author: Eldridge, Judge.

text:
    A01A0165.
    FLANIGAN v. EXECUTIVE OFFICE CENTERS, INC. et al.
    (546 SE2d 559)
   Eldridge, Judge.

In August 1998, appellant-plaintiff Gary Flanigan d/b/a Curry, Street, Gardner & Flanigan (“Flanigan”), a movie production company, and appellee-defendant Executive Office Centers, Inc. d/b/a [¶] Business Centers of Atlanta (“Executive”) entered into a business identity service agreement (“service agreement”). Under the service agreement, Executive provided Flanigan its basic identity service, a service inclusive of telephone answering, a business address for use on client stationery, use of a facsimile number and a telephone number, and mail and package handling. By other provisions of the service agreement, the parties agreed to waive any claims for damages arising under the agreement, substituting therefor liquidated damages limited to an adjustment in the client’s billing in an amount equal to the charge for such service for the period during which the failure, delay, or disruption continued.

A dispute as to alleged overcharges arose between the parties as a result of a bill Executive sent Flanigan in October 1998. After adjusting the billing downward approximately a month later, appellee-defendant Julie Rainey, an Executive employee, demanded payment within 24 hours. Letters were thereafter exchanged in which Flanigan accused Rainey of a “PMS” approach to management, and Executive terminated its services to Flanigan, stating that the account was past due. Subsequently, Eugene D. Vezzani, President of Universal MetroMedia Capital Corporation (“UMMCC”), informed Flanigan by letter that UMMCC had rescinded its $6,000,000 commitment to fund a movie which Flanigan was to produce — this, because of his inability to contact Flanigan at its Executive-provided telephone number or business address.

Flanigan filed suit against Executive, alleging breach of contract, negligence, tortious interference with contractual relations, and punitive damages, pertinently seeking special damages in the amount of $6,000,000 on the negligence count. The state court granted Executive summary judgment on all counts of Flanigan’s complaint. Flanigan appeals, contending that the state court erred insofar as it granted Executive summary judgment on its negligence claim because: (1) the exculpatory clause in the service agreement between the parties was insufficient to waive Executive’s negligence in terminating services to Flanigan as wilful and wanton, and (2) a jury question exists as to whether Executive terminated the services it provided to Flanigan in bad faith. Held:

1. The state court did not err in granting summary judgment to Executive.

Absent a public policy interest, contracting parties are free to contract to waive numerous and substantial rights, including the right to seek recourse in the event of breach by the other party. (Citations and punctuation omitted.) Piedmont Arbors Condo. &c. v. BPI Constr. Co., 197 Ga. App. 141, 142 (397 SE2d 611) (1990).

Imaging Systems Intl. v. Magnetic Resonance Plus, 227 Ga. App. 641, 644 (1) (490 SE2d 124) (1997). In this regard, such exculpatory language does not relieve one from liability for wilful or wanton misconduct. Brady v. Glosson, 87 Ga. App. 476, 478-479 (74 SE2d 253) (1953); Hawes v. Central of Ga. R. Co., 117 Ga. App. 771, 772 (162 SE2d 14) (1968). However, by its negligence count, Flanigan has averred only simple negligence in terminating business identity services it had contracted for. While Flanigan’s complaint alleges that Executive’s actions were “wanton, willful [sic], and intentional,” it does so only in support of its claim for punitive damages. Moreover, Flanigan does not challenge the grant of summary judgment for Executive as to punitive damages. See MacDonald v. MacDonald, 156 Ga. App. 565 (275 SE2d 142) (1980) (appellate review limited to grounds presented to and ruled upon by trial court). No issue remaining on the question of Executive’s actions as wilful or wanton negligence and the validity of the exculpatory clause to waive simple negligence undisputed under the service agreement, the state court properly granted summary judgment to Executive on Flanigan’s negligence claim. Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991); McNeal Loftis, Inc. v. Helmey, 218 Ga. App. 628, 629 (462 SE2d 789) (1995) (“[a] demonstration of mere negligence is not sufficient to show wilful or wanton [conduct].”).

Even were this not the case, the liquidated damages provision of the services contract in and of itself is sufficient to authorize summary judgment for Executive in this case. Lau’s Corp. v. Haskins, supra. It is undisputed that the service agreement bound Flanigan to liquidated damages only in lieu of damages which might otherwise have been recoverable in contract. Woodhull Corp. v. Saibaba Corp., 234 Ga. App. 707, 712 (2) (507 SE2d 493) (1998).

[Flanigan] is not permitted a double recovery of the same damages for the same wrong. He is entitled to only one satisfaction of the same damages, in either contract or tort. Saunders, Stuckey & Mullís, Inc. v. Citizens Bank &c. Co., 265 Ga. 453, 456 (458 SE2d 337) (1995); City of Atlanta v. J. A. Jones Constr. Co., 260 Ga. 658, 659 (2) (398 SE2d 369) (1991); Georgia Society of Plastic Surgeons v. Anderson, 257 Ga. 710, 714-715 (4) (363 SE2d 140) (1987); Nalley Northside Chevrolet v. Herring, 215 Ga. App. 185, 188-189 (5) (450 SE2d 452) (1994); Mathis v. Melaver, Inc., 206 Ga. App. 392, 393 (425 SE2d 401) (1992).

Id. at 712. Finally, while there can be separate damages in contract and tort where separate transactions support recovery under each theory, such is not the case here. Henderson v. Glen Oak, Inc., 256 Ga. 619 (351 SE2d 640) (1987); Woodhull Corp. v. Saibaba Corp., supra at 713; see also Long v. Marion, 182 Ga. App. 361, 366 (5) (355 SE2d 711) (1987).

2. In light of our disposition in Division 1, we need not address Flanigan’s remaining claim of error.

Judgment affirmed.

Andrews, P. J., and Miller, J., concur.

Decided March 5, 2001

Reconsideration denied April 3, 2001

Lorenzo C. Merritt, Robert Kenner, Jr., for appellant.

Troutman Sanders, Michael E. Johnson, Stephen W. Riddell, for appellees.

       Flanigan amended its complaint to substitute Executive for HQ Business Centers of Atlanta as appellee-defendant.

       The services agreement pertinently provided:
      THE CLIENT [Flanigan] EXPRESSLY AGREES TO WAIVE, AND AGREES NOT TO MAKE ANY CLAIM FOR DAMAGES, DIRECT OR CONSEQUENTIAL, ARISING OUT OF ANY FAILURE TO FURNISH ANY UTILITY, SERVICE OR FACILITY, ANY ERROR OR OMISSION WITH RESPECT THERETO, OR ANY DELAY OR INTERRUPTION OF THE SAME.
      (Emphasis in original.)

       “Special damages are ‘those which actually flow from a tortious act.’ OCGA § 51-12-2.” Imaging Systems Intl. v. Magnetic Resonance Plus, 227 Ga. App. 641, 645 (1) (490 SE2d 124) (1997).

       Otherwise, Flanigan sought $6,000,000 in lost profits, $6,000,000 in consequential damages, and $30,000 in special damages on its claim for breach of contract; $6,000,000 in actual damages on its claim for tortious interference with contractual relations; and $8,000,000 on its claim for punitive damages.


source: Caselaw Access Project

license: Public Domain

text:
    A01A0663.
    MILLER v. VITNER.
    (546 SE2d 917)
   Eldridge, Judge.

The medical malpractice statute of repose, OCGA § 9-3-71 (b), attaches when an action filed within the statute of limitation is voluntarily dismissed and refiled more than five years after the alleged injury. See Wright v. Robinson, 262 Ga. 844, 846 (1) (426 SE2d 870) (1993) ; see also Sievers v. Espy, 264 Ga. 118, 119 (442 SE2d 232) (1994) ; Blackwell v. Goodwin, 236 Ga. App. 861, 863 (2) (513 SE2d 542) (1999); Burns v. Radiology Assoc. of Gwinnett, 214 Ga. App. 76, 77 (446 SE2d 788) (1994). In this case, on January 23, 1995, plaintiff voluntarily dismissed her medical malpractice action (an action which arose on March 11 and 15, 1989, respectively, and was filed on March 18,1991) when the trial court denied a motion to continue the case from the trial calendar; on July 7, 1995, plaintiff refiled the action after paying costs within six months. The trial court granted Dr. Vitner’s motion for summary judgment based upon the statute of repose. We affirm.

The statute of repose in medical malpractice cases expires five years from the date of the alleged negligent act unless there exists a timely filed suit. Zechmann v. Thigpen, 210 Ga. App. 726, 730 (4) (437 SE2d 475) (1993). The statute of ultimate repose does not bar a cause of action from being brought, which is a defense to the merits that can be waived, but abrogates any cause of action so that no cause of action continues to exist; thus, the cause of action ceases to exist in law after the five years have passed. Wright v. Robinson, supra at 845. When a timely filed lawsuit on such cause of action is pending, the statute of repose is prevented from attaching; however, a voluntary dismissal after five years permits the statute of repose to attach so that there is no cause of action to be renewed by a subsequently filed suit within six months. Id. at 846.

Actual fraud in concealing tortious injury by a physician to avoid suit will equitably estop the raising of the statute of repose by such defendant. See Esener v. Kinsey, 240 Ga. App. 21, 22-24 (522 SE2d 522) (1999); Hill v. Fordham, 186 Ga. App. 354, 357-358 (2) (367 SE2d 128) (1988). In this case, plaintiff asserts that, notwithstanding the law to the contrary, Vitner is equitably estopped from asserting the statute of repose by the fraud of Midtown Hospital of Atlanta in obtaining its license. Midtown is not a party to this action and under the holdings in both Vitner v. Miller, 223 Ga. App. 692-693 (1) (479 SE2d 1) (1996) and Vitner v. Miller, 208 Ga. App. 306, 307 (430 SE2d 671) (1993), would be subject to the same statute of limitation defense as Vitner regarding the March 11,1989 procedure. Further, the record is devoid of any evidence of fraud, and plaintiff fails to point to the record in his brief to support such contention. If Midtown had committed fraud, then such fraud could not be imputed to Vitner to avoid the statute of repose. See Rossi v. Oxley, 269 Ga. 82, 83 (2) (495 SE2d 39) (1998).

Decided March 15, 2001

Reconsideration denied April 3, 2001

Donald W. Johnson, for appellant.

Hall, Booth, Smith & Slover, Rush S. Smith, Jr., James E. Looper, Jr., for appellee.

For equitable estoppel to prevent the assertion of the statute of repose, only intentional fraud of the physician preventing the plaintiff from discovering the injury will give rise to the applicability of such doctrine. See Esener v. Kinsey, supra at 23; Beck v. Dennis, 215 Ga. App. 728, 729-730 (1) (452 SE2d 205) (1994), overruled in part on other grounds, Abend v. Klaudt, 243 Ga. App. 271, 276 (2) (531 SE2d 722) (2000); Bynum v. Gregory, 215 Ga. App. 431, 434 (2) (450 SE2d 840) (1994); Lasoya v. Sunay, 193 Ga. App. 814, 815-816 (1) (389 SE2d 339) (1989); Hill v. Fordham, supra at 358. Thus, there are no facts in this case raising an issue of fraud by Vitner to give rise to equitable estoppel to raise the defense of the statute of repose.

Judgment affirmed.

Andrews, P. J., and Miller, J., concur.


author: Barnes, Judge. Andrews, Presiding Judge,

text:
    A97A1136.
    SECURITY LIFE INSURANCE COMPANY v. CLARK et al.
    (547 SE2d 691)
   Barnes, Judge.

In Security Life Ins. Co. v. Clark, 273 Ga. 44 (535 SE2d 234) (2000) (Security IV), the Supreme Court reversed our decision in Security Life Ins. Co. v. Clark, 239 Ga. App. 690 (521 SE2d 434) (1999) (Security III), in which we affirmed the judgment of the trial court. Earlier, the Supreme Court in Clark v. Security Life Ins. Co., 270 Ga. 165 (509 SE2d 602) (1998) (Security II), affirmed in part and reversed in part our decision in Security Life Ins. Co. v. Clark, 229 Ga. App. 593 (494 SE2d 388) (1997) (Security I), which reversed the judgment of the trial court.

Therefore, our opinion in Security III is vacated, and the judgment of the Supreme Court in Security TV is made the judgment of this court. Further, in accordance with Security I, Security II, and Security IV, the judgment of the trial court is reversed and the case remanded to the trial court for proceedings consistent with Security IV, Security II, and Security I.

Security Life’s motion to establish a briefing schedule is denied.

Judgment reversed and case remanded.

Blackburn, C. J., Pope, P. J., Johnson, P. J., Ruffin and Eldridge, JJ., concur. Andrews, P. J., concurs specially.

Andrews, Presiding Judge,

concurring specially.

Because of the extensive history of this case in both this Court and the Supreme Court, I write separately to attempt to ensure that, upon return to the trial court, that court will have clear guidance, thereby facilitating resolution of this matter.

1. Regarding the Clarks’ Racketeer Influenced & Corrupt Organizations Act claim, pursuant to Security Life Ins. Co. v. Clark, 229 Ga. App. 593, 599-601 (1) (b), (c) (494 SE2d 388) (1997) (Security Life I), aff’d in part and rev’d in part, Clark v. Security Life Ins. Co., 270 Ga. 165 (509 SE2d 602) (1998) (Security Life II), the trial court should be directed to enter judgment in favor of Security Life on that claim. See Security Life Ins. Co. v. Clark, 273 Ga. 44, 46-48 (1), (2) (535 SE2d 234) (2000) (Security Life IV).

2. Also, as emphasized by the Supreme Court’s opinion in Security Life TV regarding the “law of the case,” our ruling in Division 2 of Security Life I, dealing with the trial court’s direction of a verdict for the Clarks on their wrongful interference with property rights claim, remains intact. Security Life I, 229 Ga. App. at 603 (2). Therefore, direction of a verdict in favor of the Clarks on that claim was error.

3. Security Life’s seventh enumeration of error in Security Life I was also meritorious because awarding the total face value of the Clarks’ insurance policies as damages on the RICO claim was error and would be error on any potentially remaining claim. See Walker v. Grand Intl. Brotherhood &c., 186 Ga. 811, 820 (199 SE 146) (1938); Brothers & Sisters of Charity v. Renfroe, 57 Ga. App. 646, 653 (4) (196 SE 135) (1938); Prudential Ins. Co. &c. v. Ferguson, 51 Ga. App. 341, 345 (180 SE 503) (1935).

At trial, the only damages proven by either Clark as a result of the forged application and later wrongful rescission of their coverage were that, as of February 1996, Mr. Clark had submitted to Security Life claims in the amount of $62,330.41 which had not been paid.

Mrs. Clark did not testify at the trial, and there is no evidence of any damages suffered by her as a result of these events. In fact, evidence at trial showed that she had obtained better insurance at a lower rate after the rescission of Mr. Clark’s policy. Therefore, Security Life is entitled to entry of judgment in its favor on all of Mrs. Clark’s claims since a motion for directed verdict on her failure to prove damages was improperly denied.

Further, because of the improper measure of damages used for Mr. Clark on any possible remaining claims, no judgment could be entered for Mr. Clark on the record before us.

4. Mr. Clark urges, in his Supplemental Brief on the Issue of What Further Action the Court of Appeals Can Take Consistent with the Supreme Court’s Decisions, that the trial court still can enter a verdict for Mr. Clark based on his fraud claim. Although that brief repeatedly refers to rulings of the Supreme Court in Security Life II as affirming the existence of an “insurance fraud scheme,” neither Security Life I, Security Life II, nor Security Life IV does so.

In Division 1 (d) of Security Life I, the discussion of vicarious liability related only to the forgery of the Clarks’ application. In concluding that vicarious liability under RICO is determined “in accordance with liability for criminal acts[,]” and not under civil standards for vicarious liability, the Supreme Court, in Security Life II, concluded only that

Applying the criminal standard, . . . the trial court did not err in submitting the issue of vicarious liability to the jury. There was some evidence from which the jury could conclude that Security Life recklessly tolerated the forgery by not investigating the charge of forgery and by pressing its rescission claim long after learning that Fipps forged the application.

270 Ga. at 168 (2).

This conclusion is reiterated in Security Life IV, 273 Ga. at 47 (2), where the Supreme Court noted that the vicarious liability issue “was based entirely upon agent Fipps’ independent act of forgery, which was not an element of the alleged RICO scheme.”

5. Finally, the issue of punitive damages must be addressed, since there remains the possibility of further proceedings in the trial court, including Mr. Clark’s claim of punitive damages. Although Security Life made a motion for directed verdict on the issue of punitive damages, contending that there was insufficient evidence of intent on the part of Security Life to allow the issue to go to the jury, denial of that motion was not the subject of an enumeration of error in the appeal in Security Life I.

Decided April 3, 2001.

Sutherland, Asbill & Brennan, William D. Barwick, Teresa W. Roseborough, Robert J. Neis, Amelia T. Rudolph, Carla W. McMillian, for appellant.

Gregory, Christy & Maniklal, Hardy Gregory, Jr., Preyesh K. Maniklal, William S. Stone, Kevin R. Dean, for appellees.

Beckmann & Pinson, William H. Pinson, Jr., Goldner, Sommers, Scrudder & Bass, Henry E. Scrudder, Jr., Morris, Manning & Martin, Lewis E. Hassett, Bovis, Kyle & Burch, Steven J. Kyle, James E. Singer, Love & Willingham, Allen S. Willingham, Wesley C. Taulbee, Jones, Cork & Miller, Thomas C. Alexander, Duncan & Mangiafico, George E. Duncan, Jr., Kinney, Kemp, Sponcler, Joiner & Tharpe, F. Gregory Melton, amici curiae.

The grounds enumerated in Enumeration VIII, however, regarding various arguments made by the Clarks during the punitive damages phase of the trial, are meritorious. It was improper to argue that any punitive damages assessed against Security Life would not be paid by it, but would be paid by numerous reinsurers who were not parties to the case. Myrick v. Stephanos, 220 Ga. App. 520 (1) (472 SE2d 431) (1996). It was improper to instruct the jury that it should consider the fact that the Clarks would have to pay tax on the punitive damages. Ford v. Uniroyal Goodrich Tire Co., 267 Ga. 226, 230-232 (4), (5) (476 SE2d 565) (1996). Finally, after the jury returned its special interrogatory verdict form indicating that it did not find the specific intent required by OCGA § 51-12-5.1 (b) and (g), which was necessary in order to impose more than $250,000 in punitive damages, the trial court improperly directed the jury to reconsider only this special interrogatory answer, finding it was “inconsistent” with the RICO and fraud liability found. It is the jury’s province to determine whether a defendant had the requisite intent required in order for a plaintiff to recover in excess of the $250,000 cap. Elliott v. McDaniel, 224 Ga. App. 848, 854-855 (5) (483 SE2d 104) (1997), rev’d on other grounds, McDaniel v. Elliott, 269 Ga. 262 (497 SE2d 786) (1998). The negative answer to this special interrogatory was not, as a matter of law, inconsistent with the jury’s other findings, and the court erred in so concluding. Id.; Colonial Stores v. Fishel, 160 Ga. App. 739, 742 (1) (288 SE2d 21) (1981).

Therefore, I believe the judgment of the trial court should be reversed and remanded with direction, as stated above.


author: Phipps, Judge.

text:
    A01A0195.
    In the Interest of A. M. W. et al., children.
    (547 SE2d 401)
   Phipps, Judge.

Upon petition by the Atkinson County Department of Family & Children Services (DFACS), the juvenile court terminated B. J.’s parental rights to her three children, A. M. W., S. L. W., and J. L. J. B. J. appeals, claiming that the evidence was insufficient to show present parental misconduct or inability or that the children’s deprivation was likely to continue. Because the evidence was sufficient, we affirm.

The decision to terminate parental rights involves a two-step inquiry. First, the court must determine whether there is present clear and convincing evidence of parental misconduct or inability. Parental misconduct or inability exists if (1) the child is deprived; (2) the deprivation is caused by the parent’s lack of proper parental care or control; (3) the cause of the deprivation is likely to continue or will not likely be remedied; and (4) the continued deprivation will likely cause serious physical, mental, emotional, or moral harm to the child. Second, if the court finds clear and convincing evidence of present parental misconduct or inability, then the court must consider whether termination of parental rights is in the best interest of the child. We review the juvenile court’s decision to determine whether, viewing the evidence in the light most favorable to DFACS, any rational trier of fact could have concluded by clear and convincing evidence that the natural parent’s custody rights had been lost.

So viewed, the evidence in this case showed that DFACS began providing services to B. J. and her children in 1989, following complaints that the children were infested with crawling lice and lived in a filthy home. In 1996, DFACS developed a case plan for B. J. and her husband designed to ensure that the children received adequate medical care and that the home was kept clean.

In March 1997, DFACS investigated a complaint that B. J.’s husband, the father of J. L. J., was sexually, physically, and emotionally abusing A. M. W. and S. L. W. The husband admitted to the allegations. B. J. acknowledged that she was aware of the abuse, but had done nothing to stop it and had not reported it to her DFACS caseworker. The caseworker told B. J. to keep the children away from her husband, but B. J. nevertheless took them back to his house.

In June 1997, the juvenile court found that the children were deprived, that B. J. had failed to protect them, and that she had no employment, home, transportation, or ability to care for her children. Accordingly, the court granted custody of the children to DFACS for a period of 12 months, and they were placed in foster care. The court’s order incorporated a DFACS case plan to reunite B. J. with her children. The case plan provided, among other things, that B. J. would maintain clean and safe housing, obtain and maintain employment, attend counseling, and visit the children regularly. B. J. did not appeal the order.

In February 1998, the juvenile court entered an order extending DFACS’s custody of the children for 12 months. B. J. agreed to the extension.

In November 1998, B. J. pled guilty to seven counts of cruelty to children in connection with her husband’s earlier abuse of her children. She was sentenced to ten years of probation. A special condition of her probation was that she could not be around any minors without the supervision of an adult who was aware of her criminal history and who had been approved by her probation officer prior to any visits.

In February 1999, the juvenile court entered an order extending DFACS’s custody of the children for 12 more months. The order also authorized DFACS to change the goal of its case plan from reunification to termination of parental rights. B. J. did not appeal the order.

In June 1999, DFACS filed a petition to terminate B. J.’s parental rights. In February 2000, with B. J.’s agreement, the juvenile court entered an order extending DFACS’s custody of her children for six months.

In April 2000, the court heard the termination petition. B. J.’s DFACS caseworker testified that B. J. had never complied with the requirements of the reunification case plan. She had neither maintained steady employment nor completed counseling. Another caseworker testified that B. J. interacted with her children very little during her visits with them and was unable to control them. This caseworker further testified that A. M. W. said that her mother “always called me stupid and crazy” and that A. M. W. had numerous behavioral problems and had threatened to kill herself. Likewise, a school social worker testified that A. M. W. had inappropriate “outbursts” following visits with her mother, and she opined that the visits were detrimental to the child.

B. J. testified that she had not worked since October 1999 and was dependent upon her live-in boyfriend for support. She admitted that although she had been ordered to pay $90 a month to support her children, she had failed to make the payments. She also denied having done anything wrong in caring for her children. B. J.’s boyfriend testified that he was self-employed, did not work continuously, had a fluctuating income, and was sometimes “broke.”

Decided April 4, 2001.

Sutton & Associates, Berrien L. Sutton, Josephine E. Graddy, for appellant.

Thurbert E. Baker, Attorney General, Dennis R. Dunn, Deputy Attorney General, William C. Joy, Senior Assistant Attorney General, Shalen S. Nelson, Laura W. Hyman, Assistant Attorneys General, Helms & Helms, F. Shea Browning, Charles R. Reddick, Clayton A. Tomlinson, John C. Shelton, for appellee.

B. J. asserts that the juvenile court’s decision to terminate her parental rights was based on outdated evidence, rather than on her present condition, and that there was insufficient evidence that the children’s deprivation would likely continue or not be remedied. We disagree.

At the time of the hearing, B. J. was unemployed and wholly dependent for support on a man who had no regular income. She had not paid child support for her children, and she had failed to comply with the requirements of the DFACS case plan. In addition, she was serving a sentence of probation for cruelty to children which prohibited her from being around minor children without the permission of a supervising adult approved by her probation officer. B. J. admitted that she had failed to intervene in her husband’s abuse of the children, but denied that she had done anything wrong. Although she argues that the only reason she failed to protect her children was her fear of her husband, the evidence showed that she voluntarily returned to his home, with the children, contrary to the instructions of her DFACS caseworker. In short, there was ample evidence that B. J. was an unfit parent at the time of the termination hearing, that the children’s deprivation likely would continue if her rights were not terminated, and that termination was in the best interests of the children.

Judgment affirmed.

Smith, P. J., and Barnes, J., concur.

       See generally In the Interest of J. H., 244 Ga. App. 788, 791 (2) (536 SE2d 805) (2000).

       OCGA § 15-11-94 (a).

       OCGA § 15-11-94 (b) (4) (A).

       OCGA § 15-11-94 (a).

        In the Interest of J. L. K, 245 Ga. App. 860, 861 (539 SE2d 507) (2000).

       B. J.’s husband pled guilty to two counts of child molestation and two counts of aggravated child molestation and was sentenced to fifteen years in prison.

       See In the Interest of J. S., 232 Ga. App. 876, 879 (502 SE2d 788) (1998) (“[T]he juvenile court is not required to reunite the children with [the mother] in order to obtain current evidence of deprivation or neglect. [Cits.]”) (punctuation omitted); In the Interest of C. K., 242 Ga. App. 269, 271 (529 SE2d 395) (2000) (failure to comply with case plan demonstrates deprivation likely to continue).


text:
    A01A0653.
    PALMER v. THE STATE.
    (547 SE2d 404)
   Phipps, Judge.

Malcolm Palmer was convicted of the sale and possession of cocaine. He challenges the sufficiency of the evidence to support his conviction for the sale of cocaine, arguing that no sale occurred. He claims that the arresting officers had no authority to arrest him and that, as a result, the possession conviction must also be reversed. We find the evidence was sufficient to support Palmer’s conviction for the sale of cocaine and affirm.

On the evening of August 24, 1999, Gwinnett County Police Officers Prieto, Lockhard and Fulcher were working undercover and attempting to buy crack cocaine from street dealers in the vicinity of the Guest House Inn. When the officers saw Palmer walking down the street, Lockhard stopped the car and Prieto asked Palmer if he had a “50” (a $50 piece of crack cocaine). Palmer testified that he told Prieto that he knew someone down the street who would probably sell it to them. The officers gave Palmer a ride to the Home Town Inn, gave him $50 and watched him go into the building. When Palmer returned, he told the officers that his source had only $40 worth of crack cocaine. He handed Prieto the drugs and gave him back $10. When Palmer asked if they had a shooter (a crack pipe), the officers placed him under arrest. Prieto patted Palmer down and discovered a small quantity of crack cocaine in his pocket. Palmer testified that his source had given it to him when he bought the cocaine for the officers.

Palmer’s challenge to the sufficiency of the evidence must fail. The officers asked Palmer for $50 worth of crack cocaine; Palmer took their money and delivered the drugs to them. Thus, a drug sale was consummated between Palmer and the officers.

Given our holding that a sale of drugs did occur, for which the officers were authorized to arrest Palmer, we need not address Palmer’s challenge to his possession conviction on the ground that the officers had no authority to arrest him.

Judgment affirmed.

Smith, P. J., and Barnes, J., concur.

Decided April 4, 2001.

Sharon L. Hopkins, for appellant.

Daniel J. Porter, District Attorney, R. Keith Miles, Assistant District Attorney, for appellee.

        Lawrence v. State, 227 Ga. App. 70, 72 (3) (487 SE2d 608) (1997); see Robinson v. State, 164 Ga. App. 652, 653-654 (1) (297 SE2d 751) (1982) (a sale of drugs is complete when the seller delivers the drugs to the feigned buyer); see also Clay v. State, 232 Ga. App. 541 (1) (502 SE2d 267) (1998).


author: Ruffin, Judge.

text:
    A00A2545.
    HAWKINS v. THE STATE.
    (546 SE2d 280)
   Ruffin, Judge.

A jury found Dennis Hawkins guilty of burglary. Hawkins appeals, challenging the sufficiency of the evidence and the trial court’s failure to instruct the jury on the lesser included offense of criminal trespass. Finding the evidence sufficient and no error in the court’s instructions, we affirm.

1. In reviewing Hawkins’ challenge to the sufficiency of the evidence, we do not weigh the evidence or determine witness credibility. Instead, we review the evidence presented at trial in the light most favorable to support the jury’s verdict and determine whether this evidence is sufficient to authorize a rational trier of fact to find Hawkins’ guilty of each element of the charged offense beyond a reasonable doubt.

Viewed in this light, the evidence shows that at approximately 9:45 p.m. on February 22,1999, Karen Smith, a resident of Sunchase Apartments, was walking her dog in the apartment complex. During her walk, Smith saw a man, later identified as Hawkins, exiting the apartment complex management office. Smith testified that Hawkins “came out of [the] sliding glass door [of the management office] and he was messing with the lock on the maintenance man’s compartment.” Because Smith knew that the office closed at 5:00 p.m. and that Hawkins was not the maintenance man, his activities aroused her suspicions. Smith went upstairs to her apartment, which overlooked the office, called the police, reported the incident, and described Hawkins’ appearance.

Two officers arrived shortly thereafter and saw Hawkins walking away from the office building. When the officers ordered Hawkins to stop, he fled. After chasing Hawkins for two blocks, the officers took him into custody. The officers brought Hawkins back to Smith, who identified him as the man she saw leaving the manager’s office and breaking into the maintenance closet.

Upon examining the manager’s office, the officers discovered that a window was broken. When the assistant apartment manager arrived, she found that several doors around the office had been opened, that a television set had been moved, and that someone had attempted to remove the cable wire. In addition, a vacuum cleaner had been removed from a closet. At trial, the assistant manager testified that when she left the office at 5:00 that afternoon, the office doors were locked and no windows were broken. She also stated that Hawkins was not authorized to be in the office that evening. Based on this evidence, the jury found Hawkins guilty of burglary.

Under Georgia law, “[a] person commits the offense of burglary when, without authority and with the intent to commit a felony or theft therein, he enters or remains . . . within any . . . building.” Here, Hawkins asserts that “[t]here is absolutely no evidence that places [him] inside the management office.” This assertion, however, ignores Smith’s unequivocal testimony that she saw Hawkins exit the office, and “the testimony of a single witness is generally sufficient to establish a fact.”

Hawkins also asserts that the evidence was purely circumstantial and did not exclude every reasonable hypothesis that the burglary was committed by someone else. Again, Hawkins ignores Smith’s testimony that she saw him in the manager’s office, and the assistant manager testified that he did not have authority to be there. This is direct evidence that immediately points to two essential elements of the charged offense: (1) whether Hawkins entered the building and (2) whether he had authority to do so.

Even if we characterize the evidence as circumstantial, Georgia law requires only that the proved facts exclude reasonable hypotheses that the crime could have been committed by someone else. Questions of reasonableness are generally decided by the jury, and we will not disturb the jury’s finding of guilt unless it is unsupportable as a matter of law. In addition to the evidence discussed above, the jury was also authorized to consider evidence that Hawkins fled from the officers in evaluating his consciousness of guilt. Considering this evidence, we conclude that it is sufficient to authorize a rational trier of fact to find Hawkins guilty of burglary beyond a reasonable doubt.

Decided February 19, 2001

Reconsideration dismissed April 5,2001.

John P. Cannon, for appellant.

Dennis Hawkins, pro se.

Kenneth B. Hodges III, District Attorney, Leisa Meadows, Assistant District Attorney, for appellee.

2. Hawkins also asserts that the trial court erred in failing to charge the jury on the lesser included offense of criminal trespass. The record, however, discloses that Hawkins never made such request, written or otherwise. In the absence of a written request, the trial court did not err in failing to charge the jury on the lesser included offense of criminal trespass.

Judgment affirmed.

Andrews, P. J., and Ellington, J., concur.

        See Russell v. State, 230 Ga. App. 546, 549 (4) (497 SE2d 36) (1998).

       See Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

       OCGA § 16-7-1 (a).

       (Punctuation omitted.) Jones v. State, 243 Ga. App. 374, 375 (1) (533 SE2d 437) (2000).

       See Underwood v. State, 221 Ga. App. 93, 94 (1) (470 SE2d 699) (1996) (discussing standard of proof when State’s case is based entirely on circumstantial evidence).

       See OCGA § 24-1-1 (3) (defining direct evidence as “evidence which immediately points to the question at issue”).

       See OCGA § 16-7-1 (defining burglary); Freelove v. State, 229 Ga. App. 310, 311 (494 SE2d 72) (1997) (enumerating the essential elements of burglary as “(1) entering the building of another; (2) without authority; (3) with the intent to commit a theft therein”).

       See OCGA § 24-4-6; Underwood, supra at 94.

       See id.

       See Jackson v. State, 239 Ga. App. 77, 81 (1) (519 SE2d 746) (1999).

       See Jackson v. Virginia, supra.

       See Underwood, supra at 95 (stating that criminal trespass is a lesser included offense of burglary).

       See id.; Foster v. State, 218 Ga. App. 569, 570 (3) (462 SE2d 455) (1995).


author: Blackburn, Chief Judge.

text:
    A01A0469.
    PEREZ v. THE STATE.
    (546 SE2d 564)
   Blackburn, Chief Judge.

Following a jury trial, Eduardo Perez appeals his conviction for trafficking amphetamines, contending that the evidence was insufficient to support the verdict. For the reasons set forth below, we affirm.

On appeal the evidence must be viewed in the light most favorable to support the verdict, and [Perez] no longer enjoys a presumption of innocence; moreover, an appellate court determines evidence sufficiency and does not weigh the evidence or determine witness credibility. The verdict must be upheld if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.

(Punctuation omitted.) Barber v. State See Jackson v. Virginia.

Decided March 8, 2001

Reconsideration dismissed April 5, 2001.

Rodney L. Mathis, for appellant.

Eduardo Perez, pro se.

T. Joseph Campbell, District Attorney, Sharon M. Fox, Rebecca B. Paris, Assistant District Attorneys, for appellee.

Viewed in this light, the record shows that members of the Gordon County Police Department set up a drug buy from Andres Carranza. Carranza, who was Perez’s roommate at the time, then asked Perez if he would deliver a package for him in return for $500. Perez agreed to make the delivery, and, although he apparently did not discuss the contents of the package with Carranza, Perez stated that he knew that the package contained illegal drugs. Perez also testified that he was present when Carranza hid the package behind the stereo of the car he drove to the place of delivery.

At the delivery point, Gordon County police officers apprehended Perez and, with his permission, searched his car. The police discovered more than 400 grams of methamphetamine. Later, Perez admitted to his agreement with Carranza to deliver this package.

This evidence amply supports the jury’s verdict in this case. See Jackson, supra. And, Perez’s argument that he was just an innocent delivery man does not change this result. Perez’s own testimony makes it clear that he knew the nature of the contraband contained in the package. As such, he had the intent to deliver illegal drugs, and his conviction must stand.

Judgment affirmed.

Pope, P. J., and Mikell, J., concur.

        Barber v. State, 235 Ga. App. 170 (509 SE2d 93) (1998).

        Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).


author: Pope, Presiding Judge.

text:
    A00A1887.
    JOHNSON v. THE STATE.
    (546 SE2d 922)
   Pope, Presiding Judge.

Defendant Scott Richard Johnson was found guilty of DUI following a bench trial. He appeals, contending the trial court erred in denying his motion to suppress and that the evidence was insufficient to support his conviction.

The arresting officer testified that he was traveling eastbound on Highway 54 at Shakerag Hill in Fayette County when he observed Johnson change lanes three times without signaling. The officer testified that there were approximately three to four cars on the road, including his car, at that time. The officer further testified, “the lane changes seemed very fast as he was driving, coming up behind the car and going into the other lane without signaling.” The officer activated his blue lights, and Johnson pulled into a shopping center. The officer testified that he initially talked with Johnson through the open driver’s window of Johnson’s car and that he could smell a very strong odor of an intoxicating beverage coming from Johnson’s breath and person. The officer asked Johnson if he had been drinking, and Johnson responded he had consumed three glasses of wine. The officer testified that Johnson’s speech was slurred, his eyes were bloodshot, his pupils were dilated, his face was flush, but that his clothing was orderly. Johnson informed the officer he had a sore throat, and the officer noted that Johnson’s speech was slow and “kind of crackly.” The officer testified Johnson had no difficulty exiting his vehicle, but that his “turning was hesitant.”

Based on these observations, the officer asked Johnson to perform several field sobriety tests. The officer testified that Johnson’s performance indicated to him that Johnson was under the influence of intoxicants. Johnson, after some difficulty, blew into an alcosensor, which registered positive for alcohol. The officer testified he then placed Johnson under arrest because it was his opinion that Johnson was under the influence to the extent that he was a less safe driver. Johnson refused to take a state-administered test to determine alcohol concentration in his blood or urine.

1. Johnson argues the trial court erred in denying his motion to suppress, contending that the stop of his vehicle was not authorized based upon his failure to signal when changing lanes. In support of this contention, Johnson cites Bowers v. State, 221 Ga. App. 886 (473 SE2d 201) (1996) (physical precedent only); Clark v. State, 208 Ga. App. 896 (432 SE2d 220) (1993) (physical precedent only), and similar cases in which we held the stop illegal because traffic or road conditions were such that a signal was not required to change lanes or to turn “with reasonable safety,” as provided in OCGA § 40-6-123. However, in this case the arresting officer testified that he observed Johnson change lanes three times without signaling and that, including the officer’s car, there were three or four cars on the roadway when he made his observations. Moreover, the officer testified that the lane changes were abrupt. We agree with the state that these facts distinguish those cases in which a lane change or turn could be made with reasonable safety without a signal and that the officer’s testimony indicates instead that the lane changes here were not made with reasonable safety. Huynh v. State, 239 Ga. App. 62, 63 (1) (518 SE2d 920) (1999); State v. Reddy, 236 Ga. App. 106, 107-108 (1) (511 SE2d 530) (1999); see also Roberson v. State, 230 Ga. App. 179, 180 (495 SE2d 643) (1998). And when the arresting officer observes the defendant violating even a relatively minor traffic law, a motion to suppress arguing that the stop was pretextual will fail. See, e.g., State v. Reddy, 236 Ga. App. at 109 (2).

2. Johnson also challenges the sufficiency of the evidence, arguing there was no evidence that he was under the influence to the extent that he was a less safe driver. Johnson argues that the only evidence of intoxication was the officer’s testimony that he smelled alcohol and Johnson’s admission that he had consumed several glasses of wine. Johnson argues further that the officer’s observations about his speech and appearance either were refuted by the videotape of the stop or were insufficient to indicate he was driving less safely because of alcohol impairment. Likewise, Johnson argues that the videotape does not support the trial court’s finding that Johnson exhibited confusion about exiting his vehicle or that he stumbled as he was exiting his vehicle. Johnson additionally urges that the results of the field sobriety tests should be disregarded because the videotape demonstrates that the officer did not properly conduct the tests.

We agree with Johnson that the videotape refutes the officer’s testimony that his speech was slurred and demonstrates that his motor skills were not grossly impaired. And it is true, as Johnson argues, that we have previously held that evidence that a driver has consumed alcohol earlier in the evening, standing alone, does not prove that he was under the influence to the extent that he was a less safe driver. Davis v. State, 206 Ga. App. 647, 648 (426 SE2d 267) (1992); Clay v. State, 193 Ga. App. 377, 378-379 (387 SE2d 644) (1989). However, in this case there is additional evidence of Johnson’s impairment.

First, Johnson’s refusal to take the state-administered chemical test was admissible as circumstantial evidence of his intoxication. See Kelly v. State, 242 Ga. App. 30, 33-34 (5) (528 SE2d 812) (2000); Lucas v. State, 234 Ga. App. 534, 535 (1) (507 SE2d 253) (1998). And, although the videotape refuted the officer’s testimony that Johnson’s speech was slurred, the officer also testified that Johnson’s eyes were bloodshot, his pupils dilated, and his face was flushed. Additionally, the officer testified about the manner in which Johnson was driving, specifically that he came up fast behind other cars and abruptly passed them.

Evidence as to the manner of driving . . . may be taken into account where there is evidence that the defendant has been drinking, for the purpose of determining whether or not his manner of driving shows him to have been affected by the intoxicant to the extent that he drives less safely and carefully than he might otherwise have done. . . .

Decided March 21, 2001

Reconsideration denied April 6, 2001

William C. Head, for appellant.

Steven L. Harris, Solicitor-General, Lura H. Landis, Assistant Solicitor-General, for appellee.

(Citation and punctuation omitted.) Duggan v. State, 225 Ga. App. 291, 293 (1) (483 SE2d 373) (1997).

Moreover, we are not persuaded, as Johnson urges, to entirely discount his performance on the field sobriety tests. Although there were, as the trial court noted, “deviations from protocol” in the manner in which the field sobriety tests were conducted, the videotape clearly shows that Johnson failed on several occasions to follow the officer’s instructions on how to perform the tests. For example, the officer clearly and repeatedly instructed Johnson to hold his hands at his side, but Johnson instead placed his hands behind his back. Johnson also failed to start and stop the tests in accordance with the officer’s instructions. And the arresting officer testified that failure to follow instructions during the field sobriety tests is an indicator that the person performing the tests is under the influence of intoxicants.

The evidence presented at trial was sufficient to authorize the trier of fact to find that Johnson was under the influence to the extent that it was less safe for him to drive under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). Kelly v. State, 242 Ga. App. at 31 (1); Lucas v. State, 234 Ga. App. at 535-536 (1); Duggan v. State, 225 Ga. App. at 293-294 (1). Compare Brinson v. State, 232 Ga. App. 706 (503 SE2d 599) (1998) (physical precedent only).

Judgment affirmed.

Miller and Mikell, JJ., concur.

       Johnson’s additional argument that the stop was pretextual because the videotape shows the arresting officer did not signal when he was changing lanes while transporting Johnson to the police station is also unavailing. At trial, evidence concerning the officer’s driving was deemed irrelevant, and this ruling has not been enumerated as error on appeal.


text:
    A00A2558.
    WALDEN et al. v. SMITH.
    (546 SE2d 808)
   Pope, Presiding Judge.

John and Marilyn Walden sued Conley Smith for breach of contract and fraud, alleging that Smith had misrepresented a material term in a lease/purchase agreement. Asserting several defenses, Smith moved for summary judgment. The trial court determined that the Waldens were estopped from pursuing claims for fraud or breach of contract due to their own conduct in failing to'repudiate the contract after discovering the truth about the purported misrepresentation. Deciding that the Waldens’ claims were legally foreclosed, the trial court awarded summary judgment to Smith. We agree that Smith was entitled to judgment as a matter of law.

On December 2, 1994, the Waldens and Smith executed a written lease/purchase agreement for a house and 18 acres in Dade County. The term was for 26 months at $400 per month. The purchase price was $79,995 with the Waldens receiving credit for rent paid during the lease. At the end of the 26-month period, on February 1, 1997, absent default, the Waldens would “have the exclusive right and option to purchase the property. . . .” The contract contained a merger clause as well as a clause precluding any oral modification. The final paragraph of the contract stated: “[t]his document sets out the full and complete agreement of the parties, and any other agreements or amendments hereto not in writing shall be null and void.”

Near the expiration of the twenty-six months, a third party expressed interest in purchasing about 1.92 acres on one corner of the property. The Waldens had no objection to that sale, so Smith sold that section to General Oliver Bryant and his wife, Penny M. Bryant. The deed for that sale was recorded on December 26, 1996. When the lease term ended, the Waldens were unable to buy the property because they did not have sufficient funds. It is undisputed that after February 1, 1997, when the contract expired, Smith and the Waldens did not enter into a new written agreement to amend, extend, or alter any terms of the contract.

The Waldens continued to pay $400 per month in rent and to live in the house on the property. In September 1998, about 18 months after the expiration of the lease/purchase contract, John Walden told Smith that he had inherited some money from a recently deceased aunt and wanted to buy the property. Smith agreed to sell the property for $54,415, informing Walden he would give a $10,000 credit for the acreage sold to the Bryants and a $15,580 credit for the rent paid. In actuality, as Walden explained in his deposition, he had a side agreement with the Bryants to borrow $54,000 from them, buy the property, then convey it to them. Four days after purchasing the property from Smith, Marilyn Walden sold it to the Bryants for $73,594 with the Waldens retaining timber rights. John Walden later sold the timber for more than $20,000.

When Walden recorded the warranty deed after the sale, he then discovered that the Bryants had paid $50,000 for the corner portion and not $10,000 as Smith had allegedly indicated to him. Walden believed that Smith had agreed to “knock off” or reduce the sales price by whatever amount the Bryants paid for the corner. Based on that premise, the Waldens brought suit.

1. The Waldens contend that the trial court erred in granting summary judgment. They urge that the conduct of the parties established a waiver of the written modification requirement in the agreement. Under their theory, by continuing to accept their monthly rental payments, and by later giving them credit toward the purchase price for those payments, Smith evidenced his agreement to an oral extension of the term of the lease/purchase contract.

Contracts for the sale of land or an interest in land must be in writing to comply with the Statute of Frauds. OCGA § 13-5-30 (4). This rule applies equally to options to purchase land, Neely v. Sheppard, 185 Ga. 771, 775 (196 SE 452) (1938). “To comply with the statute of frauds, a writing must be complete in itself, leaving nothing to rest in parol.” Pettit v. Gray, 211 Ga. App. 439 (439 SE2d 673) (1993). When a contract is required by the Statute of Frauds to be in writing, any modification of the contract must also be in writing. Johnson v. Ashkouti, 193 Ga. App. 810 (1) (389 SE2d 27) (1989). A contract for the sale of land that is partly in writing and partly in parol is unenforceable by reason of the Statute of Frauds. Stonecypher v. Ga. Power Co., 183 Ga. 498, 502 (2) (189 SE 13) (1936).

Although the Waldens claim that the written terms were changed by verbal agreement, unless an oral modification falls within an exception to the Statute of Frauds, such modification is ineffective. White v. Orton Indus., 224 Ga. App. 342, 343 (480 SE2d 620) (1997). Here, the purported oral modification, an agreement to reduce the purchase price by the amount paid by the Bryants, was never reduced to writing and never became a part of the lease/ purchase agreement. Moreover, even if the modified agreement had been enforceable, it expired on February 1, 1997. After it expired, no enforceable contract existed — Smith could not compel the Waldens to purchase his property and the Waldens could not force him to sell it. Yet, under the Waldens’ theory, Smith remained obligated to sell the property to them for $79,995 less $50,000 and less the total paid in rent, on whatever date they ultimately decided to buy the property. This outcome contravenes fundamental principles of contract law as well as the Statute of Frauds. OCGA §§ 13-3-1; 13-5-30 (4).

-- Nor does any exception to the Statute of Frauds change this result. See Stonecypher, 183 Ga. at 503. When part performance of an oral agreement is relied upon to establish an exception to the Statute of Frauds, such part performance must be of an essential element of the contract sought to be enforced and of a character which would render it a fraud on the plaintiff if the defendant refused to comply. White, 224 Ga. App. at 344. Here, the Waldens merely paid the customary rent. They made no improvements to the property and did nothing to enhance its value. See Norris v. Downtown LaGrange Dev. Auth., 151 Ga. App. 343, 344 (259 SE2d 729) (1979).

There was no evidence to show that Smith and the Waldens entered a written agreement as to the terms for the sale of the remaining realty after the sale of the corner portion. Absent a complete and binding agreement with respect to all essential terms, each party may freely withdraw its bid or proposition. OCGA § 13-3-2. Since a complete and legally sufficient contract did not exist, Smith was entitled to judgment as a matter of law. Firstline Corp. v. Valdosta-Lowndes County Indus. Auth., 236 Ga. App. 432, 434 (1) (511 SE2d 538) (1999).

Nor can the Waldens’ fraud claim survive summary judgment, since they rely on a faulty premise to support that claim, i.e., that Smith remained under a legal obligation to sell the property to them. Even with that assumption in place, the Waldens failed to establish a prima facie case of fraud. The tort of fraud requires proof of five elements: false representation, scienter, intent to induce another to act or to refrain from acting, justifiable reliance, and damage. Smalls v. Blueprint Dev., 230 Ga. App. 556, 559 (1) (497 SE2d 54) (1998). But the Waldens can show neither justifiable reliance nor damage. When a buyer could have protected himself by the exercise of due diligence, he cannot show justifiable reliance on his part. Simmons v. Pilkenton, 230 Ga. App. 900, 901 (2) (497 SE2d 613) (1998). “ ‘The law does not afford relief to one who suffers by not using the ordinary means of information, whether the neglect is due to indifference or credulity.’ ” Real Estate Intl. v. Buggay, 220 Ga. App. 449, 452 (2) (469 SE2d 242) (1996). Although due diligence is generally a jury question, an exception occurs when a plaintiff cannot offer evidence that he exercised his duty of due diligence to ascertain the truth and to avoid damage. Wender & Roberts, Inc. v. Wender, 238 Ga. App. 355, 360 (4) (518 SE2d 154) (1999).

Here, the actual amount paid by the Bryants was a matter of public record and readily ascertainable upon inquiry. After the Bryants declined to reveal the purchase price, the Waldens could have easily obtained this information by examining public documents before buying the property. See Hill v. Century 21 Max Stancil Realty, 187 Ga. App. 754, 756 (2) (371 SE2d 217) (1988). This they failed to do. See Fowler v. Overby, 223 Ga. App. 803, 804 (1) (478 SE2d 919) (1996). Because the Waldens did not meet their burden of presenting evidence to demonstrate justifiable reliance, Smith was entitled to judgment as a matter of law. Simmons, 230 Ga. App. at 901 (1); Hill, 187 Ga. App. at 756 (2).

Decided March 2, 2001 —

Reconsideration denied April 6, 2001.

Hatcher, Johnson, Meaney & Gothard, Ross L. Hatcher III, for appellants.

Farrar & Corbin, Christopher L. Corbin, for appellee.

2. In light of this holding, other issues raised in this appeal are moot.

Judgment affirmed.

Miller and Mikell, JJ, concur.

       Smith testified that he had agreed to loan $197,000 to the Bryants to enable them to purchase the land and construct a convenience store. Smith testified that the loan was for $247,000 with the Bryants making a $50,000 down payment.

       Including the amount paid in rent, the Waldens paid $64,800 for property which they sold four days later for $73,594 and for which they also received an additional $20,000 from the sale of timber.


author: SMITH, Presiding Judge.

text:
    A01A0508.
    PIZZA K, INC. v. SANTAGATA.
    (547 SE2d 405)
   SMITH, Presiding Judge.

This appeal involves the issue of a franchisor’s liability for the alleged negligence of a pizza delivery driver making a delivery on behalf of a franchisee. We conclude that the franchisor did not have sufficient authority to control the time, manner, and method of executing the franchisee’s work, so as to require a finding that the franchisee was an agent or alter ego of the franchisor. We therefore reverse the trial court’s denial of the franchisor’s motion for summary judgment.

Pizza K, Inc. (“Pizza K”) is a business that franchises pizza takeout and delivery facilities. At the time of the incident here, Tom Huang was the “franchisee-owner” of a Pizza K franchise in the Brookhaven area of Atlanta (“Brookhaven”). Lee Sun was the “owner/ general manager,” and Carl Hartsfield was a delivery driver. While making a delivery, Hartsfield was involved in a collision with David Santagata, and Santagata brought suit against Hartsfield, Pizza K, Huang, and Sun. Pizza K moved for summary judgment on the ground that it was not vicariously liable for Hartsfield’s alleged negligence because it did not exercise sufficient control over Brookhaven to render Brookhaven its agent. The trial court denied the motion, finding that the franchise agreement gave Pizza K “practically unlimited potential authority” or control over Brookhaven. This appeal ensued after we granted Pizza K’s application for interlocutory appeal.

It is well settled that to impose liability on a franchisor for the acts of a franchisee, a plaintiff must show that the franchisor has obligated itself to pay the franchisee’s debts or that the franchisee “is not a franchisee in fact but a mere agent or alter ego of the franchisor.” (Citations and punctuation omitted.) McGuire v. Radisson Hotels Intl., 209 Ga. App. 740, 742 (1) (435 SE2d 51) (1993). It is undisputed that Pizza K did not obligate itself to pay the debts of the Brookhaven Pizza K. In fact, the franchise agreement expressly prohibits Pizza K from assuming the debts of Brookhaven. In this case, therefore, Pizza K’s vicarious liability must depend on whether Brookhaven was merely an agent or alter ego of Pizza K.

The historical test applied by courts in this state to determine whether an agency relationship exists is “whether the contract gives, or the employer assumes, the right to control the time and manner of executing the work, as distinguished from the right merely to require results in conformity to the contract.” (Citation and punctuation omitted.) McGuire, supra. In applying this test, we must be mindful of the special relationship created by a franchise agreement, for “a franchisor is faced with the problem of exercising sufficient control over a franchisee to protect the franchisor’s national identity and professional reputation, while at the same time foregoing such a degree of control that would make it vicariously liable for the acts of the franchisee and its employees.” (Citations and punctuation omitted.) Id.

The detailed agreement here requires Brookhaven to operate its business “in accordance with the standards, specification and procedures set forth in” Pizza K’s operations manual. It requires Brookhaven to use products and equipment prescribed by Pizza K and to require its employees to wear certain uniforms. Further, the agreement provides for periodic inspections “for the purpose of ascertaining whether [Brookhaven] is operating the facility in accordance with the terms of” the agreement and gives Pizza K the right to require immediate termination of any employee who causes the facility to fail an inspection. With respect to Brookhaven’s hours of operation, the agreement provides that Brookhaven “shall remain open for business during reasonable business hours to be determined by” Pizza K and forbids the solicitation of personnel from other Pizza K franchises.

The agreement also requires that Brookhaven pay weekly flat royalty and advertising fees to Pizza K and provides some limited requirements regarding advertising measures. We also note that the agreement recites that Brookhaven is to “adhere to” information provided in the operations manual concerning “bookkeeping forms, profit and loss, balance sheet and cost control procedures,” and Pizza K has the right under the agreement to examine Brookhaven’s records “at all reasonable times.” The agreement further provides for training of a franchisee to operate a Pizza K facility, to be given at a time and place determined by the franchisor. The training usually lasts about one week and is conducted by Pizza K’s president, Greg Granville. According to Granville, after completion of the training, franchisees “are pretty much on their own with the exception of. . . a monthly inspection for quality control.”

The franchise agreement in this case obviously contains specific and even strict requirements concerning operation of the franchise. But we cannot conclude that the agreement renders Brookhaven a mere alter ego or agent of Pizza K or that it gives Pizza K “unlimited potential authority” over Brookhaven’s daily operations. While it provides for periodic inspections and termination of employees in limited circumstances and requires that Brookhaven operate during reasonable business hours, Pizza K is not authorized under the agreement to exercise supervisory control over the daily activities of Brookhaven’s employees. See Baldino’s Giant Jersey Subs v. Taylor, 216 Ga. App. 467 (454 SE2d 599) (1995).

Notably, the agreement makes no provisions for Pizza K’s supervisory control over individuals hired by Brookhaven to serve as delivery drivers. In McGuire, supra, the plaintiff was injured after being escorted from a hotel bar by security. Among other reasons for concluding that the franchisee was not an agent of the franchisor, we found no suggestion in franchise documents giving the franchisor supervisory control over individuals hired to provide lounge security. Id. at 743. Similarly, the agreement here contains no guidelines concerning the hiring or firing of drivers. And neither the agreement nor other evidence in the record suggests that Pizza K exercised any authority or control over “the time, manner, and method of their performance.” Frey v. Pepsico, 191 Ga. App. 585, 586 (1) (382 SE2d 648) (1989). In fact, Granville testified that Pizza K had no agreement with any drivers and that its only agreement was with the franchisee. He also testified that he never had discussions with any franchisees as to whether delivery drivers would be hired as employees or subcontractors. His only concern with the drivers was that they “follow the laws of the [S]tate of Georgia.”

Also, we cannot conclude that Pizza K’s authority to require the use of certain bookkeeping forms, to conduct monthly inspections, and to require termination of employees causing the facility to fail the inspections amounted to day-to-day supervisory control over Brookhaven, for it seems clear that this authority simply served as a means of achieving a desired level of uniformity and quality within the system of Pizza K franchises. Frey, supra. As stated in Schlotzsky’s, Inc. v. Hyde, 245 Ga. App. 888 (538 SE2d 561) (2000), reserving the right to inspect or evaluate a franchisee’s compliance with the franchisor’s “standards and to terminate the franchise for noncompliance is not the equivalent of retaining day-to-day supervisory control of the franchisee’s business operations as a matter of law. [Cits.]” (Emphasis omitted.) Id. at 890. Similarly, requiring franchisees to purchase foodstuffs from certain suppliers helped ensure uniformity throughout the Pizza K system and helped serve as a means of acquiring volume discounts. The agreement at issue here simply served as a means of ensuring conformance with a certain level of quality and protecting Pizza K’s professional reputation, and the trial court erred in denying Pizza K’s motion for summary judgment.

Decided April 6, 2001.

Christopher J. McFadden, Aryeh S. Bondy, for appellant.

Gambrell & Stolz, Irwin W. Stolz, Jr., Steven G. Hall, Linda A. Klein, Stevens & McClung, James B. McClung, for appellee.

Judgment reversed.

Barnes and Phipps, JJ, concur.

       Hartsfield testified that he was an independent contractor.

       Although one judge concurred in judgment only in McGuire, that case has been cited with approval in subsequent cases. See, e.g., Schlotzsky’s, Inc. v. Hyde, 245 Ga. App. 888, 889 (538 SE2d 561) (2000); Anderson v. Turton Dev., 225 Ga. App. 270, 274 (483 SE2d 597) (1997); Baldino’s Giant Jersey Subs v. Taylor, 216 Ga. App. 467 (454 SE2d 599) (1995).


text:
    A00A2298.
    SMITH v. THE STATE.
    (547 SE2d 598)
   Phipps, Judge.

A jury found Michael Lamar Smith guilty of burglary, rape, and sexual battery in connection with his neighbor and guilty of multiple counts of child molestation and cruelty to children in connection with his grandson. Smith contends that the trial court should have granted his motion to sever the trial of the offenses relating to his neighbor from those relating to his grandson. Because the offenses relating to the neighbor and those relating to the grandson were unrelated to each other, we agree and reverse.

On April 30, 1997, Smith’s neighbor stayed home from work because she had reinjured a recent appendectomy incision. She was taking pain medication that made her very sleepy and was wearing only a flannel shirt and panties. Two friends came to check on her during their lunch hour, and she left the front door open so that she would not have to get out of bed to let them in. Shortly after her friends left, she heard her front door open again. She walked out of her bedroom and saw Smith, who lived across the street, standing in her house. He threw her on the bed and forced her to have sexual intercourse.

After Smith was arrested for the attack on his neighbor, C. M. became concerned because her four-year-old son, Z. M., who is Smith’s grandson and who regularly visited Smith, had an unusual rash on his buttocks and had been complaining of stomach pains. She asked Z. M. whether anyone had ever touched his “private parts.” Z. M. told her that Smith had touched his “Tilíy-Whack.” A nurse who examined Z. M. noticed a wide, deep fissure between his anus and scrotum and concluded that the injury was not recent.

With respect to his neighbor, Smith was charged with burglary, rape, and aggravated sexual battery. With respect to Z. M., he was charged with two counts of child molestation, two counts of aggravated child molestation, and two counts of cruelty to children. Smith moved to sever trial of the offenses relating to his neighbor from those relating to Z. M., but the trial court denied his motion. The jury found Smith guilty on all counts.

1. We review a trial court’s denial of a motion to sever the trial of separate charges for an abuse of discretion. If offenses have been joined for trial

on grounds that they are of the same or similar character, and are part of a single scheme or plan, or are based on the same conduct or on a series of acts connected together or constituting parts of a single scheme or plan, the trial court, in its discretion, should grant a severance of offenses if it is deemed appropriate to promote a fair determination of the defendant’s guilt or innocence of each charge. . . . [Cit.]

We also have held that the trial court does not abuse its discretion by denying a motion to sever if the evidence of one offense would be admissible as a similar act in the trial of the other offense.

The charges in this case arose from two unrelated transactions. In one, Smith allegedly raped an adult female after breaking into her home. In the other, he allegedly molested his four-year-old grandson, who was visiting him. The two transactions happened at different locations on different dates and involved different victims and different witnesses. There was no evidence that the transactions were part of a single crime spree or that they were carried out in a similar manner.

The State argues that both transactions were attacks upon victims that Smith knew to be especially weak and vulnerable — the . neighbor, because she was recovering from major surgery, and Z. M., because he was a young child and Smith’s relative. Although the neighbor testified that Smith knew she had undergone surgery several weeks earlier, she also testified that she had returned to work before the rape, and there is no evidence that Smith knew she had reinjured her incision and was recuperating on the day of the attack. Without such evidence, the only similarity between the two transactions is that both were of a sexual nature. This is too tenuous a connection to support joinder of the offenses. Likewise, evidence of the attack on the neighbor would not be admissible as a similar act in a trial related to the molestation of Z. M., and vice versa. Smith’s rape of an adult woman would not show that he had a lustful disposition toward children, and his molestation of a child would not show that he had a bent of mind to rape an adult. For these reasons, the trial court abused its discretion by denying Smith’s motion to sever.

To warrant reversal, Smith must show that the trial court’s failure to sever the trial of the offenses was harmful. He argues that the joint trial of the charges caused a “smear effect” that unfairly disadvantaged him at trial. Again, we agree. As Smith was convicted on all counts, we cannot dismiss the possibility that the jury was unable to consider each transaction separately on its own merits. Moreover, the State presented evidence of Smith’s previous molestations of three other minors. Such evidence likely would not have been admissible at a separate trial on the charges pertaining to his adult neighbor, for the reasons discussed above.

Because the trial court erred in denying Smith’s motion to sever, and because we cannot conclude that the error was harmless, we must reverse his convictions. As some of Smith’s remaining claims of error are likely to recur on remand, we address them also.

2. Count 8 of the indictment charged Smith with first degree cruelty to children for “unlawfully, and maliciously caus[ing] cruel and excessive physical pain to [Z. M.], a child under 18 years of age, by touching the penis of the child.” Smith filed a “motion to quash/ demurrer” with respect to this count, claiming that it failed to put him on notice of the crime with which he was charged. Specifically, Smith argued that “ ‘touching,’ unlike pinching, slapping, hitting, etc., does not by its very nature suggest the infliction of any sort of physical pain, nor is there any allegation of injury.” The trial court denied Smith’s motion on the ground that whether a touching rises to the level of physical pain is a jury question.

A defendant may challenge the substance of an indictment by general demurrer on the ground that it fails to charge him with a crime. In that case, the test of the sufficiency of the indictment “is found in the answer to the question: Can the defendant admit the charge as made and still be innocent? If he can, the indictment is fatally defective.” A defendant also may challenge the form of an indictment by special demurrer, alleging that the indictment fails to apprise him sufficiently of the charges against him. In that case, the indictment is sufficient if it “states the offense in the terms and language” of the relevant Code section or “so plainly that the nature of the offense charged may easily be understood by the jury.”

To the extent that Smith challenges the substance of the indictment, his challenge fails because Count 8 clearly alleges that he maliciously inflicted cruel and excessive pain on Z. M. Smith could not admit to this allegation and still be innocent.

To the extent that Smith challenges the form of the indictment, that challenge also fails. Count 8 states that Smith caused pain to Z. M. by touching his penis. While it is true that touching does not necessarily entail pain, it is clear from the charge as a whole that Smith was accused of touching Z. M.’s penis in such a manner as to inflict pain. The test is not whether the indictment “could have been made more definite and certain . . . but whether it contains the elements of the offense intended to be charged, and sufficiently apprises the defendant of what he must be prepared to meet. . . ,” The language in Count 8 meets that test. The trial court properly denied Smith’s motion to quash.

Moreover, Smith does not allege that he was misled to his prejudice by the indictment’s failure to specify exactly how Smith’s alleged touching of Z. M.’s penis caused pain. In the absence of prejudice, an asserted deficiency in the form of an indictment is not reversible error.

3. Smith contends that the trial court erred in several rulings related to one of the State’s similar transaction witnesses, D. J. H. T., who testified that Smith had molested her twenty-two years earlier, when she was eleven or twelve.

(a) Smith filed a motion seeking the disclosure of “the psychiatric and behavioral history” of D. J. H. T., asserting that she had a history of mental instability, psychiatric treatment, and institutionalization. It does not appear from the record that Smith ever attempted to subpoena such information from any third party. At a pre-trial hearing, the prosecutor stated in her place that the State possessed no psychiatric records pertaining to this witness. Smith contends that the trial court’s denial of his motion was error. However, the State cannot be ordered to produce what it does not have. Smith has not shown that the State, in fact, did possess the requested documents, and he has cited no authority for the proposition that the State has any obligation to obtain them from a third party. Accordingly, we find no error.

(b) The trial court allowed Smith to voir dire D. J. H. T. concerning her history of psychiatric problems and drug abuse. During the voir dire, she testified that she was “on full disability” due to various surgeries. Smith’s attorney sought details of the surgeries, and the prosecutor objected. The trial court sustained the objection, but allowed Smith’s attorney to ask her about the effects of any medications she was taking. Smith argues that the trial court erred in granting the prosecutor’s objections because D. J. H. T.’s physical problems were relevant to her “competency.” We disagree. Witnesses are presumed competent to testify and may be excluded only on grounds of “idiocy, lunacy, insanity, drunkenness, or infancy.” Smith fails to show how D. J. H. T.’s physical problems could have rendered her incompetent to testify. Accordingly, we find no abuse of discretion by the trial court.

(c) At the hearing on the admissibility of the State’s similar transaction evidence, Smith sought to present a rebuttal witness who, he claims, would have testified that D. J. H. T. had no physical problems, only mental ones. The trial court refused to allow the witness to testify at the hearing on the ground that the testimony sought to be introduced concerned D. J. H. T.’s credibility and not the admissibility of her testimony. However, the court ruled that Smith could impeach D. J. H. T.’s credibility at trial through rebuttal evidence and through cross-examination concerning her psychiatric treatment and drug problems. Smith argues that the trial court should have allowed the rebuttal witness to testify at the hearing, but he has shown no abuse of discretion.

4. Smith contends that the trial court erred with respect to another similar transaction witness, J. R. F., who testified that Smith fondled her and forced her to have sexual intercourse twelve years earlier, when she was ten years old. In 1987, a jury found Smith guilty of rape, statutory rape, child molestation, and cruelty to children in connection with J. R. F. Our Supreme Court reversed the conviction because the trial court improperly had excluded evidence that J. R. F. had previously made false accusations of sexual misconduct against other men. Smith apparently was not retried. In this case, the trial court allowed J. R. F. to testify about the incidents.

(a) Smith first asserts that J. R. F.’s testimony was “harmful and prejudicial” because of her history of making false accusations. But Smith was allowed a thorough cross-examination of her, and her credibility was a matter for the jury. We find no error in the admission of her testimony.

(b) Smith also argues that the trial court should have disqualified the district attorney, Timothy Madison, from prosecuting the case. Smith claims that Madison, who also prosecuted the 1987 case against him, was a potential witness in this case because J. R. F. recanted her testimony from the previous trial to Madison. The trial court did not disqualify Madison. Instead, the court ruled that Smith could question J. R. F. about the recantation and could call Madison as a witness if she denied it. On cross-examination, J. R. F. testified that she did not remember telling Madison that Smith had not molested her. However, as Smith never sought to call Madison as a witness, the disqualification issue is moot.

5. Smith’s remaining claims of error either are not likely to recur on remand or are deemed abandoned because they are not supported by argument or citation of authorities.

Judgment reversed.

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

Decided March 26, 2001

Reconsideration denied April 9,2001

Wayne L. Burnaine, for appellant.

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

        Houston v. State, 242 Ga. App. 300, 302 (2) (529 SE2d 431) (2000).

        Terry v. State, 259 Ga. 165, 168 (1) (377 SE2d 837) (1989).

        Rocha v. State, 234 Ga. App. 48, 53 (5) (506 SE2d 192) (1998).

       See Brown v. State, 230 Ga. App. 190,192 (1) (495 SE2d 858) (1998) (trial court should have severed two charges of theft by receiving stolen property where only similarity was that both charges involved auto theft); Booker v. State, 231 Ga. 598, 599 (1) (203 SE2d 194) (1974).

       See Bloodworth v. State, 173 Ga. App. 688, 689 (1) (327 SE2d 756) (1985); cf. Simpson v. State, 271 Ga. 772, 773-774 (1) (523 SE2d 320) (1999) (clarifying that evidence of defendant’s possession of sexually explicit materials is admissible in sex crimes case not to show defendant’s lustful disposition in general, but only if it shows his lustful disposition toward the activity with which he is charged or his bent of mind to engage in that activity).

       See Brown, supra at 193 (2).

        Dunbar v. State, 209 Ga. App. 97, 98 (2) (432 SE2d 829) (1993).

       (Citation and punctuation omitted.) Dennard v. State, 243 Ga. App. 868, 870 (534 SE2d 182) (2000).

       Id.

       OCGA § 17-7-54 (a).

       See OCGA § 16-5-70 (b) (“Any person commits the offense of cruelty to children in the first degree when such person maliciously causes a child under the age of 18 cruel or excessive physical or mental pain”).

       (Citations and punctuation omitted.) King v. State, 176 Ga. App. 137, 139 (2) (335 SE2d 439) (1985), rev’d on other grounds, Copeland v. White, 178 Ga. App. 644 (344 SE2d 436) (1986).

       Compare D’Auria v. State, 270 Ga. 499, 500 (1) (512 SE2d 266) (1999) (accusation that defendant committed sexual battery by making intimate contact with body parts of victim was deficient because it failed to identify which body parts and how they were touched).

        King, supra at 139-140.

       OCGA § 24-9-7 (a); see also Dorsey v. State, 206 Ga. App. 709, 713 (3) (426 SE2d 224) (1992).

       See Smith v. State, 259 Ga. 135 (377 SE2d 158) (1989).

       Id.

       See Lumsden v. State, 222 Ga. App. 635, 636-637 (2) (475 SE2d 681) (1996).

       See Court of Appeals Rule 27 (c) (2).


text:
    A00A2307.
    CHURCH OF THE NATIVITY, INC. v. WHITENER et al.
    (547 SE2d 587)
   Phipps, Judge.

This is a dispute over the ownership of an easement traversing a tract of land belonging to the Church of the Nativity, Inc. (“the Church”). The easement connects an adjacent roadway with another tract, owned by Michael and Glenda Whitener, that adjoins the Church’s property. The trial court ruled that the Whiteners have valid title to the easement and that the Church committed laches by failing to timely assert its claim to the land. The court entered an interlocutory injunction prohibiting the Church from obstructing the Whiteners’ use of the easement. The Church appeals, asserting that the court improperly granted complete relief to the Whiteners, that the Whiteners do not have a valid easement, and that the Church was not guilty of laches. Because the trial court did not abuse its discretion in issuing the injunction, we affirm.

From December 1968 to March 1974, the Protestant Episcopal Church of the Atlanta Diocese (“the Diocese”) owned both the six-acre tract that the Church now owns and the adjacent eighteen-acre parcel that the Whiteners now own. On March 29,1974, the Diocese executed a deed conveying the larger tract to Allstate Industries, Inc. and a deed conveying the smaller tract to the Church. The deed to Allstate stated that the conveyance included “an easement 40-feet in width (said easement to be used only as a public street or road after dedication as such by the City of Fort Oglethorpe, Georgia) leading from . . . South Cross Street to [Allstate’s tract] across the south 40 feet of the property of [the Church].” The deed to the Church did not mention this easement. Allstate’s deed was recorded on April 2,1974, and the Church’s deed was recorded two days later.

In 1976, Allstate conveyed a portion of its 18-acre tract to Robert and Louise Roberts via warranty deed, and in 1979, Allstate conveyed the remainder of the tract to the Robertses via a second warranty deed. Neither deed referred to the easement over the Church’s property. In 1989, Allstate executed a third warranty deed conveying the easement, alone, to the Robertses. In 1996, Louise Roberts executed a warranty deed conveying to Sweet City Properties, Inc. all of the land that the Robertses had acquired from Allstate, including the easement over the Church’s property. In 1997, Sweet City Properties executed a warranty deed transferring the entire 18-acre parcel, including the easement, to the Whiteners.

In May or June 1998, the Whiteners began building a dirt roadway on the easement. In April 1999, the Church notified the Whiteners that it owned the land in question, and the Whiteners ceased work on the roadway. They then sued the Church for declaratory and injunctive relief.

After a hearing, the trial court issued an order finding that the Whiteners have valid title to the easement. The court rejected the Church’s arguments that the easement had been abandoned, that the Church had acquired it by adverse possession, and that the Whiteners had failed to comply with the requirement that it be used only as a public road. Finally, the court ruled that the Church lost any claim to the easement by failing to timely assert its rights after the Whiteners began development.

1. The Church argues that the trial court “changed the status quo of the parties completely, and afforded [the Whiteners] all of the relief requested.” However, the Church cites no authority for the proposition that the nature of the relief granted by the trial court was procedurally improper. We find no error.

2. The Church asserts that the trial court erred in ruling that the Whiteners’ deed took priority over the Church’s deed. Again, we disagree.

OCGA § 44-2-2 (b) states in pertinent part that “[d]eeds . . . which are against the interests of third parties who have acquired a transfer . . . binding the same property and who are acting in good faith and without notice shall take effect only from the time they are filed for record in the clerk’s office.” Construing predecessors to this statute, Georgia courts have held that

[o]mitting the matter of notice, as against each other, competing deeds are effective only from and after being filed for record. . . . [I]n a contest between deeds upon a valuable consideration, from the same grantor, conveying the same property, such deeds, as against each other, where taken without notice, will take priority only from and after the date of lawful record or filing for record. . . .

The trial court reasoned that Allstate’s 1974 deed from the Diocese, which created the easement, took priority over the Church’s contemporaneous deed because Allstate’s deed was recorded first. Thus, the court concluded, the Church’s property is burdened by the easement even though its deed does not mention it.

(a) The Church maintains that Allstate’s deed does not have priority because Allstate was on notice when it took the deed that the Church had been conveyed its property free of the easement. The Church claims that Allstate’s deed refers to the Church’s 1974 deed from the Diocese. This argument is without merit.

The reference in Allstate’s deed is to a deed dated December 2, 1968, in which the Church previously acquired the six-acre tract it now owns. On December 6, 1968, the Church reconveyed the tract to the Diocese. The Diocese then owned the six-acre tract, as well as the eighteen-acre tract, until it conveyed the six-acre tract back to the Church in 1974. Thus, the reference in Allstate’s deed proves only that Allstate knew the Church had owned the six-acre tract six years earlier. There is no evidence that Allstate knew, when it took the 1974 deed from the Diocese, that the Church’s contemporaneous deed from their common grantor failed to mention the newly created easement.

(b) The Church also argues that, even if Allstate’s 1974 deed created a valid easement, Allstate never successfully conveyed the easement to the Robertses, thus breaking the chain of title. Specifically, the Church asserts that the easement “went out of existence” when Allstate sold the 18-acre tract to the Robertses via the 1976 and 1979 warranty deeds because those deeds did not mention the easement. We reject this argument.

Under Georgia law, “an easement appurtenant created by deed passes with the dominant estate, although the conveyance thereof may not have expressly mentioned the easement.” “An easement is appurtenant when the easement is created to benefit the possessor of the land in his use of the land.” An easement in gross, by contrast, is “a mere personal right in the land of another.” Rights of ingress and egress over land generally are construed as appurtenant easements. The easement in this case is appurtenant, as it was expressly intended to provide public road access from the 18-acre tract to Cross Street. Accordingly, the easement automatically passed to the Robertses when Allstate sold them the benefitted land, even though the 1976 and 1979 deeds did not mention the easement.

3. The 1974 deed from the Diocese to Allstate creating the easement states that it may be used “only as a public street or road after dedication as such by the City of Fort Oglethorpe.” The Church argues that the trial court erred “in finding that the Whiteners did not need to meet” this condition. But the court made no such finding. Rather, it found that the Whiteners intend to build the road to the city’s specifications and that, if they do so, the city will accept the road as a public street one year after construction is complete. Thus, the court concluded that the Whiteners have “initiated a process whereby the property will be dedicated to the city of Fort Oglethorpe as a public road.” As the Church has not shown that the court’s findings are clearly erroneous, this enumeration lacks merit.

4. The Church argues that even if Allstate’s deed containing the easement was valid, the Church acquired title to the easement by adverse possession.

To acquire title by adverse possession, a claimant must show “public, continuous, exclusive, uninterrupted, and peaceable” possession of the property for twenty years, or for seven years under color of title. Such possession is shown by “inclosure, cultivation, or any use and occupation [of the land] which is so notorious as to attract the attention of every adverse claimant, and so exclusive as to prevent actual occupation by another.” A claimant alleging title by adverse possession bears the burden of proving it.

In this case, the trial court found that, from 1980 to 1998, the Church never fenced, mowed, cleared, improved, or in any way used the forty-foot strip of land in question, except that Church representatives cleared trash from it two or three times a year. Thus, the court concluded that even though the Church owned the tract of land on which the easement was located, the Church did nothing “which would put the owner of the easement on notice that [the Church] was in possession of the easement adverse to the owner’s rights.” Hence the Church failed to prove that it possessed the easement in a manner “so notorious as to attract the attention of every adverse claimant, and so exclusive as to prevent actual occupation by another.”

The Church argues that it maintained a wooded border around its property for aesthetic purposes and that this use was sufficient to establish adverse possession. But there was no evidence that the Church planted any trees on the strip of land in question. While the deliberate creation of a wooded border on the property might have constituted possession inconsistent with the presence of a roadway easement, the trial court was entitled to presume that the trees had been there since the establishment of the easement. Accordingly, the trial court did not err in concluding that the Church failed to establish the type of possession necessary to acquire the land by prescription.

The Church also argues that its occupation of part of its six-acre tract was sufficient to put others on notice that it occupied the whole tract, including the easement. The Church cites OCGA § 44-5-166 (a), which states that a person who has paper title to a tract of land but actually possesses only part of it is deemed to have constructive possession of the entire tract. However, that rule does not apply where, as here, a disputed piece of land is included in the deeds of two adjacent landowners. Because the Church’s deed conveyed the entire six-acre tract unburdened by any easement, but Allstate’s deed created an express easement over the Church’s property, no inference of possession arises in favor of the Church.

5. The Church asserts that the easement was abandoned because it was not used from the date of its creation in 1974 until the Whiteners began to build the roadway in 1998. However, nonuse of an express easement does not constitute abandonment, in the absence of other evidence of an intent to abandon. The trial court found that the Whiteners’ predecessors in title had no intent to abandon the easement, and the Church fails to show that this finding was clearly erroneous. Accordingly, the trial court did not abuse its discretion in ruling that the easement was not abandoned.

Decided March 7, 2001

Reconsideration denied April 9, 2001.

Davis & Kreitzer, John W. Davis, Jr., William M. Phillips, for appellant.

Clifton M. Patty, Jr., for appellees.

6. The Church also charges the trial court with error in finding it guilty of laches. Because the trial court ruled that the Church had no legal claim to the easement, it was not necessary to determine whether the Church’s claim was barred by the equitable doctrine of laches. We therefore do not address this issue.

Judgment affirmed.

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

       We review a trial court’s grant of an injunction, whether interlocutory or permanent, for manifest abuse of discretion. Teachers’ Retirement System &c. v. Forehand, 234 Ga. App. 437, 438 (506 SE2d 913) (1998); Chambers v. Peach County, 268 Ga. 672, 673 (1) (492 SE2d 191) (1997).

       The Church relies on Dolinger v. Driver, 269 Ga. 141, 142 (1) (498 SE2d 252) (1998), in which our Supreme Court held that an order granting injunctive relief is directly appealable if it follows a lengthy adversary hearing and grants the plaintiff all the relief requested, even if the order is styled as a temporary restraining order. Dolinger has no application here.

        Wadley Lumber Co. v. Lott, 130 Ga. 135, 141 (2) (60 SE 836) (1908); see also Fourth Nat. Bank of Columbus v. Howell, 92 Ga. App. 868, 876 (2) (90 SE2d 78) (1955).

       (Citation omitted.) O’Barr v. Duncan, 187 Ga. 642 (2) (2 SE2d 82) (1939); see also Atkinson v. Drake, 101 Ga. App. 485, 487 (114 SE2d 213) (1960).

        Yaali, Ltd. v. Barnes & Noble, Inc., 269 Ga. 695, 697 (3) (506 SE2d 116) (1998).

       (Citation omitted.) Stovall v. Coggins Granite Co., 116 Ga. 376, 378 (42 SE 723) (1902).

        Yaali, Ltd., supra at 698.

       See OCGA § 9-11-52 (a).

        Proctor v. Heirs of Jernigan, 273 Ga. 29 (1) (538 SE2d 36) (2000).

       (Citation and punctuation omitted.) Cheek v. Wainwright, 246 Ga. 171, 172 (1) (269 SE2d 443) (1980); see also Ga. Power Co. v. Irvin, 267 Ga. 760, 764 (1) (b) (482 SE2d 362) (1997).

        Lindsey v. Lindsey, 249 Ga. 832, 833 (249 SE2d 512) (1982).

       There was no evidence as to whether the Church used the land in any way before 1980.

       See OCGA § 44-5-166 (b); Atlanta &c. R. Co. v. Colbert, 171 Ga. 196, 199 (154 SE 909) (1930); Robertson v. Abernathy, 192 Ga. 694, 698-699 (5) (16 SE2d 584) (1941).

        Smith v. Gwinnett County, 248 Ga. 882, 884 (2) (a) (286 SE2d 739) (1982); Gilbert v. Reynolds, 233 Ga. 488, 493 (212 SE2d 332) (1975).

       See City of Dalton v: Carroll, 271 Ga. 1 (515 SE2d 144) (1999) (“Laches is principally a question of the inequity in allowing a claim to be enforced”) (footnote omitted).