text:
    A00A1338.
    GREEN v. KREBS.
    (538 SE2d 832)
   Johnson, Chief Judge.

Sherry Green, mother of a 13-year-old boy and an 11-year-old girl, appeals an order modifying a previous custody order and granting primary physical custody to James Krebs, the children’s father. Green asserts numerous errors, including her contention that there is no evidence of a change of conditions affecting the children’s welfare sufficient to warrant a change in custody. We find sufficient evidence to uphold the trial court’s order changing custody, but find that the trial court’s calculation of child support to be paid by Green is erroneous. We therefore affirm in part and remand the case to the trial court to modify its order consistent with our ruling.

1. In several enumerations of error, Green argues that the evidence does not support the trial court’s change of custody. We do not agree.

A parent who has been awarded custody pursuant to a divorce decree has a prima facie right to retain such custody. To support a custody change, the trial court must affirmatively find either that the original custodian is no longer able or suited to retain custody or that conditions surrounding the child have so changed that modification of the original judgment would have the effect of promoting the child’s welfare. Whether there are changed conditions affecting the welfare of the child which will warrant changing custody is a fact question, and the trial court’s decision will be upheld if there is reasonable evidence to support the decision.

This rule of law lays the Solomonic task squarely upon the shoulders of the judge who can see and hear the parties and their witnesses, observe their demeanor and attitudes, and assess their credibility. It is that judge upon whom it is incumbent to hear evidence with respect to changed conditions and render a decision based upon that judge’s discretion and good judgment as that judge viewed the evidence, giving primary consideration to the welfare of the child.

Unless the record before this court clearly indicates that the judge based his decision upon illegal evidence or upon a misapprehension of the law, it will be presumed that the judge considered only legal and admissible evidence upon rendering his decision. The reviewing court has no judgment to impose in the matter; the exercise of discretion is granted solely and exclusively to the trial judge, and if there is any reasonable evidence to support the trial court’s decision concerning change of custody as between parents, such decision will be affirmed on appeal. In this case, nothing in the record suggests that the trial court’s decision was based on “illegal evidence” or a “misapprehension of the law,” and reasonable evidence existed on which the trial court based its decision to transfer custody to the children’s father.

The record shows that Green and Krebs divorced in 1990, when the children were three and two years old. At the time of the divorce, Krebs had very little income and relied on his mother for support, including financial assistance with his child support obligations. He was heavily in debt, resided in a small two-bedroom apartment and was trying to start a business that required a lot of travel. Green was awarded the marital home and was gainfully employed. While her employment required some travel, it was not extensive travel at the time of the divorce.

Until the beginning of 1995, both Krebs and Green had jobs that required frequent overnight travel. To help Green, Krebs began keeping the children more, and this arrangement resulted in Krebs having the children living with him at least 50 percent of the time. When the children were not living with Krebs, they lived with Green and her parents in Pickens County. They very rarely stayed in their Forsyth County home because Green traveled so extensively. This situation resulted in the children being excessively absent from and tardy in arriving at their school in Forsyth County. The school records show that in 1995, the daughter was absent sixteen times and tardy eight times. From the start of school until December 1996, she was absent 15 times and tardy 13 times. The school sent a letter to Green regarding her daughter’s excessive absenteeism and tardiness, but Green failed to respond to the letter. As a result, the school principal called a Forsyth County social worker to investigate the attendance problems. The children were rarely absent or tardy when they stayed with Krebs and he brought them to school.

In 1995, at the request of his son, Krebs obtained another job with a local employer that required only minimal travel. This employment resulted in the children spending more time with him, until they lived with him about 80 percent of the time. They would see Green about every other weekend because of her extensive traveling.

From the time the children began attending school until this action was filed in June 1998, Krebs was consistently involved in their school activities. It was Krebs who brought them to school most of the time, and when Krebs brought them to school, the children were on time and had few absences. When situations occurred requiring parental involvement, e.g., sickness, absences, lunch money and academic and discipline problems, school officials telephoned Krebs. It was Krebs who volunteered and assisted at school. In fact, Green rarely participated in school activities such as field trips, conferences and visits. When his son began having academic problems, Krebs came to the school on a daily basis to check on homework assignments until the grades improved. As a result of Krebs’ work with his son, the teacher made the following entry into the school record: “Wow — no comparison to last year — shown improvement in all areas.”

The evidence also showed that Krebs has been involved in community charitable work, as well as other social activities, and would bring the children with him to these activities about 40 percent of the time. The people who witnessed the personal relationship between Krebs and the children describe a caring, attentive and instructive father who disciplines by verbal explanation in quiet, patient tones and manners. All were favorably impressed with the obvious expressions of love, admiration and respect by the children toward their father, as well as their father’s attitude toward them.

Krebs has remarried, and he and his wife now live in a five-bedroom home in Forsyth County. The children have already developed many friendships in the neighborhood and play with their neighbors after school each day. Krebs’ wife will be home daily when the children finish school, and it will not be necessary for them to go to day care. In addition, Krebs is now financially able to adequately support the children.

According to the social worker, the children are very bright, have love and affection for both parents and do not want to hurt either parent’s feelings. However, the children are unhappy spending so much time at their grandparents’ house while their mother travels. It takes them an hour to get to school, so they have to leave early in the morning, miss many activities and do not get to play with their friends. The children informed the social worker that they preferred living with their dad. The trial judge also interviewed the children in chambers in the presence of only the court reporter and bailiff.

Green has not remarried and continued with her career activities requiring extensive out-of-town travel and absence from the children until after this action was filed. She then resigned from her employment, citing the issues raised by this case as the reason. Green obtained new employment requiring some overnight travel, but not the amount her former employment required. She is also financially able to support the children.

After this case was filed, Green immediately stopped allowing the children to stay with Krebs except for the specifically designated visitation privileges allowed by the divorce judgment, even though she was traveling a significant portion of the time. Even telephone calls between the children and Krebs have been limited and monitored. The children expressed their frustration with this situation to the social worker. The record further shows that Green removed Krebs’ name from the authorized list of persons who could pick the children up from school and that the children were absent five times and tardy eleven times in the twelve-week period following the filing of this case.

Following the two-day hearing and the trial judge’s private conversation with the children, the trial court found changed conditions with respect to (1) the age of the children, (2) the parents’ relationships toward the children, (3) the financial status, marital status and maturity of Krebs and (4) the attitude of the children toward spending so much time in their maternal grandparents’ home in Pickens County. Based on the changed conditions, the trial court concluded that it was in the children’s best interests to award custody to Krebs. It is not our function to second-guess the trial court in cases such as this, which turn largely on questions of credibility and judgments as to the welfare of the child. The trial court is in the best position to make determinations on these issues, and we will not overrule its judgment if there is reasonable evidence to support it. Because there is reasonable evidence to support the trial court’s ruling, we cannot say that the trial court abused its discretion in transferring custody to the father.

2. Green claims the trial court limited relevant evidence regarding her situation at the time of the hearing, specifically that she had stopped extensively traveling. However, the record shows that the trial court did not exclude, limit or prevent Green from testifying or introducing any evidence regarding her situation at the time of the hearing or at any other time. The trial court merely denied Green’s motion to dismiss after Krebs had presented his case.

Green also claims the trial court impermissibly limited evidence of Krebs’ failure to pay child support during certain years. However, the issue of child support had already been heard by the trial court, and the trial judge had the issue under advisement. Therefore, the trial court ruled that evidence regarding child support should not be brought up in the change of custody hearing except for the limited purpose of allowing Green to “give that as her reason for doing whatever she did.” Contrary to Green’s allegation, testimony regarding Krebs’ failure to pay child support as it related to Green’s need to work and travel was presented to the trial court. This enumeration of error lacks merit.

3. Green contends the trial court misconstrued or ignored parts of the record, resulting in findings of facts that are clearly erroneous. However, much of Green’s argument supporting this enumeration of error depends upon issues of credibility and disputed facts. These issues were clearly issues for the trial court to determine.

However, Green is correct in her assertion that the trial court erred in ruling that she earns a gross monthly income of $5,000.33 and in basing child support on this total. It is clear from Green’s Domestic Relations Financial Affidavit that $833.33 of her gross monthly income is attributable to child support received from Krebs. It was error to include child support paid by Krebs in Green’s income for purposes of calculating her child support obligation because this income would cease as a result of the court’s new order. Therefore, we must reverse the child support portion of the judgment. On remand, the trial court is directed to recalculate Green’s support obligation in a manner consistent with this opinion.

4. In her final enumeration of error, Green argues that the trial court should not have considered a petition for change of custody filed by a parent who has a child support arrearage. This enumeration is without merit.

Contrary to Green’s assertion, the rule regarding equitable rights does not apply in child custody cases. The duty of the trial court hearing the issue of custody “shall be to exercise its discretion to look to and determine solely what is for the best interest of the child or children and what will best promote their welfare and happiness.” The fact that Krebs was in arrears on child support payments, while a factor the trial court may consider in determining what is in the best interests of the children and what will best promote their welfare and happiness, does not mandate that Green retain custody of the children.

Judgment affirmed in part, reversed in part, and case remanded with direction.

Smith, P. J, and Phipps, J., concur.

Decided August 31, 2000

Kutner & Bloom, Jeanney.M. Kutner, for appellant.

Dudley W. Garrett, Jr., for appellee.

        Ormandy v. Odom, 217 Ga. App. 780-781 (1) (459 SE2d 439) (1995).

       Id.

        Crumbley v. Stewart, 238 Ga. 169-170 (231 SE2d 772) (1977); Dearman v. Rhoden, 235 Ga. 457, 459 (4) (219 SE2d 704) (1975); Scott v. Scott, 227 Ga. App. 346, 348 (1) (489 SE2d 117) (1997).

       (Citations and punctuation omitted.) Arp v. Hammonds, 200 Ga. App. 715, 717 (409 SE2d 275) (1991).

       Id.

       Id.

       See Dearman, supra; Daniel v. Daniel, 235 Ga. App. 184, 186 (1) (509 SE2d 117) (1998) (physical precedent only).

       See Martin v. Greco, 225 Ga. App. 752, 753 (2) (484 SE2d 789) (1997).

       See OCGA § 19-6-15 (b), (c).

       OCGA § 19-9-3 (a) (2).


source: Caselaw Access Project

author: Johnson, Chief Judge.

license: Public Domain

text:
    A00A1412.
    JOHNSON v. THE STATE.
    (538 SE2d 850)
   Johnson, Chief Judge.

A jury found Marcus Octavious Johnson guilty of aggravated assault. He appeals, raising three issues regarding the trial court’s charges to the jury. Because none of the enumerations has merit, we affirm his conviction.

Viewed in a light most favorable to the verdict, the evidence shows that George Walker was in a bar with his common law wife, Mia Green, when she began dancing with Johnson. Moments later, a group of men surrounded Green and began touching and “trying to dance nasty with her.” Walker approached the men and told them to stop behaving this way toward his wife. Johnson remarked that Walker was being disrespectful toward him. Walker replied that he meant no offense, but that the men needed to let Green out. As Walker started walking away from the group, someone in the group struck him in the back of the head with a hard object. Walker fell to the floor, and the men hit and kicked him repeatedly, breaking his neck. The attack left Walker permanently paralyzed from the neck down. The state charged Johnson and two other men with aggravated assault.

1. OCGA § 16-5-21 (a) provides that aggravated assault is committed when a person (1) assaults with intent to murder, rape, or rob; (2) assaults with a deadly weapon or with any instrument which, when used offensively against a person, is likely to or actually does cause serious bodily injury; or (3) discharges a firearm from a motor vehicle toward a person.

The state alleged in the indictment that Johnson assaulted Walker “with [his] hands and feet, objects which when used offensively against a person, are likely to and actually do result in serious bodily injury, by striking and kicking [Walker] about the head and body.” It is undisputed that the type of assault alleged would come within part (2) of OCGA § 16-5-21 (a).

In its charge to the jury, the trial court recited both parts (1) and (2) of the statute. Johnson contends that the trial court erred in giving this charge because the jury may have convicted him of the alternate manner of aggravated assault, namely, assault with intent to murder. To support his argument, he points to the victim’s testimony that he believed the men were trying to kill him. This argument presents no grounds for reversal.

It is generally not error to charge an entire Code section even though part of that section may be inapplicable to the allegations and the evidence. Error arises, however, if the indictment specifies the commission of a crime by only one of several methods possible under the statute and a reasonable probability exists that the jury convicted the defendant of committing the offense in a manner not charged in the indictment. No such reasonable probability exists in this case.

Here, the trial court read the indictment verbatim to the jury, advising the jury that Johnson was charged with using his hands and feet as objects which, when used offensively against a person, are likely to and actually do result in serious bodily injury. The trial court also instructed the jury that the state has the burden of proving every material allegation of the indictment, and that if the jury found that Johnson committed the crime as set out in the indictment, they would be authorized to find him guilty of aggravated assault. Under these circumstances, the trial court properly limited the elements of the crime to those charged in the indictment, and there was no error.

Although in this case we hold that the instruction was not erroneous, we point out that since charging alternate sections of a statute can constitute reversible error, trial judges should be careful not to charge sections of statutes unnecessarily. And in those cases in which extraneous sections are inadvertently charged, the court should be sure to inform the jury that it is to consider the charges as set out in the indictment. Here, that was done.

2. Johnson complains that the trial court erred in failing to instruct the jury as to the circumstances under which hands and feet can constitute deadly weapons. But neither the statute nor the indictment requires the use of a deadly weapon. The applicable section of the statute provides that the assault is committed “[w]ith a deadly weapon or with any object, device, or instrument which, when used offensively against a person, is likely to or actually does result in serious bodily injury.” The indictment does not charge Johnson with using a deadly weapon, but with using objects, specifically, hands and feet, which when used offensively are likely to and actually do result in serious bodily injury. Thus, it was not necessary for the court to define the term “deadly weapon.” Moreover, Johnson’s failure to request such a charge in writing amounts to a waiver.

Decided August 31, 2000.

Elizabeth C. Calhoun, for appellant.

Daniel J. Craig, District Attorney, Charles R. Sheppard, Assistant District Attorney, for appellee.

3. Johnson contends that the trial court erred in giving the following charge on reasonable doubt:

A reasonable doubt means just what it says. It’s a doubt of a fair minded, impartial juror, honestly seeking the truth. It is a doubt based upon common sense and reason. It does not mean a vague or arbitrary doubt, but is a doubt for which a reason can be given arising from a consideration of the evidence, a lack of evidence, a conflict in the evidence or any combination of these.

Johnson urges that the emphasized portion of this charge impermissibly shifts the burden to him to offer evidence and violates the presumption of innocence. As this Court explained in Andrews v. State, this language has been upheld as constitutional by the Supreme Court of Georgia. And, considering the trial court’s charge in its entirety, we find no reasonable likelihood that the jury applied an improper standard of proof. This enumeration is therefore without merit.

Judgment affirmed.

Smith, P. J., and Phipps, J., concur.

        Chadwick v. State, 236 Ga. App. 199, 201-202 (2) (511 SE2d 286) (1999).

       Id.; Roberson v. State, 241 Ga. App. 226, 230 (2) (526 SE2d 428) (1999) (physical precedent only); Skillern v. State, 240 Ga. App. 34, 35 (2) (521 SE2d 844) (1999).

       See Roberson, supra; Thomas v. State, 268 Ga. 135, 141 (17) (485 SE2d 783) (1997). Compare Harwell v. State, 270 Ga. 765, 766 (1) (512 SE2d 892) (1999) (reversal required where indictment alleged one method and court charged alternate methods, but did not instruct jury to limit its consideration to the manner specified in the indictment).

       (Emphasis supplied.) OCGA § 16-5-21 (a) (2).

       See Price v. State, 237 Ga. App. 54, 56 (3) (513 SE2d 40) (1999).

       236 Ga. App. 152 (1) (511 SE2d 258) (1999).

       Id. at 153 (1).


text:
    A00A1546.
    THE STATE v. JONES.
    (538 SE2d 819)
   Johnson, Chief Judge.

The state appeals from the trial court’s grant of Stephanie Jones’ motion to suppress items seized from her car and purse, contending that the motion did not satisfy the requirements of OCGA § 17-5-30 (b), and that the search was supported by probable cause. We affirm the trial court’s decision.

1. The state contends that the motion to suppress should not have been considered by the trial court because it failed to state facts showing that the search and seizure were unlawful. The state alleges that, as a result of this deficiency, it was unaware of the grounds of the motion and was unable to adequately respond. This argument is without merit.

OCGA § 17-5-30 (b) provides that a motion to suppress shall be in writing and state facts showing that the search and seizure were unlawful. In cases involving warrantless searches, the factual showing required by OCGA § 17-5-30 (b) need not be made in great detail because, in such cases, many of the necessary allegations are negative facts (e.g., the search was conducted without a warrant, the movant did not consent to the search) and are conclusions based upon mixed questions of law and negative fact (e.g., the officer lacked probable cause to arrest or search).

In her original motion, Jones moved to suppress all evidence gathered against her, including test results, statements she made to police, and all evidence seized from her or her car without probable cause, either with or without a warrant. No facts were included in the motion or brief filed in support of the motion.

Jones later filed an amended motion, stating therein that she “hereby amends her motion to suppress by adding the Police Reports attached hereto as Exhibit 1 and Exhibit 2 showing no probable cause to search Defendant’s vehicle.” The police reports included detailed facts showing the circumstances surrounding the stop, search, and seizure. Jones did not otherwise state or discuss the facts in the amended motion.

While we do not intend to encourage the type of draftsmanship used by the movant in this case and, in fact, we point out that counsel ran the very real risk of the motion not being adequate, we agree with the trial court that it was sufficient. Reports attached to the motion show the details of the search, including the date and location of the search, the identity of the person searched, the number of officers making the search, the identity of the material seized, the fact that the search was conducted without a warrant, the fact that Jones did not consent to the search, and the basis for and circumstances surrounding the stop. The motion includes the conclusion that there was no probable cause for the search. Jones’ motion was sufficient to put the state on notice as to the type of search involved (without warrant versus with warrant), which witnesses to bring to the hearing on the motion, and the legal issues to be resolved at the hearing. The trial court did not err in considering the motion.

2. The state contends the motion should not have been granted because the detention was reasonable and because police had probable cause to search Jones’ car. We find that the detention was not a brief investigative stop but a full-blown arrest, requiring probable cause. Moreover, we find that the arrest and subsequent search were not supported by probable cause.

When faced with a motion to suppress evidence based on an illegal search, the state has the burden to prove the lawfulness of the search. On appeal, we view the evidence in a light most favorable to the trial court’s ruling. Absent evidence demanding a finding contrary to the trial court’s determination, we will not reverse the grant of a motion to suppress.

A police officer testified that he had been notified by another officer to be on the lookout for a certain vehicle because the driver would be transporting drugs to Syntec Industries, which was the driver’s place of work. The officer saw the car and started following it. After following the car for awhile, the officer estimated that the driver was traveling about 15 mph over the speed limit. He initiated a traffic stop, and Jones, the car’s driver and owner, pulled into the Syntec parking lot and parked her car. Jones got out of her car and asked the officer “what the problem was.” The officer replied that Jones was speeding and that the county decal on her license plate was obscured. Jones told the officer that she was running late and needed to go to work. The officer explained to Jones that he was going to just give her a written warning for the tag violation and a verbal warning for speeding. As the officer was filling out the written warning form, Jones, without being asked, told the officer that she used to have a drug problem, but that she no longer used drugs. The officer then asked if he could search her car for drugs. Jones said he could not. Jones kept telling the officer that she needed to get to work and that he could search the car when she was gone. The officer told her that she needed to be there during any search of the car. In response, Jones remarked that the officer would have to get a warrant.

The officer then directed Jones to stand next to the car, which she did. Jones kept moving around, saying she needed to go to work. The officer told her to “quit moving around so much and stay in one spot.” A drug dog and accompanying canine officer had arrived on the scene three minutes after the officer stopped the car, but it was police department policy to have a supervising officer on the scene before a K-9 free-air search for drugs could be conducted. The officer made Jones wait for a supervisor to arrive. The officer testified that he detained Jones based on her nervous demeanor, her statement about drug use, and information he had that she might be transporting drugs. The trial judge watched a videotape of the incident and concluded that Jones did not seem particularly nervous, just concerned about the time and anxious to get to work.

The canine officer, who was also the officer who relayed information to the arresting officer about the lookout for Jones’ car, testified that he had information that “a certain white female named Stephanie Jones should be [in] a vehicle, a white vehicle approximately ‘90s model vehicle, which is going to be a Toyota Corolla. She should be en route to Westend — Westside Industrial Boulevard on the date in question,” and “possibly” had illegal drugs in the car. He relayed this information to the arresting officer. The canine officer did not know how police got the information that Jones was possibly transporting drugs.

The canine officer testified that he was in the area at the time of the stop and overheard the arresting officer’s transmission indicating that he was stopping Jones’ car. He arrived on the scene in about three minutes and waited there approximately fifteen to twenty minutes before he began the canine search of Jones’ car.

In deciding the legality of this warrantless search, we must first determine if the police detention of Jones was a mere investigative stop or a full-blown arrest. There is no “bright line” rule or rigid time limitation which can be used in determining whether the detention of a person constitutes a mere investigative stop requiring only an articulable suspicion or an arrest requiring the existence of probable cause at its inception. As much as a “bright line” rule would be desirable, in determining whether a detention is reasonable, common sense and ordinary human experience must govern over rigid criteria. Considerations include whether there was a swiftly developing situation and whether the officer diligently pursued a means of investigation that was likely to confirm or dispel his suspicions quickly, during which time it was necessary to detain the defendant. An investigative detention must last no longer than necessary to effectuate the purpose of the stop, and the investigative methods employed should be the least intrusive means reasonably available.

Decided August 31, 2000.

Tambra P. Colston, District Attorney, John F. McClellan, Jr., Assistant District Attorney, for appellant.

In this case, the detention was more than a mere investigative stop requiring only reasonable suspicion. Jones had arrived at work, parked her car, and was attempting to report for work. She told the officer she was late for work and that he could search her parked car while she was at work. Thus, there was no rapidly developing situation which would justify detaining Jones. Furthermore, since the drug dog and his handler were already on the scene, despite any departmental rule to the contrary, police could have conducted the free-air search while the officer was issuing warnings for the traffic offenses. Such a procedure would have quickly confirmed or dispelled the officer’s suspicions. The officer acted unreasonably in failing to recognize or pursue the less intrusive means of accomplishing his objective. We agree with the trial court that, in requiring Jones to wait for the supervisor to arrive before the free-air search began, police detained Jones longer than was necessary and effected more than just a brief investigative stop.

Jones’ detention constituted an arrest, and, for the arrest to be legal, it was necessary for the officer to have had probable cause to arrest her at the moment the arrest was made. He did not have probable cause at the moment of arrest. The information possessed by the officer at the time of the arrest — that Jones appeared to be nervous, perhaps because she was late for work, that she had used drugs in the past but had stopped, and that police had very general information from an unknown or at least undisclosed source that Jones was “possibly” transporting drugs — may have established reasonable suspicion to briefly detain her, but it certainly did not establish probable cause to arrest Jones or search her car and purse. Inasmuch as there is a substantial basis for the trial court’s decision, we affirm the grant of the motion to suppress.

Judgment affirmed.

Smith, P. J., and Phipps, J., concur.

James A. Satcher, Jr., for appellee.

        Hill v. State, 222 Ga. App. 839 (2) (476 SE2d 634) (1996).

       Id. at 839-840.

       See id. at 840; State v. Barnett, 233 Ga. App. 496, 497 (1) (504 SE2d 531) (1998).

       See id.; Hill, supra.

        State v. Winnie, 242 Ga. App. 228-229 (529 SE2d 215) (2000).

       Id.

       Id. at 231.

        DiSanti v. State, 190 Ga. App. 331, 334 (1) (378 SE2d 729) (1989).

        Buck v. State, 239 Ga. App. 828, 830 (522 SE2d 252) (1999).

       Id.

        Roberts v. State, 193 Ga. App. 96, 98 (386 SE2d 921) (1989).

       See Alex v. State, 220 Ga. App. 754, 756 (2) (470 SE2d 305) (1996).

        DiSanti, supra, citing Schmidt v. State, 188 Ga. App. 85, 87 (372 SE2d 440) (1988); see Migliore v. State of Ga., 240 Ga. App. 783, 786 (525 SE2d 166) (1999).

       See DiSanti, supra.

       See generally State v. Williams, 242 Ga. App. 34, 36-37 (528 SE2d 554) (2000); Rucker v. State, 199 Ga. App. 854 (406 SE2d 277) (1991).


author: Ruffin, Judge.

text:
    A00A1574.
    WARREN v. THE STATE.
    (538 SE2d 840)
   Ruffin, Judge.

A Bibb County jury found Carlos Warren guilty of five counts of aggravated assault and one count of participation in gang activity in connection with the drive-by shooting of a house on May 6, 1996. On appeal, Warren asserts that the evidence was insufficient to support his convictions and that the trial court erred by failing to hold an evidentiary hearing on his motion for a continuance due to pretrial publicity. Because the evidence was sufficient and the trial court did not err, we affirm.

1. Initially, we note that the relevant background facts are set forth in Warren v. State, in which we affirmed the conviction of Carlos Warren’s brother and co-defendant, Kareem Warren. We need not repeat those facts here.

(a) Warren contends that several of the victims of the drive-by shooting were unable to identify him as one of the occupants of the car in question. However, two of the victims testified that they saw Warren, along with his brother and a third person, in the car no more than fifteen minutes before the shooting and that Warren had a gun in his hand. One of the victims heard a pistol cock after he “exchanged a few words” with Warren. Another victim told police that she saw Warren in the car immediately before the shooting. Finally, two of the victims testified that Warren apologized to them after the incident, saying that the shooting was meant for someone else. Even though there was no evidence as to which of the occupants of the car actually fired the shots, the evidence was sufficient to tie Warren to the drive-by shooting, either as the shooter or as a party to the crime. Although Warren argues that the victims’ testimony is not believable because they were admitted gang members, the credibility of witnesses is a matter for the jury.

(b) Warren also contends that the evidence was insufficient to support his conviction of participation in gang activity because there was no evidence that he was a member of a gang. But former OCGA § 16-15-4 (b) (1), under which Warren was charged and which was applicable at the time, did not require the State to prove that Warren was a member of a gang. Rather, the State had to show that Warren committed a felony “for the benefit of, at the direction of, or in association with any criminal street gang with the specific intent to promote, further, or assist in any criminal conduct by gang members.” The record shows that the State met that burden here.

The State’s theory of the case was that the May 6 drive-by shooting was an attempt at revenge by members of one gang against a member of a rival gang. The evidence showed that the victims were members of Folks Nation, a street gang. Macon Police Officer Karl Fletcher testified that Kareem Warren was a member of the Bloomfield Gangster Crips, a rival gang. One of the victims of the May 6 shooting testified that he knew “there was a problem” between Kareem Warren and another Folks Nation member who was not present at the house that day. Three of the victims testified that, about a month before the May 6 drive-by shooting, they and other Folks Nation members were walking to a basketball court when a car belonging to Carlos Warren drove by. Someone — identified by one of the victims as Kareem Warren — shot at the group from inside the car. A bystander found a blue bandanna — which, according to Officer Fletcher, is a symbol of the Bloomfield Gangster Crips — at the scene of that shooting. Finally, two of the victims testified that Carlos Warren apologized to them after the May 6 shooting and said that it was meant for someone else. Thus, there was sufficient evidence for the jury to conclude that Carlos Warren committed the aggravated assaults in connection with his brother, a gang member, to promote, further, or assist gang activity.

2. Warren argues that the trial court violated his due process rights by refusing to grant an evidentiary hearing on his motion for a continuance due to pretrial publicity. To obtain a continuance or change of venue due to pretrial publicity, the defendant must show either that the setting of the trial is inherently prejudicial or that the jury selection process showed actual prejudice that rendered a fair trial impossible. Whether to grant such a motion is within the sound discretion of the trial court.

Counsel for Kareem Warren argued the motion for continuance on behalf of all defendants prior to jury selection. Counsel argued that recent articles in the local paper would make it very difficult to impanel an impartial jury. Counsel did not request an evidentiary hearing. The trial court denied the motion at that time, stating, “The test is to try to impanel an impartial jury and if you can’t do so, then a continuance may be warranted.” A full panel of jurors was then chosen. Counsel for all defendants specifically stated that they had no objection to the impaneling of the jurors, and counsel did not renew their motion for continuance. Before trial, the trial court instructed the jurors to ignore any media coverage of the case.

Decided August 31, 2000.

Nicholas E. White, for appellant.

Charles H. Weston, District Attorney, Myra Y. Christian, Howard Z. Simms, Assistant District Attorneys, for appellee.

Under these circumstances, the trial court did not abuse its discretion by denying the motion for continuance or by failing to hold an evidentiary hearing. The mere existence of newspaper stories about a case does not render the trial setting inherently prejudicial. And, as the jury selection was not transcribed, there is no evidence in the record that the jurors were actually prejudiced by the newspaper articles in question, or even that they had read them. Moreover, counsel were able to agree on a panel of jurors and raised no objections concerning their impartiality.

Judgment affirmed.

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

       The jury acquitted Warren of five additional counts of aggravated assault stemming from a drive-by shooting that took place on April 4, 1996.

       233 Ga. App. 699 (505 SE2d 777) (1998).

       See id. at 699 (1) (a); Haynes v. State, 199 Ga. App. 288, 289 (1) (404 SE2d 585) (1991); Lindsey v. State, 271 Ga. 657, 658 (1) (522 SE2d 459) (1999).

        Roker v. State, 262 Ga. 220, 221 (1) (416 SE2d 281) (1992).

       Former OCGA § 16-15-4 (b) (1); Jackson v. State, 272 Ga. 191, 193 (1) (528 SE2d 232) (2000).

       Carlos Warren was charged with aggravated assault in connection with this incident as well, but was acquitted of those charges.

        Moore v. State, 224 Ga. App. 797, 799 (3) (481 SE2d 892) (1997).

        Davis v. State, 232 Ga. App. 882, 884 (2) (502 SE2d 779) (1998).

       See, e.g., Cromartie v. State, 270 Ga. 780, 784 (9) (a) (514 SE2d 205) (1999).

       See Deal v. State, 233 Ga. App. 79, 81 (4) (503 SE2d 288) (1998) (where trial court “was able to seat a full panel of jurors untainted by pretrial publicity,” there was no showing of actual prejudice).


author: Pope, Presiding Judge.

text:
    A00A1405.
    In the Interest of J. E., a child.
    (538 SE2d 852)
   Pope, Presiding Judge.

Appellant J. E. was adjudicated delinquent on two counts of simple battery arising out of an altercation that occurred in Peachtree City. He appeals alleging only that the State failed to prove venue in Fayette County.

J. E. denied the allegations against him including venue, and the case was tried before the Juvenile Court of Fayette County. During the trial, the State asked the victim, “Did it happen here in Fayette County?” The victim replied, “Peachtree City.” The boy also testified that he went to the Peachtree City Police Department to make a statement. And others testified the incident occurred in the Braelinn shopping center.

Decided September 1, 2000.

Lloyd W. Walker, for appellant.

William T. McBroom III, District Attorney, James E. Sherrill, Assistant District Attorney, for appellee.

Venue is a jurisdictional fact that the prosecution must prove beyond a reasonable doubt. Graves v. State, 269 Ga. 772, 773 (1) (504 SE2d 679) (1998). “When there is insufficient evidence of venue, the verdict rendered is contrary to law and without sufficient evidence to support it.” Id. In order to take judicial notice of any fact, the trial court “must first announce its intention to do so on the record, and afford the parties an opportunity to be heard regarding whether judicial notice should be taken.” Id. at 775 (4) (a).

Without judicial notice of the fact that either Peachtree City or the Braelinn shopping center is wholly within Fayette County, there is no proof of venue. And, because the trial court did not announce its intention to take judicial notice, as required in Graves, the State presented no evidence of venue in Fayette County.

Judgment reversed.

Miller and Mikell, JJ, concur.


author: Smith, Presiding Judge.

text:
    A00A1496.
    JOWERS v. THE STATE.
    (538 SE2d 853)
   Smith, Presiding Judge.

Richard Jowers, Jr. was indicted by a Coffee County grand jury on four counts of child molestation and four counts of enticing a child for indecent purposes. At trial, a directed verdict was granted on all four counts of enticement. The jury found Jowers guilty on the third and fourth counts of child molestation but was unable to reach a verdict on the first two counts. The trial court declared a mistrial on the first two counts and entered judgment of conviction on Counts 3 and 4. Jowers’s motion for new trial was denied, and he appeals, asserting six enumerations of error. Finding no error, we affirm.

1. Jowers asserts the general grounds. He contends that the State failed to meet its burden of proof with respect to his “intent to arouse or satisfy the sexual desires of either the child or the person” under OCGA § 16-6-4. But it is well recognized that “[w]hether the requisite intent for child molestation existed was a question of fact, to be determined by the jury after considering all the circumstances surrounding the acts of which the accused is charged, including words, conduct, demeanor, and motive.” (Citation and punctuation omitted.) McGarity v. State, 224 Ga. App. 302, 304 (2) (480 SE2d 319) (1997).

Two of the victims testified that, in addition to touching them, Jowers displayed pornographic materials to them, and Jowers admitted to a Department of Family & Children Services investigator and a police officer that “he showed the girls a dirty magazine.” He also told the officer that he was conducting “a sex education class” for the girls. The evidence was sufficient to support an inference that Jowers “committed the acts at issue in order to satisfy his own sexual desires and was sufficient to enable a rational trier of fact to find beyond a reasonable doubt that [Jowers] committed the offense of child molestation. [Cits.]” Foster v. State, 216 Ga. App. 26-27 (1) (453 SE2d 482) (1995).

2. Jowers also contends that the trial court erred in allowing testimony that he showed pornographic materials to three of the victims. Jowers cites no authority whatsoever for this contention, but appears to argue that the best evidence rule required submission to the jury of the actual materials. This contention was made and rejected in King v. State, 209 Ga. App. 529, 530 (2) (a) (433 SE2d 722) (1993).

We note, although Jowers does not, that the Supreme Court of Georgia’s recent decision in Simpson v. State, 271 Ga. 772 (523 SE2d 320) (1999), has limited the introduction of “physical evidence of a sexual nature” for the sole purpose of showing a defendant’s “lustful disposition”; it must be “linked to the crime charged.” Id. at 774 (1). But here, even if physical evidence rather than testimony had been at issue, the victims testified that the pornographic materials were shown to them, thus “linking” them to Jowers’s offense. Cf. Frazier v. State, 241 Ga. App. 125, 126 (524 SE2d 768) (1999).

3. Jowers next contends the trial court erred in denying his motion for mistrial after opening statements were completed. At that time, the assistant district attorney informed the court that he had recognized one of the jurors as a member of the grand jury that indicted Jowers approximately two years earlier. It is true that a former grand juror may not serve on a petit jury trying a defendant indicted by that grand jury. But even when the jury has begun deliberations, the presence of a former grand juror does not demand a mistrial. Instead, the trial court considers the good faith of those involved and whether bias or prejudice resulted. Motes v. State, 192 Ga. App. 302, 304 (3) (384 SE2d 463) (1989) (full concurrence in Division 3), overruled on other grounds, Smith v. State, 268 Ga. 196, 200, n. 5 (486 SE2d 819) (1997).

Here, the jury had not begun deliberations; indeed, it had not yet heard any testimony and had been instructed not to discuss the case. As soon as the error was called to its attention, the trial court excused the former grand juror. The court then individually questioned each remaining juror, and each juror denied having discussed the case with the former grand juror in any manner. Under the totality of the facts and circumstances here, “we hold that the trial court correctly handled this unusual situation and did not err in declining to grant appellant’s motion for mistrial as any presumption of injury to appellant was overcome and the grand juror’s presence in the jury room was harmless.” (Citation and punctuation omitted.) Motes, supra, 192 Ga. App. at 304.

4. Jowers makes a similar contention regarding a juror’s realization that her daughter was a Mend of one of the victims. The indictment gave this victim an incorrect surname, and the jurors were asked if they knew the victim by that name. Once the victim took the stand, she gave her correct last name. When the juror saw her face, she realized that her daughter was a Mend of the victim and so informed the trial court. The trial court excused this juror but declined to grant a mistrial.

Once again, the trial court had discretion to weigh the alleged juror misconduct for intent, bias, and potential prejudice to the defendant. Harbin v. State, 165 Ga. App. 631-632 (1) (302 SE2d 386) (1983). Here, there was no juror misconduct or irregularity, because the juror had not “forgotten to mention” that her daughter knew the victim, as Jowers contends. Instead, the juror was innocently misled as to the identity of the victim until the victim took the witness stand, and the juror called the error to the court’s attention before she or the other jurors left the courtroom. The juror told the judge in open court that she had “a problem,” the judge sent the other jurors to the jury room, and the juror was examined and excused. There was no opportunity for the juror to communicate her newfound realization to the other jurors. Indeed, the trial court was within its discretion to conclude that any questioning regarding the juror’s excusal could well have created prejudice where none existed. Any questioning likely would have disclosed the nature of the “problem” that so far as the other jurors knew might have been personal or otherwise unrelated to the facts of the case. The trial court did not err in its handling of this situation. Id.

5. Jowers complains that his confession was improperly admitted into evidence. His contention that a confession must be taped or written to be admitted into evidence, a contention he does not support by any citation to legal authority, is without merit. Barrs v. State, 202 Ga. App. 520, 521 (3) (414 SE2d 733) (1992). The trial court held a Jackson-Denno hearing and determined that the oral confession was preceded by appropriate Miranda warnings and was voluntary. See Crawford v. State, 236 Ga. 491, 492 (224 SE2d 365) (1976); Gadson v. State, 197 Ga. App. 315-316 (1) (398 SE2d 409) (1990). The trial court’s finding that Jowers’s confession was voluntary and admissible was not clearly erroneous, and the trial court did not err in admitting Jowers’s confession into evidence. Id.

Decided September 5, 2000.

Martin H. Eaves, for appellant.

Richard E. Currie, District Attorney, Albert H. Tester, Assistant District Attorney, for appellee.

6. Finally, Jowers alleges prosecutorial misconduct in a question directed to one of the victims. But Jowers failed to object to this question at trial. “[P]rosecutorial [mis]conduct not objected to at trial will not warrant reversal on appeal.” (Punctuation and footnote omitted.) Tuten v. State, 242 Ga. App. 223, 225 (4) (529 SE2d 221) (2000). Moreover, the fact alluded to by the prosecutor was already in evidence from three other sources, including Jowers’s confession. The admission of cumulative evidence is harmless. Flowers v. State, 181 Ga. App. 572 (2) (353 SE2d 69) (1987).

Judgment affirmed.

Johnson, C. J., and Phipps, J., concur.

       The juror was not, as Jowers contends, herself a friend of the victim.

       Moreover, the jury was unable to reach a verdict with respect to the allegations involving this victim.

       To the extent that Jowers contends his statement was an admission, not a confession, because he maintains he did not confess to his “intent,” see Division 1, supra.


author: Eldridge, Judge.

text:
    A00A2015.
    In the Interest of A. L. B. et al., children.
    (538 SE2d 557)
   Eldridge, Judge.

Appellant appeals the order of the juvenile court terminating her parental rights to A. L. B. and A. L. B. Although the appellant challenges the sufficiency of the evidence to support the termination of her parental rights, we disagree and affirm.

On April 9, 1999, the Laurens County Department of Family & Children Services (“DFCS”) filed a petition for termination of parental rights under provisions of OCGA § 15-11-81 (b) (4) (B) (ii) and (iv) against appellant and her husband for chronic unrehabilitated abuse of alcohol, domestic violence, and child molestation. The juvenile court heard the petition on September 10, 1999, and December 10, 1999, thereafter ordering their parental rights terminated. This appeal followed.

Appellant contends that there was insufficient evidence to terminate her parental rights for want of evidence showing that her children’s deprivation was likely to continue.

Parental rights are terminated under OCGA § 15-11-81 upon a two-prong analysis.

First, the court determines whether there is clear and convincing evidence of parental misconduct or that the parent is unable to care for and control the child. Second, the court determines whether termination is in the best interest of the child.

(Citations and punctuation omitted.) In the Interest of S. H. P., 243 Ga. App. 720 (534 SE2d 161) (2000).

Parental misconduct or inability is determined by finding: 1) that the child is deprived; 2) that the lack of proper parental care or control is the cause of the deprivation; 3) that such child’s deprivation is likely to continue or will not be remedied; and 4) that continued deprivation will cause or is likely to cause serious physical, mental, emotional, or moral harm to the child. OCGA § 15-11-81 (b) (4) (A).

In the Interest of D. I. W., 215 Ga. App. 644, 645 (1) (451 SE2d 804) (1994).

On appeal, we are required to view the evidence in the light most favorable to the juvenile court’s order in determining whether a rational trier of fact could have found by clear and convincing evidence that the parent’s rights had been lost. Ours is not to weigh the evidence, but to defer to the trial judge as the factfinder. In the Interest of S. H. P., supra at 721; In the Interest of D. I. W., supra.

So viewing the evidence, the record reflects that the appellant has a long history involving alcohol abuse and domestic violence. It is undisputed that when the superior court entered its order terminating her parental rights in February 2000, the appellant no longer had a driver’s license; she had five DUIs; she had most recently been arrested for an alcohol-related offense in December 1998, threatening suicide over it; she had a history of treatment for alcohol abuse and relapse; she had been continuously sober for a nine-month period only once, having started drinking at age twelve; she had been involved in seventeen family violence incidents; she had been severely beaten in the last of these in October 1999; and she was under medication for depression. Morever, although the appellant testified she had complied with the ten-goal reunification plan in effect before the termination petition was filed, a DFCS caseworker testified that her effort to follow the plan had not been conscientious — this because drinking and domestic violence recurred through December 1998, notwithstanding the participation of the appellant and her husband in an alcohol and drug treatment program.

Appellant here argues the insufficiency of the evidence to show that the deprivation of the children would likely continue in the future, seeking our reversal of the termination of her parental rights. However, “ ‘the past conduct of the parent is properly considered by the court in determining whether such conditions of deprivation are likely to continue. (Cits.)’” In the Interest of J. M. C., 201 Ga. App. 173, 174 (410 SE2d 368) (1991), citing In the Interest of J. L. Y., 184 Ga. App. 254, 257 (361 SE2d 246) (1987). While the record does show that appellant attended Alcoholics Anonymous, got a job, and began paying child support, this belated activity occurred after the termination petition was filed and does not negate the years the appellant neglected the children. In the Interest of S. H. P., supra at 723. Neither did the appellant present evidence of having her own home or of any emotional bond or attachment to the children. Finally, while the appellant correctly argues that the superior court erred in admitting child hearsay alleging child molestation against her husband and in her presence for failure to show the availability of the child witness under Woodruff v. Woodruff, 272 Ga. 485 (531 SE2d 714) (2000) (competency of children in civil actions established upon a showing of their understanding of the meaning and effect of an oath), she has not demonstrated prejudice inuring to her detriment. Tarleton v. Griffin Fed. Sav. Bank, 202 Ga. App. 454, 455 (2) (b) (415 SE2d 4) (1992) (“An appellant must show harm as well as error to prevail on appeal; error to be reversible must be harmful. [Cits.]”). In this regard, the appellant admitted on being cross-examined that she allowed her husband to sleep with the complaining child when she and her husband argued, disclaiming any child molestation because “[her husband] always wore shorts or something.”

Accordingly, we conclude that there is clear and convincing evidence that the children are deprived due to parental misconduct, that their deprivation will likely continue into the future or will not be remedied, and that continued deprivation is likely to cause serious physical, mental, emotional, or moral harm to the children.

Decided August 25, 2000

Reconsideration denied September 6, 2000.

Nelson & Smith, Carlton K. Nelson III, for appellant.

Thurbert E. Baker, Attorney General, Dennis R. Dunn, Deputy Attorney General, William C. Joy, Senior Assistant Attorney General, Shalen A. Sgrosso, Laura W. Hyman, Assistant Attorneys General, Cheeley & Joiner, John P. Cheeley, William L. Tribble, for appellee.

In determining the best interest of a child, a trial court may consider the child’s need for stability in the home and the adverse consequences attendant to extended foster care. In the Interest of M. R., 213 Ga. App. 460, 464 (444 SE2d 866) (1994), overruled on other grounds, In the Interest of C. W. S., 231 Ga. App. 444 (498 SE2d 813) (1998). Such a court is properly concerned with the need for stability in a child’s life. In the Interest of S. H. P., supra at 724 (2). The children have been in foster care in the home of their paternal aunt and uncle since October 1997, a placement made upon the recommendation of both parents. They are doing well in that setting, and their adoption appears likely. While the appellant argues by her brief on appeal that the progress she has made in achieving the goal established by the case plans aimed at reunifying the family, as well as progress in her personal life, demonstrates her capacity to be an effective parent, “‘the decision as to a child’s future must rest on more than positive promises which are contrary to negative past fact. [Cit.]’ ” In the Interest of D. I. W., supra at 646. Also, “ ‘(t)he same factors which prove a parent’s inability to properly raise [her] children may also serve to show that termination of parental rights would be in the children’s best interests. (Cit.)’ In the Interest of V. S., [230 Ga. App. 26, 30 (495 SE2d 142) (1997)].” In the Interest of S. H. P., supra.

Accordingly, the juvenile court’s finding that the termination of parental rights is in the best interests of the children was also authorized by clear and convincing evidence.

Judgment affirmed.

Blackburn, P. J, and Barnes, J., concur.

       The father's parental rights in the two children were also terminated, although he has not subsequently appealed.

       In doing so, the appellant, by brief, concedes that the children were deprived within the meaning of OCGA § 15-11-81 (b) (4) (A) (i) at the time the termination petition was filed. Inasmuch as the juvenile court’s order determining the children to be deprived was not appealed, such status is binding on appeal. In the Interest of B. P., 207 Ga. App. 242, 244 (427 SE2d 593) (1993).

       Perhaps illustrative of her depression, at trial the appellant identified a State’s Exhibit 7 as a photograph depicting cigarette burns on her arm. She explained, “Me and this guy was playing chicken and he put a cigarette there; that’s how this got there.”

       It is undisputed that the “[appellant] is living in another [c]ounty in a relative’s home in a small three bedroom house. One bedroom has a [ ]hole in the roof and is unusable. Should the children be returned to the mother, they would be required to live in the aunt’s room and not in the mother’s room.”

       It is also undisputed that “[appellant’s husband pled] guilty to a criminal offense related to child molestation in regard to his [oldest daughter, then approximately five], and the [appellant] was similarly charged but those charges were dropped in a plea bargain arrangement whereby the father pleaded guilty to offense of sexual battery against [such] daughter.”


author: Blackburn, Presiding Judge.

text:
    A00A1310.
    MOONEY v. MOONEY.
    (538 SE2d 864)
   Blackburn, Presiding Judge.

In the second appearance of this domestic relations case before this Court, Patsy Ann Mooney appeals the trial court’s denial of her motion for summary judgment and the grant of summary judgment to Jackie “Jack” Mooney on her claim for child support for their grandchild. Mooney v. Mooney. For the reasons discussed below, we affirm.

Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. OCGA § 9-11-56 (c). A de novo standard of review applies to an appeal from a grant of summary judgment, and we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant.

Brown v. Ohio Cas. Ins. Co.

Viewed in this light, the record shows that Steve Mooney, the son of the parties herein, had a daughter, A. M. M., and that shortly after her birth, the child lived with Patsy and Jack Mooney intermittently. When A. M. M. was three years old, she began living with Patsy and Jack Mooney.

In 1989, Patsy and Jack Mooney separated, although they continued to occupy the same residence. In 1990, the parents of A. M. M. agreed to give physical custody of A. M. M. to Patsy and Jack Mooney, but they retained their parental rights and responsibilities. However, after obtaining custody of A. M. M., the Mooneys received no financial support for her from her parents. In 1992, Patsy and Jack Mooney were divorced in Georgia. The divorce decree incorporated a settlement agreement, but neither the decree of divorce nor the settlement agreement addressed custody of or support for A. M. M.

Six years after the divorce, Patsy Mooney filed the present action to domesticate the North Carolina order awarding custody of A. M. M. and for child support. Jack Mooney answered the complaint, denying he was obligated to pay child support and asserting that the complaint failed to state a claim. The trial court domesticated the custody award, reserving for determination whether Jack Mooney was obligated to provide child support to Patsy Mooney. Subsequently, the trial court granted Jack Mooney’s motion to dismiss for failure to state a claim, finding that under the circumstances, he could not be required to pay child support. Additionally, the trial court determined that the complaint failed to state a claim for promissory estoppel.

Patsy Mooney appealed only the dismissal of the promissory estoppel claim. In Mooney v. Mooney, supra, we reversed the trial court, holding that Patsy Mooney’s complaint stated a cause of action for promissory estoppel and enforcement of an oral contract between the parties. Subsequently, the trial court ruled on Jack Mooney’s motion for summary judgment and determined that the evidence did not support a cause of action for either promissory estoppel or enforcement of an oral contract. Patsy Mooney appeals from that ruling.

The trial court determined that the evidence did not support Patsy Mooney’s claim for child support under a theory of promissory estoppel or oral contract. Both theories require evidence of an agreement or promise, which evidence the trial court held was lacking here. OCGA § 13-3-44 (a) — Simpson Consulting v. Barclays Bank PLC (a promise is an essential element of a claim for promissory estoppel); OCGA § 13-1-1 — Sanders v. Commercial Cas. Ins. Co. (contract requires an agreement between the parties).

Patsy Mooney asserted in her complaint and by affidavit that she and Jack Mooney had agreed, prior to obtaining custody of A. M. M., that both would provide financial support for her as a condition precedent to accepting custody of her. She further asserted that Jack Mooney had “reaffirmed his agreement” after the Mooneys separated and again after their divorce.

However, the record shows that no such promise or agreement was made. In her deposition, Patsy Mooney testified that she traveled to North Carolina and obtained custody of A. M. M. without discussing it with Jack. Patsy further testified that she and Jack never discussed the financial aspect of raising A. M. M. As Patsy’s deposition testimony contradicts her affidavit, her self-contradictory testimony must be construed against her. Prophecy Corp. v. Charles Rossignol, Inc.

On motion for summary judgment a party’s self-conflicting testimony is to be construed against her unless a reasonable explanation for the contradiction is offered. Gentile v. Miller, Stevenson &c., 257 Ga. 583 (361 SE2d 383) (1987); Prophecy Corp. v. Charles Rossignol, Inc., [supra at 30]. As [Patsy Mooney] offered no explanation for the contradiction between her affidavit and deposition testimony, the trial court was required to eliminate the favorable portions of the contradictory testimony.

(Punctuation omitted; emphasis in original.) Wright v. JDN Structured Finance. After ehminating the favorable testimony, there is no evidence that Jack Mooney promised Patsy Mooney that he would provide and continue to provide financial support for A. M. M. Additionally, there is no evidence that Patsy Mooney relied on such a promise when she went to North Carolina to take custody of A. M. M.

In further support of her contention that Jack had agreed to provide financial support for A. M. M., Patsy points to her testimony that, after their divorce, Jack had said he would help her and A. M. M. Patsy Mooney testified that, to help Jack Mooney establish his bar, she stayed in the house and paid all the bills for the year following their divorce. In exchange for this help, Patsy Mooney stated that Jack Mooney promised to help her and A. M. M. with whatever they needed. She further testified that she and Jack never discussed what “help” meant, or any other particulars of his promise.

“A contract cannot be enforced if its terms are incomplete, vague, indefinite or uncertain. In addition, the party asserting the existence of a contract has the burden of proving its existence and its terms. This proof must be clear and convincing.” (Citations and punctuation omitted.) Cumberland Center Assoc. v. Southeast Mgmt. &c. Corp. The trial court held that a statement that one will help another is too vague and indefinite to meet the formal requisites for a contract between the parties.

Likewise, we find no evidence to support an equitable claim of promissory estoppel.

The principle of promissory estoppel relates to the sufficiency of consideration to enforce a promise; it merely provides that in certain circumstances, the reliance by the promissee or third party upon the promise of another is sufficient consideration ... to render the executory promise enforceable against the promissor. Ordinarily the key difference between a promise supported by consideration and a promise supported by a promissory estoppel is that in the former case the detriment is bargained for in exchange for the promise; in the latter, there is no bargain.

(Citation and punctuation omitted.) Bank of Dade v. Reeves .

An essential element of a claim of promissory estoppel is that the defendant made certain promises to the plaintiff. Simpson Consulting, supra. And, while the promise need not meet the formal requirements of a contract, it must, nonetheless, have been communicated with sufficient particularity to enforce the commitment. “ ‘A promise is a manifestation of an intention to act or refrain from acting in a specified way, so made as to justify a promisee in understanding that a commitment has been made.’ ” (Emphasis supplied.) DPLM, Ltd. v. J. H. Harvey Co. Thus, this Court has found promissory estoppel enforced a promise to abide by covenant provisions and a promise to monitor timber removal and cleanup operations on certain land. Canterbury Forest Assn. v. Collins; Ambrose v. Sheppard. See DPLM, Ltd., supra (evidence showing defendant’s interest in expanding a particular store and authorization to perform work in the location store would be located supported claim for promissory estoppel); Kent v. Brown (promise to pay expert for his testimony coupled with expert’s testimony at deposition and at trial supported claim for promissory estoppel).

Estoppel does not apply, however, to vague, indefinite promises. Thus, we have found that a promise to “work something out” regarding future additional construction loans could not be enforced under a claim of promissory estoppel. Bridges v. Reliance Trust Co.; see Reuben v. First Nat. Bank of Atlanta (alleged promise to make construction loans where no particulars regarding the loans were shown by plaintiff was not enforceable under promissory estoppel). A promise to give one’s business to another for an indefinite period was unenforceable, also. Voyles v. Sasser.

In the present case, Patsy Mooney testified that Jack Mooney promised that he would help her and A. M. M. However, that promise lacks any particulars. The promised help would come in some unspecified way, at some unspecified time, under unspecified conditions. Such a promise is too vague and indefinite to enforce as a promise of child support under a claim of promissory estoppel.

Finally, Patsy Mooney argues that a person who has had joint custody of a child has also made a legally enforceable promise to provide child support in the future, relying on Wright v. Newman. This reliance is misplaced. Wright held that a legally enforceable obligation to provide child support can be based upon promissory estoppel under the facts therein. Unlike the present case, Wright had promised Newman and her son that he would assume all of the obligations and responsibilities of parenthood. His promise was evidenced by Wright acknowledging paternity by listing himself as the father on the child’s birth certificate, even though he knew he was not the father. Thereafter, for over ten years Wright held himself out as the child’s father. By acknowledging paternity, Wright accepted the obligations of parenthood, including the support obligation. Furthermore, Wright was estopped from denying the obligation to provide child support because Newman, relying on his promise of support, had not sought out the child’s natural father.

Similarly in Brannon v. Brannon, a grandfather who had agreed to provide child support as part of a divorce decree actually paid for 18 months and then stopped paying. Under those circumstances, our Supreme Court held that the grandfather was obligated to continue to provide support. The Supreme Court noted, however, that, absent the agreement, the grandfather had no obligation to provide support.

Both Wright, supra, and Brannon, supra, are factually distinguishable from the present case and provide no support for Patsy Mooney’s claim for child support. Here, there is no evidence of an agreement by Jack Mooney to assume parental obligations. While Patsy and Jack Mooney were given joint custody of A. M. M., her natural parents retained their parental rights and responsibilities, including the obligation of support. The trial court correctly concluded that a grandparent’s previous voluntary support for a grandchild provides no basis for an obligation to provide child support in the future, absent an agreement to do so.

Judgment affirmed.

Eldridge and Barnes, JJ., concur.

Decided September 6, 2000

C. Suzette Ellis-Hoyle, for appellant.

Charles A. Mullinax, for appellee.

       In Mooney v. Mooney, 235 Ga. App. 117 (508 SE2d 766) (1998), we reversed the trial court’s ruling granting Jack Mooney’s motion to dismiss for failure to state a claim.

        Brown v. Ohio Cas. Ins. Co., 239 Ga. App. 251 (519 SE2d 726) (1999).

       Patsy Mooney applied for aid from North Carolina, but discontinued that aid when she learned that North Carolina would look to A. M. M.’s parents for reimbursement.

        Simpson Consulting v. Barclays Bank PLC, 227 Ga. App. 648, 656 (5) (490 SE2d 184) (1997).

        Sanders v. Commercial Cas. Ins. Co., 226 Ga. App. 119, 120 (1) (485 SE2d 264) (1997).

        Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27, 30 (343 SE2d 680) (1986).

        Wright v. JDN Structured Finance, 239 Ga. App. 685, 686 (1) (522 SE2d 4) (1999).

        Cumberland Center Assoc. v. Southeast Mgmt. &c. Corp., 228 Ga. App. 571, 574-575 (1) (492 SE2d 546) (1997).

        Bank of Dade v. Reeves, 257 Ga. 51, 53 (3) (354 SE2d 131) (1987).

        DPLM, Ltd. v. J. H. Harvey Co., 241 Ga. App. 219, 221 (1) (526 SE2d 409) (1999).

        Canterbury Forest Assn. v. Collins, 243 Ga. App. 425 (532 SE2d 736) (2000).

        Ambrose v. Sheppard, 241 Ga. App. 835 (528 SE2d 282) (2000).

        Kent v. Brown, 238 Ga. App. 607 (518 SE2d 737) (1999).

       This is not to say promissory estoppel does not apply to promises of future acts; the doctrine can apply to an executory promise. Simpson Consulting, supra at 656-657.

        Bridges v. Reliance Trust Co., 205 Ga. App. 400 (422 SE2d 277) (1992).

        Reuben v. First Nat. Bank of Atlanta, 146 Ga. App. 864 (247 SE2d 504) (1978).

        Voyles v. Sasser, 221 Ga. App. 305 (2) (472 SE2d 80) (1996).

        Wright v. Newman, 266 Ga. 519 (467 SE2d 533) (1996).

        Brannon v. Brannon, 261 Ga. 565 (407 SE2d 748) (1991).


text:
    A00A1375, A00A1376.
    STUBBS et al. v. RAY et al.; and vice versa.
    (539 SE2d 179)
   Smith, Presiding Judge.

Leonard and Carolyn Stubbs brought suit against St. Francis Hospital, Inc., Dr. Charles Ray III, and Radiology Associates of Columbus, P.C., Dr. Ray’s employer, for damages for medical malpractice. The Stubbses alleged that after an angioplasty performed by Dr. Ray, Leonard Stubbs developed a blood clot in his right leg and that the defendants’ negligence in delaying treatment caused problems resulting in the amputation of this leg above the knee. The defendants answered, denying liability. Eventually, the Stubbses settled with the hospital, and the hospital was dismissed with prejudice from the suit. The action against Dr. Ray and Radiology Associates was tried before a jury, which returned a defense verdict. The Stubbses appeal, contending in their sole enumeration of error that the trial court erred in charging the jury and in allowing written instructions to go out with the jury. Dr. Ray and Radiology Associates cross-appeal, conditioning consideration of the cross-appeal upon reversal of the main appeal. But because we find no error in the judgment below, we need not consider the cross-appeal. We affirm.

1. The record shows that after his angioplasty procedure was completed, Leonard Stubbs was moved from the radiology suite, where the procedure was performed, to a floor of the hospital. The orders Dr. Ray had written included checking his right pedal pulses every 15 minutes for the first hour, then every 30 minutes for the next hour, and then twice a day. His nurse, an LPN, testified at trial that she checked his pedal pulse at noon, and it was “good.” Shortly thereafter, Stubbs began “yelling out loud with pain,” and she was unable to feel a pulse in his right foot. She telephoned radiology to speak with Dr. Ray, but the woman who answered said he could not come to the telephone and took a message. The nurse testified that after holding for a moment, she was told that Dr. Ray “would be up in just a minute.” After a while, when Dr. Ray had not appeared, the nurse called radiology again. This time, she was told that Dr. Ray was in the middle of a procedure with another patient and could not leave.

Dr. Ray acknowledged that a call came in from the floor nurse regarding Stubbs while he was in the middle of another procedure on a different patient. His recollection, however, was that he directed his technician, who took the call, to have the nurse call Dr. Lawhorne, a vascular surgeon who had referred Mr. Stubbs for the angiography. He testified that he heard his technician pass on that message. He never checked again on Stubbs before leaving the hospital that day, because he believed he had given an order to contact another doctor, and he expected it would be carried out. He had no recollection of a second call regarding Stubbs.

No evidence was presented showing that Dr. Lawhorne was ever called by anyone. Dr. Lawhorne arrived at Stubbs’s bedside at approximately 3:00 p.m. and checked Stubbs out to the operating room, to attempt to revascularize the right leg. The next morning additional surgery was performed. Eventually, Stubbs developed an ischemic leg, which was amputated above the knee.

The Stubbses presented the expert testimony of a vascular surgeon, who testified that it fell below the standard of care for Dr. Ray not to follow up on the directive he had given to call Dr. Lawhorne and that it was necessary, to meet the standard of care, “to check and make sure . . . that the orders that we give the nurses to carry out are happening. We can’t assume that it’s happened and then forget about it.”

Notwithstanding this testimony, the trial court charged the jury that if there exists no unusual feature that “calls for an exercise of medical skill or experience, a doctor may reasonably take for granted that the experienced staff of a modern hospital will attend to their ordinary and customary duties without detailed instructions.” The Stubbses contend this charge was error, arguing that this charge, in essence, instructed the jury to disregard their expert’s testimony. They acknowledge, however, that this charge “represents a longstanding principle of Georgia law.”

Indeed, the principle embodied in the charge has long been the law in Georgia. In 1962, this court held:

A physician or surgeon is not negligent in failing to inspect or review the work of nurses, orderlies and other hospital employees in carrying out his instructions where the performance of such tasks does not involve the exercise of medical skill or experience; nor is he negligent in assuming that such employees will attend to their ordinary and customary duties without his having to give them detailed instructions.

Porter v. Patterson, 107 Ga. App. 64, 65, hn. 3 (129 SE2d 70) (1962). See also McClure v. Clayton County Hosp. Auth., 176 Ga. App. 414, 418 (3) (336 SE2d 268) (1985) (applied principle to find no evidence of negligence on part of doctor who assumed that nurses properly placed arm board before surgery); Hill v. Hosp. Auth., 137 Ga. App. 633, 642-643 (II) (11) (224 SE2d 739) (1976) (principle applied to approve charge that physician need not remain at patient’s bedside, but may assume that others employed by hospital are competent to carry out orders); Su v. Perkins, 133 Ga. App. 474, 479 (1) (211 SE2d 421) (1974) (principle applied to hold that physician not negligent in failing to personally supervise administration of injection by hospital nurse or give nurse detailed instructions as to proper method,of injecting prescribed drug).

We cannot agree with the Stubbses that this fact situation is so distinguished from those in the cited cases that the principle should not apply. We find, in fact, no factual difference that would prevent the principle from applying. Therefore, notwithstanding the testimony of plaintiffs’ expert, the trial court did not err in charging the jury on this principle.

2. The Stubbses also maintain that the trial court erred when it gave the jury a printed copy of the charge it had given orally. They again acknowledge, however, that the law in Georgia does not support their contention. Anderson v. State, 262 Ga. 26, 28 (3) (413 SE2d 732) (1992). As in Reese v. State, 241 Ga. App. 350 (526 SE2d 867) (1999),

we fail to see how the jury would be confused by having a transcript of the instructions the court gave orally. Indeed, the contrary is more likely. . . . We believe the trial court’s decision to give the jury a printout of the oral instructions could only have been beneficial here.

(Citations and footnote omitted.) Id. at 351-352 (3).

The Stubbses attempt to distinguish this case from the rule that such written instructions are permissible. They argue that the court’s instruction on the standard of care was somehow deficient because it was not given immediately following the court’s instruction on the elements of medical malpractice, including standard of care. They also focus upon the instruction’s contradiction of their expert’s testimony. But they never objected at trial to the order in which the charges were given, and the charge was a correct statement of the law, regardless of their expert’s testimony. We find no error.

Decided September 6, 2000.

Agnew & Bennett, G. Michael Agnew, Brinkley & Brinkley, Jack T. Brinkley, Jack T. Brinkley, Jr., for appellants.

Hatcher, Stubbs, Land, Hollis & Rothschild, Robert C. Martin, Jr., for appellees.

3. Given, our affirmance of the judgment below, we need not consider the contentions in the cross-appeal.

Judgment affirmed in Case No. A00A1375. Appeal dismissed as moot in Case No. A00A1376.

Johnson, C. J., and Phipps, J., concur.

       Although it appears that the Stubbses have identified in their single enumeration of error two actions of the trial court they believe to be in error, we address them both out of an abundance of caution in our attempt to comply with the Supreme Court of Georgia’s directive in Felix v. State, 271 Ga. 534 (523 SE2d 1) (1999). In the interest of clarity, however, we have separated the two contentions.


text:
    A00A1421.
    PHILLIPS et al. v. SINGLETON.
    (539 SE2d 177)
   Blackburn, Presiding Judge.

Following a jury trial, Donna M. Phillips received a verdict in her favor of $10,747 for injuries she received in a car accident. Contending that the verdict was inadequate as a matter of law, Donna Phillips filed a motion for a new trial, which was denied. Likewise, Anthony Phillips, Donna’s husband, who was awarded $2,000 for loss of consortium, claimed that his verdict was inadequate, and he also filed a motion for new trial, which was denied. On appeal, both Donna and Anthony Phillips challenge the efficacy of the trial court’s decision to deny their motions for a new trial due to an inadequate verdict. See OCGA § 51-12-12. For the reasons set forth below, we affirm.

The record shows that, on June 14, 1992, Donna Phillips was injured in an accident when Sebrina Singleton, after failing to stop at an intersection, drove her car into Donna Phillips’ van. At trial, Singleton admitted her negligence in causing the collision. Following the accident, Donna Phillips, a dentist in the military at the time, developed severe headaches, pain in her neck, and numbness and tingling in her hands. She was diagnosed as having mild whiplash and a loss of normal curvature of the spine; however, a neurological exam produced normal results. Donna Phillips testified that these symptoms began shortly after the accident and have never subsided. Donna Phillips and several of her colleagues further testified that her pain makes it more difficult for her to treat and assist her patients.

Anthony Phillips testified that his relationship with his wife was changed by the accident. He stated that she could no longer perform the housework that she had in the past, that she could no longer lead the athletic lifestyle that she was accustomed to, and that, as a result of her pain, she was simply not the same.

Because she was in the military until 1997, the majority of the services needed for Donna Phillips’ treatment were provided to her at no cost. Evidence was presented, however, that Donna Phillips paid $2,747 in fees to nonmilitary doctors. At the conclusion of the trial, the jury awarded the amount of these fees to Donna Phillips as special damages, along with $8,000 in general damages. The jury awarded Anthony Phillips $2,000 for loss of consortium. Donna and Anthony Phillips appeal these awards, contending that they were inadequate and that the jury acted out of sympathy for Singleton. We disagree.

As a general precept, “[t]he sole measure of damages for pain and suffering is the enlightened conscience of fair and impartial jurors.” Stubbs v. Harmon, Likewise, damages for loss of consortium are general damages whose measure must be left to the enlightened conscience of the jurors. Hightower v. Landrum. Moreover,

an excessive or inadequate verdict is a mistake of fact rather than of law and addresses itself to the discretion of the trial judge who, like the jury, saw the witnesses and heard the testimony. In fact, the trial court’s approval of the verdict creates a presumption of correctness which is not to be disturbed absent compelling evidence. . : . Of course, the appellate court may set aside a jury verdict under OCGA § 51-12-12 (a), but the threshold is extremely high. Our role is not to enter the jury box.

(Citations and punctuation omitted.) Moody v. Dykes.

In this case, there is no compelling evidence that the jurors acted inappropriately in reaching their verdict. Although Donna Phillips testified that she has suffered pain since the accident, there was evidence that her dental practice continues and that she is not prevented from doing the procedures necessary to fulfill the requirements of her job. And, while there was testimony that Donna Phillips’ injuries decreased her efficiency, no evidence was presented to the jury to quantify this claim for purposes of deriving an amount of damages. The jury heard the evidence presented to it, used its enlightened conscience, and quantified the Phillipses’ damages to the best of their ability.

Decided September 6, 2000.

Savage, Turner & Pinson, Robert B. Turner, C. Dorian Britt, for appellants.

Ellis, Painter, Ratterree & Bari, Ryburn C. Ratterree, Sarah B. Akins, for appellee.

Contrary to the Phillipses’ claims, there is also no evidence in the record supporting the argument that the jury was unduly sympathetic toward Singleton, a single working mother earning an hourly wage. To the contrary, Singleton testified that she did not want the jury’s sympathy, and the trial court explicitly instructed the jury that sympathy or compassion should not affect their deliberations in any way. Here, “[t]he jury made its award in its enlightened conscience and based upon the evidence agreed to by all concerned. Its verdict stands.” Id. at 222.

Judgment affirmed.

Eldridge and Barnes, JJ, concur.

       This is the second appearance of this case before this Court. In Singleton v. Phillips, 229 Ga. App. 286 (494 SE2d 66) (1997), we reversed a judgment for Anthony and Donna Phillips, finding that the trial court erred by requiring the Phillipses’ uninsured motorist carrier to remain a named party defendant and by failing to grant the defendants’ motion for partial directed verdict on Donna Phillips’ claim that the collision prevented her promotion to lieutenant colonel in the United States Army.

        Stubbs v. Harmon, 226 Ga. App. 631, 633 (1) (b) (487 SE2d 91) (1997).

        Hightower v. Landrum, 109 Ga. App. 510, 516 (5) (b) (136 SE2d 425) (1964).

        Moody v. Dykes, 269 Ga. 217, 221-222 (6) (496 SE2d 907) (1998).


author: Ellington, Judge.

text:
    A00A1455.
    BARBAZZA et al. v. INTERNATIONAL MOTOR SPORTS ASSOCIATION, INC. et al.
    (538 SE2d 859)
   Ellington, Judge.

Fabrizio Barbazza, Fimesa SPA, and Jonathan Marketing & Sport, Inc. appeal from the trial court’s order granting summary judgment to International Motor Sports Association, Inc. (“IMSA”), Road Atlanta, Ltd., and Ray Hendricks. The appellants’ suit against the appellees asserted tort and contract theories of recovery for physical injuries and property damage resulting from a crash during a race. The appellants also appeal the trial court’s order striking portions of certain affidavits. Finding no error, we affirm.

1. After reviewing the record, we conclude the trial court did not abuse its discretion in striking portions of the two affidavits of witness Antonio Ferrari as to matters which were not relevant or material, which were legal conclusions, which were outside his area of expertise, and which commented on the credibility of other witnesses. Chandler Exterminators v. Morris, 262 Ga. 257, 258-259 (3) (416 SE2d 277) (1992). Further, the trial court did not abuse its discretion in striking portions of the affidavit of plaintiffs’ attorney Robert J. Hantman on the basis that it was an attempt to place inadmissible Information before the court. Id.

2. Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. OCGA § 9-11-56 (c). Our review is de novo, and we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant. Matjoulis v. Integon Gen. Ins. Corp., 226 Ga. App. 459 (1) (486 SE2d 684) (1997).

Viewed in this light, the record reveals that Barbazza was involved in a crash at the Road Atlanta Grand Prix on April 30,1995. Fimesa SPA owned the car Barbazza drove, and Jonathan Marketing sponsored and employed Barbazza to compete in the race. IMSA sanctioned, organized, and conducted the race on the racetrack in Braselton, Georgia, owned and operated by Road Atlanta, Ltd. Federation Internationale de l’Automobile (“FIA”) is the European sanctioning organization recognized by IMSA as the “supreme” motor sports authority; a FIA listing allows a race to be billed as a “full international event.”

Road Atlanta is a 2.52-mile track with nine right turns and three left turns. The terrain is hilly, compared to other racetracks, and challenges the drivers with numerous “blind brows” and narrow stretches where visibility and opportunities to pass slower cars are limited. The April 30, 1995 Grand Prix featured three classes of cars in one race. The fastest class in the race was the world sports car (“WSC”), which included the Ferrari prototype Barbazza drove. The other two classes, GTS-1 and GTS-2, are production cars with much lower maximum speeds than the WSCs, with GTS-2 cars being the slowest. Some cars were driven by amateur drivers, including Hendricks. In such a combined race, the WSCs would be traveling much faster than the GTS cars, overtaking and passing them every several laps. As a result, skill in passing slower-moving cars was as important to a driver’s success as speed. Earlier in 1995, Barbazza raced in two such mixed-class races, one at Sebring and one at Daytona.

To be allowed to race under IMSA’s code, each car and driver had to qualify by recording a certain lap time during qualifying rounds. The IMSA code provided a formula for determining the minimum qualifying requirements, based on the average of the top three finishers. For the Grand Prix, IMSA officials set the requirements at 110 percent within each class and 130 percent “overall.” Therefore, for a WSC driver to qualify, he was required to post a lap time no greater than 110 percent of the average of the fastest three WSC times. For a GTS-2 driver to qualify, he was required to post a time no greater than 110 percent of the average of the fastest three GTS-2 car times and no greater than 130 percent of the average of the fastest three WSC times.

Several of the WSC drivers were concerned about the participation of GTS cars in the race in light of the unique features of the Road Atlanta track and the difference in speed between the WSCs and the GTS cars. In the two days before the race, there was a series of meetings where the drivers raised these concerns with IMSA officials. The WSC drivers insisted that the qualifying standards be strictly enforced. In the end, the IMSA officials allowed drivers to race who had not posted the minimum qualifying requirements, including Hendricks, but promised to “black flag” and remove from the race those drivers who were not maintaining an adequate pace. The drivers also raised a concern about the construction of the tire walls. The tires were not securely anchored to each other and to a guardrail in accordance with the FIA code.

Forty-one cars started the race. Only twenty minutes into the three-hour race, the fastest WSCs, in their thirteenth lap, had lapped Hendricks and Joe Cogbill, both driving GTS-2 cars, three times. As Hendricks entered the straightaway between Turn 12 and the finish line, Cogbifl’s car tapped Hendricks’ rear bumper, causing Hendricks to spin around, and both cars hit the tire wall on the left. Crash debris and tires dislodged from the wall spilled onto the track as three WSCs came out of Turn 12. The first WSC driver moved to the right and avoided the debris. Barbazza, driving the second WSC, also pulled to the right and away from the debris but spun out. The third WSC, driven by Jeremy Dale, then “t-boned” Barbazza’s car at close to 150 mph, literally splitting it in half. Barbazza was injured in the crash and has no memory of the race or the drivers’ meetings before the race.

As a condition of entry, Barbazza signed a waiver of liability and indemnity agreement releasing the track owner (Road Atlanta), the sanctioning organization (IMSA), and participants (including Hendricks) from damage “whether caused by the negligence of the releasees or otherwise.” To the extent the appellants asserted a claim for simple negligence, the release Barbazza executed demanded summary judgment. My Fair Lady of Ga. v. Harris, 185 Ga. App. 459, 460-461 (364 SE2d 580) (1987).

3. An injured party may recover for acts of gross negligence despite a valid release for negligence. See Turner v. Walker County, 200 Ga. App. 565, 566 (2) (408 SE2d 818) (1991); Hawes v. Central of Ga. R. Co., 117 Ga. App. 771, 772. (162 SE2d 14) (1968). See also Wade v. Watson, 527 FSupp. 1049, 1051-1052 (N.D. Ga. 1981). But, in this case, the appellants identified no evidence of gross negligence on the part of any of the appellees. With regard to IMSA’s decision to allow Hendricks to race, the IMSA code gave the race officials discretion to waive the qualifying requirements. No evidence was presented that this discretion was exercised in a careless manner. Similarly, as to the failure to “black flag” Hendricks before he collided with Cogbill, the decision to remove a racer from the race is a complex, discretionary one. No evidence was presented that this discretion was exercised in a careless manner. With regard to any failure to comply with FIA safety rules and standards, for example, as to qualifying requirements or tire wall construction, no evidence was presented that either IMSA or Road Atlanta was required to apply FLA standards. Furthermore, the appellants presented no expert evidence that Road Atlanta’s construction and maintenance of the tire walls violated industry standards. Summary judgment on the appellants’ claims for gross negligence was appropriate. Levine v. Keene, 178 Ga. App. 832 (344 SE2d 684) (1986).

4. The appellants’ theories of fraud and misrepresentation and violation of assumed duties were based on IMSA’s and Road Atlanta’s alleged failure to address the drivers’ safety concerns as promised, specifically, by “black flagging” slow drivers and by upgrading the tire wall. The appellants argue that by failing to take these actions IMSA and Road Atlanta exposed Barbazza to greater risks than he willingly assumed. We cannot agree. There is no dispute that Barbazza was an elite professional race car driver who knew that racing is a dangerous profession. There is no dispute that Barbazza knew that the April 30,1995 race would include slower GTS cars and that racing a WSC in a race with GTS cars was dangerous due to the difference in speeds. There is no dispute that Barbazza knew that the Road Atlanta track was especially challenging. There is no dispute Barbazza knew race officials were allowing drivers who had not satisfied the qualifying requirements to compete. There is no dispute Barbazza knew that in any race other drivers can have accidents or mechanical problems resulting in obstacles on the racetrack. Considering all of these factors, the only reasonable conclusion is that Barbazza assumed the risks of his injuries as a matter of law. Young v. Brandt, 225 Ga. App. 889, 891-893 (3) (485 SE2d 519) (1997).

As to the tire wall, there was no evidence any representative from Road Atlanta promised to rebuild the tire walls before the race to comply with FIA standards. Further, there is no dispute Barbazza observed the tire walls before the race and could have seen that no changes had been made to their construction. Because Barbazza understood the risk of racing on the track under prevailing conditions, summary judgment was appropriate. Young, 225 Ga. App. at 891-893 (3).

5. Finally, there was no evidence that the appellants’ conduct caused the Barbazza/Dale crash. The appellants claimed IMSA knew Hendricks had “a known propensity to cause a crash.” Although we view the evidence and any inferences which logically flow from the evidence in the light most favorable to the appellants on the issue of causation, “a reasonable inference sufficient to create a triable issue of fact cannot be based on mere possibility, conjecture, or speculation.” Ogletree v. Navistar Intl. Transp. Corp, 245 Ga. App. 1, 3 (535 SE2d 545) (2000). In this case, the appellants presented only conjecture or speculation, not evidence, that Hendricks’ speed or manner of driving caused Cogbill to tap his rear bumper. Because the evidence adduced was insufficient as a matter of law to establish that IMSA’s conduct in allowing Hendricks to enter and remain in the race caused the Barbazza/Dale crash, we conclude that the trial court properly granted the appellees’ motion for summary judgment. Shadburn v. Whitlow, 243 Ga. App. 555 (533 SE2d 765) (2000).

Decided September 6, 2000.

Sartain, McKay & Crowell, Frank R. McKay, Strongwater & Cherniak, Leeza R. Cherniak, for appellants.

As to the tire wall, the appellants contend Road Atlanta’s failure to anchor the tires in a certain way caused the crash because loose tires spilled onto the track after the Hendricks/Cogbill crash. But the only evidence of the role of debris in causing the Barbazza/Dale crash is Dale’s statement that he hit Barbazza’s car when he steered away from pieces of race cars, not tires from the wall. Again, summary judgment was appropriate. Jackson v. K-Mart Corp., 242 Ga. App. 274 (529 SE2d 404) (2000).

6. The appellants contend IMSA breached a contractual obligation inherent in the entry form and supplemental regulations to conduct the race in accordance with the FIA code. The entry form specifically provides that the race was sanctioned by IMSA and would be held under the 1995 IMSA code and the supplementary regulations. We conclude the language in the entry form that the race was “listed by FIA as a full international event” does not express plainly and explicitly IMSA’s agreement to strictly implement all FIA standards, and we are not willing to imply such an undertaking from the language of the document. Accordingly, summary judgment was appropriate. Donaldson v. Olympic Health Spa, 175 Ga. App. 258, 259 (1) (333 SE2d 98) (1985).

The appellants also contend the drivers were intended to be third-party beneficiaries of the 1995 Sanction Agreement between IMSA and Road Atlanta which contemplated strict enforcement of the IMSA code, including the qualifying requirements. But it is not apparent from the language of the sanction agreement that the contracting parties intended to confer a direct benefit upon Barbazza to protect him from physical injury. Armor Elevator Co. v. Hinton, 213 Ga. App. 27, 30 (2) (443 SE2d 670) (1994). Thus, summary judgment was proper.

Judgment affirmed.

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

McLain & Merritt, M. David Merritt, Nall & Miller, George R. Neuhauser, Webb, Carlock, Copeland, Semler & Stair, Dennis J. Webb, Eric J. Sharon, for appellees.