because the defense raised no objection to the impermissibly suggestive photographic array on which Carruth’s identification of the defendant was based.

3. Johnson also argues that the state failed to prove venue in Clayton County. We disagree.

Generally, criminal actions must be tried in the county in which they were committed, and venue must be proved beyond a reasonable doubt. “When no challenge to venue is raised at trial. . . and there is no evidence that venue is improper, slight evidence is sufficient to prove venue.” The defendant did not challenge venue during the trial. Therefore, only slight evidence that the crime was committed in Clayton County was necessary. Because both the restaurant where Johnson had access to the card and the store where the card was used are located in Clayton County, we conclude that there was sufficient evidence to establish venue.

4. Next, Johnson argues that the court erred in not allowing the defense to present evidence implicating two other women as the perpetrators of the crimes for which she was tried.

Johnson’s daughter, Shawanna Bunn, testified that two of her cousins actually stole Lindsey’s credit cards. The court did not allow the defense to pursue an explanation of how Bunn knew that her cousins were responsible for the alleged crimes. According to Johnson, Bunn’s testimony would have included out-of-court statements by her cousins admitting responsibility for the crimes.

The Supreme Court has recognized that trial courts are often faced with hearsay evidence proffered in an effort to demonstrate the guilt of someone other than the defendant. The Court has held that such evidence may be admissible under circumstances similar to those arising under the necessity exception to the rule against hearsay. If such evidence is critical to the defense, a trial court must determine the reliability and necessity of the proffered hearsay evidence before ruling on its admissibility.

[A] trial court faced with such an evidentiary question should analyze the question in the manner customarily employed when any hearsay evidence is proffered under the “necessity’ exception codified in OCGA § 24-3-1 (b). Hearsay . . . must have “particularized guarantees of trustworthiness,” that is, it must be “coupled with circumstances which attribute verity to it” . . . thereby making its admission necessary under the Due Process Clause should it be critical to the defendant’s defense.

However, to invoke an inquiry by the trial court, hearsay proponents must first make a proffer “in which the reliability and necessity of the hearsay evidence are thoroughly set out. . . .” The necessity of the evidence is obvious in the case at bar, but trial counsel made no proffer whatsoever. An affidavit from trial counsel in support of a motion for new trial offers some circumstances surrounding the alleged confessions by the defendant’s nieces. However, trial counsel should have offered that evidence at trial, outside the hearing of the jury, so that the trial judge could have conducted the analysis required by Drane v. State and by Chambers v. Mississippi. Because no proffer was made at trial, we cannot say that the trial court committed error by refusing to admit hearsay responses from the witness Bunn.

5. Additionally, Johnson contends that the court erred in refusing to admit photographs of her nieces to show their resemblance to her. We conclude that the photographic evidence offered was relevant, and its exclusion was harmful error. “Generally, evidence implicating another named individual as the actual perpetrator of the crime is relevant and admissible as tending to exonerate the defendant.”

Decided October 3, 2000.

Tony L. Axam, for appellant.

Johnson’s sole defense at trial was that another person committed the crimes, and Carruth’s identification of the defendant might have been challenged had the jury been shown photographs of the other women. Carruth gave a very general description of the women in possession of the stolen MasterCard as “two black females” who were “more or less heavy set, weighing between one forty and one eighty, something like that.” Carruth’s description would fit any number of women, and the fact that he was shown a single photograph of the defendant renders his identification all the more unreliable.

“Evidence enough to raise a reasonable doubt of defendant’s guilt in the mind of a juror, not evidence sufficient to convict [the defendant’s nieces,] would be adequate to change the outcome of this case.” The defendant should have been allowed to present evidence of the similarity of the appearance of the other women. Therefore, we reverse the conviction and remand this case for a new trial.

6. The defendant contends that the trial court erred in admitting evidence of the out-of-court identification of Johnson by a salesperson at a furniture store in DeKalb County.

According to the testimony of Lindsey, she learned that someone had used her Discover card to make a purchase at a furniture store in DeKalb County. The salesperson from the furniture store, James Thomas, did not testify at the trial; however, Lindsey testified, without objection from the defense, that he identified Johnson as the purchaser from the single photograph Lindsey showed him. Over objection, Detective Charles Crutchfield testified that he also showed Thomas a single photograph of Johnson, and that Thomas identified the defendant.

The court directed a verdict on Count 2 of the indictment, which alleged theft of the Discover card. Therefore, even if the court erred in allowing evidence of the impermissibly suggestive identification procedure, it was harmless error.

7. Finally, Johnson contends that her trial counsel was ineffective. Because we have reversed her conviction and remanded this case for a new trial, this enumeration is moot.

Judgment reversed.

Pope, P. J., and Miller, J., concur.

Robert E. Keller, District Attorney, Erman J. Tanjuatco, Assistant District Attorney, for appellee.

        Wright v. Rhodes, 198 Ga. App. 269 (401 SE2d 35) (1990).

       (Citation and punctuation omitted.) Heard v. State, 210 Ga. App. 805-806 (1) (437 SE2d 496) (1993).

       OCGA § 5-6-38 (a); see also Booker v. Amdur, 186 Ga. App. 276 (367 SE2d 94) (1988).

        Paul v. State, 231 Ga. App. 528 (499 SE2d 914) (1998).

        Williams v. State, 233 Ga. App. 217 (1) (504 SE2d 53) (1998).

        See Perkins v. State, 216 Ga. App. 118 (1) (453 SE2d 135) (1995); State v. Frye, 205 Ga. App. 508, 509 (2) (422 SE2d 915) (1992); Bradley v. State, 152 Ga. App. 902, 903 (264 SE2d 332) (1980).

       OCGA § 17-2-2 (a); Minter v. State, 258 Ga. 629 (1) (373 SE2d 359) (1988).

        Wright v. State, 219 Ga. App. 119, 120 (2) (464 SE2d 216) (1995).

        Jones v. State, 238 Ga. App. 523 (519 SE2d 279) (1999).

        Turner v. State, 267 Ga. 149, 154 (476 SE2d 252) (1996); Drane v. State, 265 Ga. 255, 257 (3) (455 SE2d 27) (1995).

       Id.

        Turner, supra.

       (Citations omitted.) Id. at 154-155.

       Id. at 155.

       Supra, 265 Ga. 255.

       410 U. S. 284 (93 SC 1038, 35 LE2d 297) (1973).

        Azizi v. State, 270 Ga. 709, 714 (6) (512 SE2d 622) (1999).

        Henderson v. State, 255 Ga. 687, 689 (1) (341 SE2d 439) (1986).


text:
    A00A2049.
    SHAFFER v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY.
    (540 SE2d 227)
   Mikell, Judge.

Netera Shaffer sued State Farm Mutual Automobile Insurance Company (“State Farm”) seeking to recover payment of benefits and bad faith penalties and attorney fees pursuant to OCGA § 33-4-6. The trial court granted State Farm’s motion for partial summary judgment on the OCGA § 33-4-6 bad faith claims, and Shaffer appeals. We affirm.

In reviewing grants of summary judgment, “this Court conducts a de novo review of the law and the evidence.” To prevail at summary judgment under OCGA § 9-11-56, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law.

So viewed, the evidence shows that Shaffer was involved in an automobile accident on July 6, 1995. She was insured by State Farm under a policy providing for payment of reasonable medical bills incurred as the result of an automobile collision. Shaffer received medical treatment at South Fulton Hospital on the day of the accident, and State Farm paid the resulting medical bill, as well as the cost of transport by ambulance. The next day, Shaffer sought medical attention from Dr. Patricia Glenn, an internist, who referred her to Atlanta Human Performance Center for physical therapy. State Farm paid Dr. Glenn’s bill in the amount of $180. The bill for Shaffer’s treatment at Atlanta Human Performance Center, which was submitted to State Farm, exceeded $5,000.

State Farm submitted plaintiff’s medical bills and records to Turner Services, an independent consulting firm, who retained Douglas Smith, M.D., a licensed physician, to conduct a review. In his original report, Dr. Smith concluded that certain medical bills were excessive, and that the records did not demonstrate the necessity of physical therapy for treatment of the injuries Shaffer suffered as a result of the accident. After additional medical records were provided, Dr. Smith issued a supplemental report, which concluded that a portion of the physical therapy treatment was excessive, and that the billing statements included duplicate charges. Dr. Smith recommended partial payment in the amount of $1,185.81, which State Farm tendered to Shaffer.

Shaffer filed suit, seeking payment of all medical bills, as well as statutory penalties and attorney fees under OCGA § 33-4-6 for State Farm’s refusal to pay certain benefits. On State Farm’s motion, the trial court granted partial summary judgment on the OCGA § 33-4-6 claims, finding that “the [defendant's refusal to pay was reasonable as a matter of law because a licensed physician advised the [defendant that certain treatments were not necessary.”

OCGA § 33-4-6 subjects an insurer to penalties and attorney fees if it refuses to pay a covered loss in bad faith. However, it is well-settled law that bad faith penalties are not authorized “if an insurer has a reasonable and probable cause for refusing to pay a claim.”

The advice of an independent medical examiner that the treatment furnished a claimant is not in fact necessary treatment for injuries arising from the accident covered by the insurance policy, unless patently wrong based on facts timely brought to the insurer’s attention, provides a reasonable basis for an insurer’s denial of a claim for payment for such treatment.

Here, Dr. Smith, an independent physician, advised State Farm that the treatment furnished to Shaffer was not medically necessary for the injuries she sustained as a result of the accident. Shaffer suggests that Dr. Smith might have been biased toward the denial of her claims; however, she failed to present evidence that his opinion was “patently wrong.” Thus, State Farm had a reasonable basis upon which to deny Shaffer’s claims.

Contrary to plaintiff’s argument that this issue should have been presented to a jury, “when there is no evidence of unfounded reason for the nonpayment. . . the court should disallow imposition of bad faith penalties.” Therefore, we conclude that the trial court properly granted partial summary judgment to State Farm on plaintiff’s claims for statutory penalties and attorney fees.

Decided October 3, 2000.

Joe A. Weeks, for appellant.

Downey & Cleveland, William C. Anderson, for appellee.

Judgment affirmed.

Pope, P. J., and Miller, J., concur.

        Desai v. Silver Dollar City, 229 Ga. App. 160, 163 (1) (493 SE2d 540) (1997).

       OCGA § 9-11-56 (c); Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

        Haezebrouck v. State Farm &c. Ins. Co., 216 Ga. App. 809, 811 (3) (455 SE2d 842) (1995). See also Lancaster v. USAA Cas. Ins. Co., 232 Ga. App. 805, 807 (3) (502 SE2d 752) (1998); Rice v. State Farm Fire &c. Co., 208 Ga. App. 166, 169 (1) (430 SE2d 75) (1993).

       (Citations and punctuation omitted.) Jones v. State Farm &c. Ins. Co., 228 Ga. App. 347, 350-351 (3) (491 SE2d 830) (1997).

       See Haezebrouck, supra, 216 Ga. App. at 811.

       (Citations and punctuation omitted.) Neal v. Superior Ins. Co., 208 Ga. App. 827 (432 SE2d 253) (1993).


text:
    A00A2222.
    THE STATE v. MURPHY.
    (540 SE2d 231)
   Andrews, Presiding Judge.

The State appeals from the trial court’s order granting Brock Andrew Murphy’s motion to suppress. For the following reasons, we reverse.

In ruling on a motion to suppress, the trial court’s findings as to disputed facts are reviewed to determine whether the ruling was clearly erroneous. Vansant v. State, 264 Ga. 319, 320 (443 SE2d 474) (1994). “[W]here the evidence is uncontroverted and no question regarding the credibility of witnesses is presented, the trial court’s application of the law to undisputed facts is subject to de novo appellate review.” Id.

In this case, the officer testified that on the evening in question he was patrolling an area in which there had been complaints of minors loitering. The officer saw and heard a Jeep coming out of a golf club parking lot at around 9:30 p.m., long after the club had closed. The Jeep’s exhaust was loud and sounded defective, so the officer pulled the Jeep over. The officer went over to the driver’s side window to talk to Murphy. As he was questioning Murphy, he could smell alcohol on his breath.

Murphy also testified at the hearing, and, when asked whether the exhaust on his Jeep made a lot of noise, he replied, “It makes a decent amount.”

The trial court granted the motion to suppress, finding that although the loud engine noise may have authorized a brief stop, the failure of the officer to further investigate the loud muffler made the stop pretextual. This is an incorrect statement of law.

In determining whether to grant a motion to suppress, the court must first decide whether the officer had a reasonable, articulable suspicion of criminal wrongdoing so as to justify a brief detention.

Decided October 3, 2000.

Steven L. Harris, Solicitor, Lura Landis, Assistant Solicitor, for appellant.

Ballard & Ballard, Scott L. Ballard, for appellee.

Terry v. Ohio, 392 U. S. 1 (88 SC 1868, 20 LE2d 889) (1968), recognizes that although a police officer may not have probable cause to arrest someone, if there is a reasonable suspicion of criminal wrongdoing, based upon specific and articulable facts from which it can be determined that the action of the police officer is not arbitrary or harassing, the police officer may make a brief, investigatory detention of the individual. . . .

(Citations omitted.) Brooks v. State, 206 Ga. App. 485, 488 (2) (425 SE2d 911) (1992).

Here, the trial court was correct in holding that the loud exhaust noise could authorize the brief stop. The record shows the officer had a reasonable suspicion that the Jeep’s exhaust system was faulty. Therefore, Murphy was in violation of OCGA § 40-8-71 which provides that all vehicles must be equipped with an exhaust system that is in good working order and in constant operation. Buffington v. State, 228 Ga. App. 810, 811 (492 SE2d 762) (1997). But, even if the stop for the exhaust violation was pretextual, it still would not have violated constitutional principles because Murphy committed the violation in the officer’s presence and this act justified the stop. Whren v. United States, 517 U. S. 806 (116 SC 1769,135 LE2d 89) (1996); Buffington, supra at 812. “If the officer witnesses even a minor traffic violation, a suppression motion arguing that the stop was pretextual must fail.” State v. Harris, 236 Ga. App. 525, 527 (513 SE2d 1) (1999). Accord Roberts v. State, 242 Ga. App. 120, 121 (527 SE2d 617) (2000); Harris v. State, 239 Ga. App. 537, 540 (521 SE2d 462) (1999); Howard v. State, 233 Ga. App. 861 (505 SE2d 270) (1998).

Although we note that Murphy was charged with having a defective exhaust system, it is immaterial whether the observed traffic offense is charged after the more serious offense is discovered. Howard, supra at 861-862; Buffington, supra at 813. The officer was not required to investigate Murphy’s exhaust system after he stopped the Jeep, and the trial court erred in so holding.

Judgment reversed.

Ruffin and Ellington, JJ, concur.

       We note that Murphy filed a motion to dismiss claiming the State should have filed an application for an interlocutory appeal instead of directly appealing the order. This is incorrect. The State could properly file a direct appeal under OCGA § 5-7-1 (a) (4).


author: Phipps, Judge.

text:
    A00A0992.
    In the Interest of S. S. et al., children.
    (540 SE2d 238)
   Phipps, Judge.

The mother of Sh. S., T. S., and St. S. and the father of Sh. S. and T. S. appeal the termination of their parental rights. The mother asserts that the juvenile court improperly terminated her parental rights because she was not served personally with a copy of the petition for termination of parental rights or the summons indicating the date of the hearing. We agree and reverse the termination of her parental rights. Because the father of Sh. S. and T. S. has failed to present any error for our review, we affirm the termination of his parental rights.

In the third deprivation action filed on behalf of these children, Sh. S., T. S., and St. S. were placed in the custody of the Gwinnett County Department of Family & Children Services (DFACS) based on the juvenile court’s determination that they were deprived. At that time, the children lived with their mother and her elderly and infirm parents in unsanitary and unsafe conditions. The mother has alcohol and substance abuse problems and had been unable to maintain stable employment or housing. The causes for all three deprivation actions have been the same — instability, substance abuse, and neglect.

On May 14,1998, the juvenile court ordered the mother to obtain and maintain stable employment and living arrangements; undergo alcohol and drug evaluation, treatment, and random screening; undergo individual and family counseling; pay child support; maintain a clean, orderly, sanitary and suitable home; and visit regularly with the children. Although she paid some child support, the mother failed to comply with any other aspect of the court’s order. In addition, the oldest child’s therapist said that the child felt extreme anxiety about reunification with her mother unless she satisfactorily addressed her alcohol problem and that the child’s psychological, mental, and moral welfare was being compromised due to her mother’s intransigence.

Based on the mother’s complete failure to improve her situation after three years and three deprivation actions, the juvenile court granted DFACS’s motion to suspend reunification efforts and extended DFACS’s temporary custody of the children. At the November 12, 1998 hearing on that motion, at which the mother was present, DFACS indicated its desire to pursue termination of parental rights.

On May 20, 1999, DFACS filed a petition for termination of parental rights. A summons was issued for the mother on May 28, 1999, to notify her that the petition had been filed and of a hearing for the purposes of terminating her parental rights. There is no indication in the record as to when, how, or whether the mother was served with the summons or the petition.

On October 11, 1999, the juvenile court conducted a hearing on the termination petition. Prior to the hearing, counsel for DFACS represented to the court that service had been perfected on the parents. The parents’ attorney stated that his clients, although not present, “were notified through the mail by the Department.” He also stated that he had not been able to locate them by mail or telephone.

DFACS presented one witness at the hearing — the DFACS caseworker assigned to the children. He testified that he sought to have the mother served at her last known address, as set forth in the petition. He also testified that although the father had notified DFACS that the mother was living with him at a different address, no one had attempted to confirm whether she was actually there. Immediately after DFACS presented its case, the parents’ attorney presented closing argument in which he stated that he did not believe the mother had received notice of the hearing and requested that the court defer termination until the mother received actual notice of the proceedings. The court nevertheless granted the termination petition, finding that the children were deprived, that they would continue to be deprived, and that it would be in their best interests to terminate the mother’s and fathers’ parental rights.

1. Pursuant to OCGA § 15-11-83 (c), a summons, with the petition for the termination of parental rights attached, must be served at least 30 days before the time set for the hearing in the manner provided for in OCGA § 9-11-4. Personal service of the petition in a termination action is not only required by statute, but also is constitutionally required.

Applying these legal principles to the record before us, we find that service of process on the mother was insufficient. There is no evidence that the mother was served personally with the summons and petition or by leaving a copy at her dwelling house or usual place of abode with a person of suitable age and discretion then residing therein. The fact that she may have had actual notice of the termination proceeding would not cure the defective service.

Relying on In the Interest of D. R. W. , DFACS argues that any defects in service of process were waived. We disagree.

In that case, the attorney for D. R. W.’s mother never raised the issue of insufficiency of service of process at the termination hearing. Also D. R. W.’s mother had failed to appear for two prior hearings, giving the attorney a good faith basis to raise the issue of service at those hearings.

Here, the mother’s attorney did raise the issue of insufficiency of service of process at the hearing. In addition, the mother attended at least four hearings prior to the hearing on the termination petition. Her attorney therefore had no prior opportunity to raise the issue.

In termination of parental rights cases, because of their sensitive nature and the infringement on fundamental liberties they entail, we recognize that we must be vigilant to protect the parties’ rights and interests by observing all formalities required by law, including proper service of process. We therefore refuse to establish inflexible rules designed to make waiver more likely but instead choose to evaluate each individual case on its particular facts to determine if a waiver has occurred.

As was the case in D. R. W., the mother’s attorney could have reviewed the clerk’s file before the hearing to determine if service had been perfected. But such a review should not be required to ensure that the defense of insufficiency of service of process is not waived unless sufficient reason to doubt proper service exists prior to the hearing. The only evidence that could arguably create such doubt is the fact that the mother’s attorney had some difficulty contacting his clients prior to the hearing. But he also stated that he knew that his clients had received notice of the proceedings in the mail from DFACS and presumably thought that they had also been personally served with the petition.

We recognize that the mother’s attorney did not raise any objection to service .until the end of the hearing, but find that it was timely under the circumstances. At the start of the hearing, the DFACS attorney represented to the court that service had been perfected on the parents. The DFACS attorney then presented his first witness — the DFACS caseworker. It became apparent during the caseworker’s testimony that there were issues regarding proper service. No other witnesses testified at the hearing. After the caseworker’s testimony, during closing argument, the mother’s attorney placed his objection on the record. Under the circumstances, his objection was made at the first practicable opportunity, thereby precluding waiver of the issue.

Decided October 4, 2000.

Rodney S. Harris, for appellants.

Thurhert E. Baker, Attorney General, Dennis R. Dunn, Deputy Attorney General, William C. Joy, Senior Assistant Attorney General, Shalen S. Nelson, Assistant Attorney General, Cheeley & Joyner, John P. Cheeley, for appellee.

Despite our firm belief that the juvenile court’s action was taken in the best interests of the children, because we find that the required personal service was not made or waived, we must reverse the judgment of the juvenile court terminating the mother’s parental rights.

2. The father has not presented any error for our review. We therefore affirm the juvenile court’s termination of his parental rights.

Judgment affirmed in part and reversed in part.

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

       St. S.’s natural father is unknown and unidentified. He was notified of the proceedings through service by publication.

       DFACS also presented a letter from Sh. S. and made her available for cross-examination, but she never took the witness stand.

       OCGA § 15-11-83 was redesignated as OCGA § 15-11-96, effective July 1, 2000.

        In the Interest of C. I. W., 229 Ga. App. 481, 484 (2) (494 SE2d 291) (1997).

       OCGA § 9-11-4 (e) (7).

        In the Interest of D. R. W, 229 Ga. App. 571, 574 (1) (494 SE2d 379) (1997).

       Id. at 574 (2).

       Id.

       See id.

       See In the Interest of C. I. W., supra.