author: Pope, Presiding Judge.

text:
    A99A1919.
    SZUROVY v. OLDERMAN et al.
    (530 SE2d 783)
   Pope, Presiding Judge.

Rebecca Szurovy appeals the grant of summary judgment in her legal malpractice action against the attorneys who represented her in a divorce action: John Olderman, and the law firm of Davis, Matthews & Quigley, P.C. For the following reasons, we reject Szurovy’s arguments and affirm.

Szurovy filed a complaint against defendants for legal malpractice and breach of fiduciary duty, alleging that they negligently failed to negotiate an award of alimony for her and failed to preserve her right to seek future alimony from her former husband, Edward Szurovy. She claimed that as a result of defendants’ acts she is now barred from pursuing a modification action to seek alimony from Mr. Szurovy as a result of a change in his circumstances and financial wealth. Ms. Szurovy’s complaint included counts for negligence, breach of contract, and breach of fiduciary duty; she also set forth a claim for punitive damages and for various expenses of litigation. Contemporaneously with the complaint Ms. Szurovy filed a lawyer’s affidavit which stated that defendants’ conduct in representing Ms. Szurovy constituted legal malpractice, specifically in their failure to preserve her rights to alimony and to provide her with the correct legal advice as to her right to seek future alimony.

After answering the complaint, defendants filed a motion for summary judgment, arguing that, as a matter of law, Ms. Szurovy did not suffer damages or that her damages were too speculative to recover for malpractice. The court granted the motion, and Ms. Szurovy appealed.

The record contains the following undisputed facts: in July 1993 Ms. Szurovy filed a lawsuit against Mr. Szurovy for divorce, alimony, child support, and equitable distribution of property. The court held a temporary hearing, and Mr. Szurovy was ordered to pay $2,000 per month in support for Ms. Szurovy and the minor children; he never fully complied with that order.

The case was scheduled for trial, but on the trial date, Ms. and Mr. Szurovy negotiated a settlement through counsel. The agreement granted Ms. Szurovy custody of the children; outlined a visitation schedule; required Mr. Szurovy to pay for an SAT course; required Mr. Szurovy to pay child support of $1,500 per month until the children reached the age of 18; required Mr. Szurovy to split the medical and dental costs not covered by insurance; awarded Ms. Szurovy all proceeds from the sale of the marital residence; required Mr. Szurovy to carry life insurance; provided for general indemnification for debts; allowed Mr. Szurovy to claim one child as a deduction for 1993; and required Mr. Szurovy to pay $1,000 of Ms. Szurovy’s attorney fees. The terms of the agreement were read into the record and affirmed by both parties and their counsel in open court. Because the parties were later unable to agree upon the written terms of a settlement document, the Divorce Decree incorporated a copy of the trial transcript. The agreement did not mention alimony. Mr. Szurovy did not comply with the divorce decree and did not make child support payments until Ms. Szurovy filed a motion for contempt and Mr. Szurovy spent time in jail. Apparently, Mr. Szurovy still owes about $13,000 in back child support.

The evidence regarding the discussions about alimony which Ms. Szurovy and Olderman had is disputed. In her deposition, Ms. Szurovy admitted that she and Olderman discussed alimony early on, but she claimed that on the day the case was settled, they did not discuss alimony. Ms. Szurovy testified that she wanted alimony and that she did not realize that she had waived her alimony rights by agreeing to the settlement. Ms. Szurovy admitted that she was not present for the settlement negotiations between Olderman and Mr. Szurovy’s attorney. On the other hand, Olderman claimed that he and Ms. Szurovy repeatedly discussed alimony and discussed the fact that Mr. Szurovy had repeatedly refused to pay alimony. Olderman testified that he told Ms. Szurovy that, in the absence of any provision for alimony, she was waiving her present and future rights to it. The lawyer who represented Mr. Szurovy also testified that his client repeatedly refused to pay alimony. He recalled that Olderman tried to provide in the agreement for Ms. Szurovy’s future right to alimony, but that his client would not agree to these provisions. In her sole enumeration of error, Ms. Szurovy argues that the court erred in granting summary judgment because the question of proximate causation was a jury question. She claims that summary judgment would have been appropriate only if defendants could show that there was no possibility that alimony would have been awarded in the underlying legal action. Ms. Szurovy contends that defendants did not meet their burden of proving that there were no damages and they simply showed that damages were difficult to ascertain. See generally Freeman v. Pittman, 220 Ga. App. 672 (469 SE2d 543) (1996).

Defendants argue that summary judgment was proper because Ms. Szurovy failed to present any evidence regarding proximate cause or damages. They argue that Ms. Szurovy did not provide any evidence that defendants’ conduct caused her to negotiate a less favorable settlement than she otherwise would have and that, accordingly, her argument that she unknowingly waived her alimony rights must fail. In this regard, defendants cite to the settlement agreement between the Szurovys which provided for $1,500 in child support and Ms. Szurovy’s possession of the marital residence. They argue that Olderman did discuss alimony with her, and they point out that Mr. Szurovy has not paid $13,000 which he owes her.

We agree with defendants and affirm.

In a legal malpractice action, the client has the burden of establishing three elements: (1) employment of the defendant attorney, (2) failure of the attorney to exercise ordinary care, skill and diligence, and (3) that such negligence was the proximate cause of damage to the plaintiff.

(Citation and punctuation omitted.) Perry v. Ossick, 220 Ga. App. 26, 28-29 (467 SE2d 604) (1996). In other words, in a legal malpractice case, the plaintiff must prove that the attorney’s alleged negligence proximately caused the client’s harm. Jaraysi v. Soloway, 215 Ga. App. 531, 532 (1) (451 SE2d 521) (1994). Proximate cause in a malpractice action requires a plaintiff to demonstrate that “but for the [attorney’s] error, the outcome would have been different; any lesser requirement would invite speculation and conjecture. [Cit.]” Houston v. Surrett, 222 Ga. App. 207, 209 (2) (474 SE2d 39) (1996). These requirements also pertain to malpractice suits arising from settlement negotiations. See, e.g., Whitehead v. Cuffie, 185 Ga. App. 351 (2) (364 SE2d 87) (1987).

To prevail at summary judgment under OCGA § 9-11-56, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law. OCGA § 9-11-56 (c). A defendant may do this by showing the court that the documents, affidavits, depositions and other evidence in the record reveal that there is no evidence sufficient to create a jury issue on at least one essential element of plaintiff’s case.

(Emphasis omitted.) Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991). In this case, to satisfy the burden of proof on summary judgment, defendants were required to point out by reference to the record that there was an absence of proof adduced by Ms. Szurovy on the issue of proximate cause. See White v. Rolley, 225 Ga. App. 467, 468 (2) (484 SE2d 83) (1997).

The defendants successfully met their burden by showing that Ms. Szurovy’s action must fail because there is no evidence that she suffered damages as a result of the alleged negligence. Significantly, Ms. Szurovy does not point to any evidence regarding Mr. Szurovy’s financial status, and she does not cite Mr. Szurovy’s present annual income or any of his assets to show that but for the defendants’ actions she could have negotiated a better divorce settlement. Furthermore, there was no evidence regarding the amount of alimony which Ms. Szurovy claims she should have recovered and how that differs from the amounts she actually recovered, nor does she cite any evidence regarding the value of the marital estate. Similarly, Ms. Szurovy has failed to cite any specific evidence to support her claim that the lost opportunity for future modification of alimony was harmful. Instead, she simply relies on a generalized claim that she unknowingly forfeited her alimony rights.

Because Ms. Szurovy failed to show that she could have negotiated a better agreement or that she would have obtained better results in a trial, she has failed to establish damages and proximate cause. As a matter of law, her claims of damage are speculative. Importantly, in the absence of any showing of harm, there is no evidence that any alleged negligence was the proximate cause of damage to the plaintiff “It stands to reason that if there is no harm resulting from the breach of duty, then no cause of action exists to be the subject of a lawsuit. . . .” Whitehead v. Cuffie, 185 Ga. App. at 353. Accordingly, summary judgment was proper. See generally Perry v. Ossick, 220 Ga. App. at 30.

Decided March 9, 2000

Reconsideration denied April 12, 2000

Beltran & Associates, Frank J. Beltran, Charlotte K. Ferrell, for appellant.

Troutman Sanders, Daniel S. Reinhardt, Carmie L. McCurry, Toni A. Friess, for appellees.

Judgment affirmed.

Smith and Miller, JJ., concur.

       Defendants contend that the impetus for this lawsuit is Ms. Szurovy’s unsubstantiated belief that Mr. Szurovy will receive a sizable inheritance upon his father’s death.

       We note also that Ms. Szurovy has not shown that any agreement would have been collectible. “A client suing his attorney for malpractice not only must prove that his claim was valid and would have resulted in a judgment in his favor, but also that said judgment would have been collectible in some amount, for therein lies the measure of his damages. [Cit.]” (Punctuation omitted.) Perry v. Ossick, 220 Ga. App. at 29.

       Given the differing circumstances of this case, we find Ms. Szurovy’s reliance on Grayson v. Wofsey, 231 Conn. 168 (646 A2d 195) (1994), misplaced.


source: Caselaw Access Project

author: Smith, Judge.

license: Public Domain

text:
    A99A2020.
    SMALLS v. WALKER et al.
    (532 SE2d 420)
   Smith, Judge.

In this personal injury action, the plaintiff, Frank B. Smalls III, appeals from the trial court’s grant of summary judgment to the defendants, Tashon Walker and Donald Scott Boyd. The trial court granted summary judgment to appellees on the ground that Smalls’s claim against them was barred by the doctrine of judicial estoppel. Smalls contends that the doctrine does not apply and that because a genuine issue of material fact remains for jury resolution, summary judgment was not warranted. We do not agree, and we therefore affirm the judgment.

The record shows that Smalls was employed as a route salesman for the Coca-Cola Company and was injured in a work-related accident on January 17, 1995. His neck was injured, and he was eventually diagnosed with a cervical sprain. He applied for and received workers’ compensation benefits as a result of this accident. He was released to full duty on April 12, 1995. Smalls’s job involved delivering cases of drinks to stores on his route.

On May 13, 1995, Smalls was involved in a second collision, in which Walker reacted to Boyd’s erratic driving by backing up and hitting Smalls’s bumper. Smalls maintains this accident resulted in little injury to him and no damage to his vehicle. According to Smalls, he had been experiencing disabling pain from the first accident that eventually rendered him completely disabled.

Because his pain became increasingly severe, Smalls saw a neurologist, who determined that Smalls had disk herniations. Smalls was placed on bed rest. Further tests confirmed disk protrusion and spinal cord compression. He continued to have severe pain and developed depression.

Believing that the second, minor accident was not the cause of his problems, but that they continued to result from his first, work-related accident, Smalls again sought workers’ compensation benefits. The employer contested the claim, and a hearing was held. Smalls testified at that hearing that he was barely injured in the second collision and that the symptoms he experienced after the second collision remained those he had been having continuously since the first accident. Smalls maintained his disability'was the result of the work-related injury of January 17, 1995.

In his findings of fact and conclusions of law on the second claim, the administrative law judge found that Smalls’s testimony and the medical evidence differed and the medical evidence was “more reliable and more credible.” The ALJ found that medical records showed that the second accident was not minor, that it was sufficient to aggravate a pre-existing condition, and that any disability since that time was related to that nonwork accident. Workers’ compensation benefits were therefore denied.

Smalls appealed this decision. Because Smalls could not work and had overwhelming medical bills, he filed a petition for Chapter 13 bankruptcy in June 1996. He did not list a claim against Walker and Boyd as a potential asset. His plan was confirmed, and he continues to make small monthly payments to his creditors under that plan.

Smalls’s appeals of his workers’ compensation claim were exhausted in December 1996. He filed suit against Walker and Boyd in March 1997. When he became aware of the necessity of including the claim against Walker and Boyd as an asset, he instructed both his bankruptcy counsel and his personal injury counsel “to do whatever was necessary to correct the unintentional oversight.”

Walker and Boyd filed motions for summary judgment, both relying upon judicial estoppel to bar recovery by Smalls. The trial court found that Smalls testified at his workers’ compensation hearing that he was not injured in the second accident, that no evidence existed in the record that Smalls ever amended his bankruptcy petition to list his claim against Walker and Boyd as an asset, and that he claimed to have been injured in the second accident in this action against Walker and Boyd. Based upon these findings, the trial court granted summary judgment to Walker and Boyd.

Although the term judicial estoppel is not explicitly mentioned in the order, it is clear that the trial court relied on that doctrine in awarding summary judgment to the defendants.

The doctrine of judicial estoppel arises under federal law and precludes a party from asserting a position in one judicial proceeding which is inconsistent with a position successfully asserted by the party in an earlier proceeding. The essential function and justification of judicial estoppel are to prevent the use of intentional self-contradiction as a means of obtaining unfair advantage in a forum provided for suitors seeking justice. The primary purpose of the doctrine is not to protect the litigants, but to protect the integrity of the judiciary. The doctrine is directed against those who would attempt to manipulate the court system through the calculated assertion of divergent sworn positions in judicial proceedings and is designed to prevent parties from making a mockery of justice through inconsistent pleadings.

(Citations and punctuation omitted.) Reagan v. Lynch, 241 Ga. App. 642, 643-644 (524 SE2d 510) (1999).

In Georgia, this federal doctrine has been applied to preclude the prosecution of an unliquidated tort claim that a discharged debtor failed to list as an asset on a bankruptcy petition. Wolfork v. Tackett, 241 Ga. App. 633 (526 SE2d 436) (1999). In Southmark Corp. v. Trotter, Smith & Jacobs, 212 Ga. App. 454 (442 SE2d 265) (1994), this court held that failure to disclose such a claim in a Chapter 11 proceeding authorizes entry of summary judgment against the debtor-plaintiff. Id. at 455-456. And in Wolfork, supra, we noted that this duty extends to Chapter 13 bankruptcies as well. Unlike a Chapter 7 bankruptcy, in a Chapter 13 bankruptcy, the bankruptcy estate includes all property acquired by a debtor even during the bankruptcy proceeding. We therefore held in Wolfork that even failure to amend such a petition to include a tort claim acquired by the debtor after the original petition was filed warrants the application of judicial estoppel. Id. at 633-634.

1. We do not agree with the trial court that Smalls’s testimony in the workers’ compensation case works a judicial estoppel preventing him from recovering in this suit. First, the issue of proximate causation — that is, whether his disabling condition was caused by the first, work-related, collision or by the second accident — is a complex question. It involves both opinions of medical experts as to facts and conclusions of law. Smalls was not qualified to render an opinion as to either. His testimony went only to his belief: He did not think he had been injured in the second accident, and he so stated. He had been experiencing similar symptoms on a regular basis after the first collision, and he believed his symptoms were caused by the first collision. Smalls never changed this position. But a judicial body found otherwise, concluding that Smalls’s continuing disability was, in fact, a result of the second accident. Smalls himself never advanced contradictory assertions of fact.

Second, judicial estoppel requires a showing that the plaintiff’s previous position was successfully asserted. Southmark, supra at 455. Smalls was not successful in his workers’ compensation claim.

2. We do, however, agree with the trial court that Smalls failed to carry his evidentiary burden in opposing the motions for summary judgment by failing to correct the record in this case with regard to the prior bankruptcy proceeding. In their motions for summary judgment, the defendants pointed to Smalls’s initial bankruptcy filings, showing that he failed to list this claim as a potential asset of the estate. They argued that Smalls was thereby judicially estopped from recovering on this claim.

This court has so held. See, e.g., Reagan, supra; Byrd v. JRC Towne Lake, Ltd., 225 Ga. App. 506 (484 SE2d 309) (1997); Southmark, supra. Because bankruptcy proceedings require strict disclosure, failure to list a claim is seen as amounting to a denial that such a claim exists. Id. at 455-456. This precludes subsequent assertion of the claim. Id. at 456. We have rejected as insufficient excuses similar to that offered by Smalls for failing to list the claim: that it was unintentional and that he did not know he was required to list it. Byrd, supra at 507-508.

This court has also held that if the debtor initially fails to list the claim as a potential asset but later amends the bankruptcy filing or moves to reopen the bankruptcy proceeding to include the claim, judicial estoppel will not bar a later recovery on the claim. Clark v. Ferino, 235 Ga. App. 444, 446 (509 SE2d 707) (1998); Johnson v. Trust Co. Bank, 223 Ga. App. 650, 651 (478 SE2d 629) (1996). Compare Southmark, supra (judicial estoppel applied where plaintiff did include omitted claims in several amendments).

In his brief in this appeal, Smalls asserts that he has amended his Chapter 13 plan. But this is not shown by the record. The record includes only Smalls’s affidavit, in which he states that he “instructed” his attorneys to correct the oversight and that his attorneys “have contacted” the bankruptcy court and the trustee in bankruptcy and have “made lawful arrangements” to have any recovery he might obtain in this action inure to the benefit of the bankruptcy estate and, eventually, his creditors. But no amended bankruptcy pleadings or motions showing such action were filed with the trial court, notwithstanding that the defendants had filed with the trial court the original pleadings showing the omission and that both defendants asserted as undisputed fact that the filing did not disclose the claim as a potential asset.

In a summary judgment analysis, once the movant has made a prima facie showing that it is entitled to judgment as a matter of law, the burden shifts to the respondent to come forward with rebuttal evidence. In rebutting this prima facie case, an adverse party may not rest upon the mere allegations or denials of his pleadings, but his response, by affidavits or as otherwise provided in OCGA § 9-11-56, must set forth specific facts showing that there is a genuine issue for trial.

(Citations and punctuation omitted.) Etheredge v. Kersey, 236 Ga. App. 243, 244-245 (510 SE2d 544) (1999). Here, although Smalls proffered his affidavit, that affidavit was insufficient to rebut the defendants’ showing that the claim had been omitted from the bankruptcy filing. “In passing upon a motion for summary judgment, a finding of fact which may be inferred but is not demanded by circumstantial evidence has no probative value against positive and uncontradicted evidence that no such fact exists.” (Citations and punctuation omitted.) Id. at 245. Because no evidence in the record shows that the bankruptcy petition was amended or the plan confirmed was reopened to include this claim, Smalls was judicially estopped to assert it. A trial court’s ruling will be affirmed if it is right for any reason. Maddox v. Cumberland Distrib. Svcs., 236 Ga. App. 170, 172 (1) (511 SE2d 270) (1999). We therefore affirm the grant of summary judgment to the defendants.

3. Because we conclude that summary judgment was proper for the reason discussed in Division 2, we need not address Smalls’s remaining contention that summary judgment was improper because a genuine issue of material fact remained for jury resolution.

Decided March 24, 2000

Reconsideration denied April 12, 2000

Calvin A. Rouse, for appellant.

Dye, Tucker, Everitt, Long & Brewton, Troy A. Lanier, Glover & Blount, Percy J. Blount, for appellees.

Judgment affirmed.

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

       Smalls moved this court to supplement the record on appeal with the documents filed in the bankruptcy court. We denied his request, noting that these documents had not been filed in the trial court. We informed Smalls, however, that he could move the trial court to supplement the record with these documents under OCGA § 5-6-41 (f), if they were “material to either party.” He has not done so.


author: Phipps, Judge.

text:
    A99A2418.
    DILLARD et al. v. DENSON et al.
    (533 SE2d 101)
   Phipps, Judge.

Appellants Howard Dillard and Pace Burt, Inc. jointly own an apartment complex in Athens known as The Pace’s at Woodlake. In 1996, while construction of the apartments was in the early stages, the Clarke County Board of Tax Assessors valued the property at $917,000 for ad valorem tax purposes. In 1997, when construction was nearly complete, the Board increased the valuation to $5,759,400. Dillard and Pace Burt, Inc. filed an appeal of the reassessment with the Board, but the Board rejected it as untimely. Then they filed suit against Tax Commissioner Nancy Denson and the members of the Board, seeking a writ of mandamus requiring the Board to accept their appeal and a declaratory judgment on the legality and correctness of the reassessment and the legality of a tax penalty imposed upon them. The trial court granted summary judgment to Denson and the Board. Dillard and Pace Burt, Inc. appeal, asserting the trial court erred by finding they were not entitled to an appeal with the Board and by not making the substantive findings they sought against the reassessment and penalty.

We find the trial court correctly determined as matters of law that Dillard and Pace Burt, Inc. were barred from an appeal through the Board and that it could not consider the merits of their claims against the reassessment and the penalty. Therefore, we affirm the trial court’s grant of summary judgment to the tax commissioner and the members of the Board.

When a county board of tax assessors reassesses the value of property for ad valorem tax purposes, it must provide notice of the reassessment to the taxpayer. The notice must inform the taxpayer of the procedure for initiating an appeal and the time period for doing so.

The Clarke County Board of Tax Assessors hired Datamax, Inc. to print and mail reassessment notices for the 1997 tax year. Datamax’s procedure was to print two sets of each notice. It mailed one copy to the taxpayer and one to the Board’s office. The Board’s office kept its copy as record of the mailing. The Board’s office received and retained a copy of the 1997 reassessment notice for The Pace’s at Woodlake property.

The notice was mailed on April 25, 1997, to Pace Burt, Inc. at 249 Pine Avenue, Albany, Georgia. It specified that any notice of appeal must be filed within 45 days from the date of mailing to initiate an appeal.

249 Pine Avenue was the location of the Burt Group office. Pace Burt, Jr., one of the owners of Pace Burt, Inc., came in every day to get his mail, though he was generally away from the office operating a construction business. Other businesses shared the office.

Appraisers with the Clarke County Board of Tax Assessors routinely reassess property after a building permit application is submitted. The building permit application for The Pace’s at Woodlake listed Pace Burt, Jr. as the owner and 249 Pine Avenue as his address. After the 1996 reassessment, Pace Burt, Inc. received several pieces of correspondence from the Clarke County taxing authorities at the 249 Pine Avenue address. An agent for Pace Burt, Inc. also listed 249 Pine Avenue as the contact mailing address in a letter to the Board challenging the 1996 reassessment. The record does not show that any subsequent change of address information was submitted to the Board.

Pace Burt, Jr. swore in an affidavit that he never received the 1997 reassessment notice. The Burt Group secretary also gave an affidavit swearing that the notice was never received at the office.

On September 22, 1997, almost five months after the notice was mailed, Dillard and Pace Burt, Inc. filed a notice of appeal with the Board and requested a late appeal. The Board denied their request as untimely because it was not filed within 45 days after the notice was mailed, as required by statute. On October 16, 1997, Dillard and Pace Burt, Inc. filed suit against Tax Commissioner Denson and the members of the Board seeking a declaratory judgment and writ of mandamus.

On September 15,1998, Denson and the Board filed a motion for summary judgment, asserting in part that the court lacked subject matter jurisdiction because Dillard and Pace Burt, Inc. had failed to pursue the statutory appeals process through the Board.

On May 20, 1999, the trial court granted the motion for summary judgment. The court ruled that Dillard and Pace Burt, Inc. were not entitled to declaratory relief or to a writ of mandamus because OCGA § 48-5-311 prescribes a time limit for filing appeals, the appeal was not filed within that period, and the Board was powerless to extend the period. The court further chose not to exercise equitable jurisdiction to hear Dillard and Pace Burt, Inc.’s claims related to the legality and correctness of the reassessment and the legality of an imposed penalty because those claims could have been addressed through the statutory appeals process.

Summary judgment is proper where there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. When the movant has made these showings, “the respondent may not rest on [its] pleadings but must put forth evidence showing actual issues for trial. [Cit.]”

The statutory appeals process provides a vehicle for addressing issues related to the valuation, taxability, uniformity and constitutionality of ad valorem taxation. In rare circumstances, equitable jurisdiction may lie in the courts. The trial court correctly determined that neither route was available to Dillard and Pace Burt, Inc. Therefore, as a matter of law, Tax Commissioner Denson and the members of the Board were entitled to summary judgment.

OCGA § 48-5-311 provides that a taxpayer may appeal ad valorem tax issues to the county board of tax assessors, the county board of equalization and ultimately to the superior court. To avail itself of that process, however, a taxpayer must file a notice of appeal with the county board of tax assessors within 45 days of the date the notice of reassessment was mailed to it. Here, the record clearly supports the court’s determination that notice of reassessment was properly mailed to Pace Burt, Inc. and that no notice of appeal was filed within 45 days of the date the reassessment notice was mailed.

Equity jurisdiction is predicated on the lack of an adequate remedy at law. Based on the rationale that the statutory appeals process provides an adequate remedy at law, the Supreme Court of Georgia has promulgated an abstention doctrine for the exercise of equity jurisdiction in tax cases.

Decided March 28, 2000

Reconsideration denied April 12, 2000.

Burt & Burt, Hilliard P. Burt, Cook, Noell, Tolley, Bates & Michael, Edward D. Tolley, for appellants.

Dillard and Pace Burt, Inc. assert that the grant of summary judgment to the tax commissioner and the members of the Board works a violation of their due process rights because the court found it undisputed that they did not receive the reassessment notice. While we agree that the result is harsh, we do not find a due process violation. The United States Supreme Court has described notice by ordinary mail as “a minimum constitutional precondition to a proceeding which will adversely affect the liberty or property interests of any party, whether unlettered or well versed in commercial practice, if its name and address are reasonably ascertainable.” Due process requires notice “reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.” Applying that standard, courts have found first-class mail sufficient to meet due process requirements despite contentions that the notices were never received. We find here that first-class mailing of the 1997 reassessment notice to Pace Burt, Inc. at 249 Pine Avenue, Albany, Georgia, met the “minimum constitutional precondition” and was reasonably calculated to convey notice of the appeals process to Dillard and Pace Burt, Inc. and to give them an opportunity to present any objections.

Finding no error in the conclusions reached by the trial court, we affirm the award of summary judgment to Tax Commissioner Denson and the members of the Board.

Judgment affirmed.

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

Ellen W. Might, for appellees.

       OCGA § 48-5-306.

       OCGA §§ 48-5-306 (b); 48-5-311 (e) (2) (A).

       OCGA § 9-11-56 (c).

        Moore v. Food Assoc., 210 Ga. App. 780, 781 (437 SE2d 832) (1993).

        City of Atlanta v. North by Northwest, 262 Ga. 531, 535-536 (3) (422 SE2d 651) (1992).

        Moreton Rolleston, Jr. Living Trust v. Glynn County Bd. of Tax Assessors, 240 Ga. App. 405, 408, n. 1 (523 SE2d 600) (1995).

       OCGA § 48-5-311 (e) (2) (A).

        Vann v. DeKalb County Bd. of Tax Assessors, 186 Ga. App. 208, 210 (1) (367 SE2d 43) (1988).

       See Moreton Rolleston, supra.

       (Emphasis omitted.) Mennonite Bd. of Missions v. Adams, 462 U. S. 791, 800 (103 SC 2706, 77 LE2d 180) (1983).

        Mullane v. Central Hanover Bank &c. Co., 339 U. S. 306, 314 (70 SC 652, 94 LE 865) (1950); accord Ford v. Ford, 270 Ga. 314, 315 (509 SE2d 612) (1998).

       See In re Eagle Bus Mfg., 62 F3d 730 (5th Cir. 1995); Weigner v. City of New York, 852 F2d 646 (2nd Cir. 1988); Girrbach v. Levine, 522 NYS2d 276 (N.Y. App. 1987).

       But see OCGA § 48-5-380 (taxpayer may file a claim for refund with the governing authority of the county or municipality within three years of the date of the payment of the tax and may bring a subsequent action in superior court if his claim is denied or if it is neither denied nor approved within a year of its filing); Stoddard v. Bd. of Tax Assessors of Grady County, 163 Ga. App. 499 (1) (295 SE2d 170) (1982) (taxpayer returned property at its fair market value, assessors changed the value, taxpayer appealed to the county board of equalization which reduced the assessed value but not to the level the taxpayer demanded and trial de novo ensued in superior court).


author: McMurray, Presiding Judge.

text:
    A00A0491.
    HEARD v. SEXTON et al.
    (532 SE2d 156)
   McMurray, Presiding Judge.

Appellant-plaintiff Clifford Hugh Heard brought suit against his insurance agent, appellee-defendant Rupert Sexton (“defendant”), and Sexton’s employer, appellee-defendant Sexton-Moore Agency, Inc. (“Sexton-Moore”), seeking to recover damages for negligent failure to procure the health insurance coverage plaintiff desired. The superior court granted defendants’ motion for summary judgment, and plaintiff appeals.

It is undisputed in the record that plaintiff went to defendants’ offices to discuss replacing his existing health insurance coverage. Defendant reviewed plaintiff’s existing health coverage and determined it to be similar to a policy available through Continental General Insurance Company (“Continental General”) which capped payable lifetime benefits at $2,000,000, four times the lifetime benefits cap provided by the health insurance policy which was then in force on plaintiff. With defendant’s assistance, plaintiff thereafter applied for the Continental General health insurance recommended by defendant and submitted to a physical examination. Subsequently, Continental General issued plaintiff its health policy substandard as burdened by two elimination endorsements. The first of these denied coverage to plaintiff for “loss caused by or resulting from: rheumatic heart disease and/or complication therefrom.” The second endorsement (the “HLP endorsement”), applicable for 180 days after issuance, excluded coverage under the policy for “hyperlipoproteinemia and/or complications therefrom.” Plaintiff went to defendant after reading the policy, concerned as to the meaning and effect of the elimination endorsements, but signed the policy upon defendant’s explanation of the policy based upon a telephone call to representatives of Continental General. Plaintiff later required quadruple bypass surgery and brought the instant action upon Continental General’s refusal to provide coverage for plaintiff’s surgery as excluded under the HLP elimination endorsement issued as part of the health policy he had been provided by Continental General.

In a single enumeration of error, plaintiff claims that the superior court erred in granting summary judgment to defendant, arguing material issues of fact remain as to: (1) whether defendant exercised due care in procuring the health insurance which he requested, this upon the claim that plaintiff reasonably relied on defendant as an expert in the field of insurance, and (2) whether defendant negligently misrepresented the nature and extent of plaintiff’s coverage. Held:

To the general rule requiring an insured to “read and examine an insurance policy to determine whether the coverage desired has been furnished[,] [cit.],” there are two exceptions. An exception lies “when the agent has held himself out as an expert and the insured has reasonably relied on the agent’s expertise to identify and procure the correct amount or type of insurance[,] [cit.],” unless “an examination of the policy would have made it ‘readily apparent’ that the coverage requested was not issued.” A second exception arises where the evidence reflects a “special relationship of trust or other unusual circumstances . . . which would have prevented or excused [plaintiff] of [his duty] to exercise ordinary diligence . . .” to ensure that no ambiguity existed between the requested insurance and that which was issued. Only the second exception is here applicable.

The first exception does not lie because plaintiff would not have questioned the policy issued as other than the policy he requested had it not been “readily apparent” to him that he had not been issued the insurance he requested. Accordingly, the superior court did not err in granting summary judgment to defendant on this basis. We conclude, however, that the superior court erred insofar as it granted defendant summary judgment on the basis of plaintiff’s negligent misrepresentation claim.

In Robert & Co. Assoc. v. Rhodes-Haverty Partnership, our Supreme Court established the right to recover damages under a theory of negligent misrepresentation. In the context of insurance policies, genuine issues of material fact arise on a negligent representation claim as to the scope of coverage where the evidence shows that an insurance agent’s representation as to a proposed insurance policy would provide coverage, but the policy, in fact, does not.

Decided March 23, 2000

Reconsideration denied April 12, 2000

John C. McCaffery, for appellant.

Goldner, Sommers, Scrudder & Bass, Glenn S. Bass, Matthew P. Lazarus, for appellees.

We conclude that jury questions exist as to plaintiff’s negligent misrepresentation claim in the case sub judice. In this regard, plaintiff deposed that defendant advised him that his policy covered any illness or condition other than a rheumatic heart problem, that defendant made a notation to that effect on the rheumatic heart exclusion, and that plaintiff understood that the notation applied to the whole policy. Defendant’s partner, Michael Moore, gave deposition testimony that supports the plaintiff. Moore deposed that he was present when defendant talked to plaintiff and made the notation, that it was his understanding that the notation applied to the entire policy, and that the notation indicated that plaintiff was covered by the policy unless he had a rheumatic heart condition. Moore further deposed that: “We would not have advised, nor do I think [plaintiff] would have accepted a policy if we said it’s not covered for anything that’s to do with your heart.” In contrast, defendant deposed that the notation applied to the. rheumatic heart condition alone rather than to the whole policy.

Viewing these circumstances in the light most favorable to the nonmoving party, plaintiff, the superior court’s grant of summary judgment to defendant on the negligent misrepresentation issue was error.

Judgment reversed.

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

       Plaintiff brought suit against Sexton-Moore upon the doctrine of respondeat superior.

       Plaintiff deposed that this condition was in the nature of “[fatty] deposit[s] in the blood . .. clogging the arteries.”

       Plaintiff’s medical bills totaled $38,000.

        Hunt v. Greenway Ins. Agency, 213 Ga. App. 14 (443 SE2d 661). See also Greene v. Lilburn Ins. Agency, 191 Ga. App. 829 (383 SE2d 194).

        Hunt v. Greenway Ins. Agency, 213 Ga. App. at 15, supra.

        Jim Anderson & Co. v. ParTraining Corp., 216 Ga. App. 344, 345 (2) (454 SE2d 210), citing Wright Body Works v. Columbus Interstate Ins. Agency, 233 Ga. 268, 271 (210 SE2d 801).

        Credithrift of America v. Whitley, 190 Ga. App. 833, 837 (1) (c) (380 SE2d 489). See also Fregeau v. Hall, 196 Ga. App. 493, 495 (396 SE2d 241).

        Jim Anderson & Co. v. ParTraining Corp., 216 Ga. App. at 345 (2), supra.

       250 Ga. 680, 681-682 (300 SE2d 503).

        Collins v. Life Ins. Co., 228 Ga. App. 301, 302-304 (2) (491 SE2d 514).

        Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474); Collins v. Life Ins. Co., 228 Ga. App. at 302-304 (2), supra.


author: Blackburn, Presiding Judge.

text:
    A00A0427.
    PLEMONS v. WEAVER.
    (533 SE2d 747)
   Blackburn, Presiding Judge.

In this action based on an oral contract, Dale Plemons appeals a jury verdict in favor of Robert J. Weaver, contending: (1) the award of actual damages in the amount of $18,052.38 was not supported by the evidence; (2) the award of attorney fees in the amount of $3,800 was improper; and (3) the trial court erred by allowing Plemons to testify regarding Weaver’s veracity. For the reasons set forth below, we affirm.

Viewed in the light most favorable to the jury’s verdict, the record shows that Plemons owns a farm on which he raises chickens. A serious storm demolished three newly constructed chicken houses on his property. Plemons then contacted his insurance company which sent its representative, Gary Wilson, to Plemons’ farm. After Wilson surveyed the damage, he spoke with Plemons and Weaver, a close friend of Plemons. Wilson stated that he was going to recommend that the insurance company pay $10,000 per chicken house for removal of the debris left by the storm, which the insurance company ultimately paid. He further indicated that the insurance company would not be interested in the raw materials which could be salvaged from the wreckage.

Then, in Wilson’s presence, Plemons and Weaver, who owned machinery capable of cleaning up the property, reached an agreement to remove the debris. Pursuant to this oral contract, Weaver agreed to provide the machinery and manpower necessary to do the job. In return, Plemons promised to (1) allow Weaver to keep one-half of the raw materials salvaged; (2) pay Weaver for one-half of the labor costs; and (3) turn over one-half of the insurance proceeds to Weaver.

The parties do not dispute that Weaver received one-half of the raw materials which were salvaged. Prior to the beginning of the trial below, Plemons admitted that he owed Weaver $3,052.38 for labor costs, and he paid this amount into the registry of the court. Plemons, however, denied that he agreed to pay any part of the insurance proceeds to Weaver. After hearing all of the testimony, the jury awarded Weaver the $3,052.38 which Plemons admitted that he owed along with $15,000 representing one-half of the insurance proceeds. The jury also awarded Weaver $3,800 in attorney fees.

1. Plemons first contends that the evidence was not sufficient to support the jury’s award of actual damages in the amount of $18,052.38. We disagree.

As discussed, the jury’s award of actual damages may be broken down into two parts: (1) a payment to Weaver for labor costs and (2) one-half of the insurance proceeds. Plemons makes no argument regarding the award of $15,000 in insurance proceeds, which was amply supported by evidence of the oral agreement. Instead, his argument revolves solely around the award of labor costs. This argument is misplaced, however, as the jury simply awarded Weaver that amount which Plemons admitted that he owed. On appeal, Plemons now attempts to take issue with the efficacy of his own calculation by criticizing invoices provided by Weaver. This argument is totally devoid of merit.

2. In his second enumeration, Plemons argues that the award of attorney fees levied against him pursuant to OCGA § 13-6-11 was not supported by the evidence. This contention is untenable.

“OCGA § 13-6-11 allows (attorney fees) where the defendant has acted in bad faith, has been stubbornly litigious, or has caused the plaintiff unnecessary trouble and expense. Further, whether or not the defendant/appellant acted in bad faith in its contractual relations is an issue for the jury to determine.” (Punctuation omitted.) [Dept. of Transp. v. Dalton Paving &c., 227 Ga. App. 207, 219 (6) (b) (489 SE2d 329) (1997)]. “Bad faith warranting an award of attorney fees must have arisen out of the transaction on which the cause of action is predicated. It may be found in defendant’s carrying out the provisions of the contract, that is, in how defendant acted in his dealing with the plaintiff. Bad faith other than mere refusal to pay a just debt is sufficient, provided it is not prompted by an honest mistake as to one’s rights or duties but by some interested or sinister motive. So defendants can be held liable for attorney fees if they committed the breach in bad faith.” (Citations and punctuation omitted.) Young v. A. L. Anthony Grading Co., 225 Ga. App. 592, 593 (484 SE2d 318) (1997). “As to whether the defendant was stubbornly litigious or caused the plaintiff unnecessary trouble and expense, mere refusal to pay a disputed claim, without suit is not sufficient to award attorney fees. The key to the test is whether there is a bona fide controversy. Where none exists, forcing a plaintiff to resort to the courts in order to collect is plainly causing.him to go to unnecessary trouble and expense. However, recovery of attorney fees for stubborn litigiousness is not authorized where there is a bona fide controversy.” (Citations and punctuation omitted.) Typo-Repro Svcs. v. Bishop, 188 Ga. App. 576, 580 (2) (373 SE2d 758) (1988).

Wheat Enterprises v. Redi-Floors, 231 Ga. App. 853, 856-857 (1) (c) (501 SE2d 30) (1998).

In this case, there was evidence that Plemons agreed to pay Weaver one-half of his labor costs and one-half of the insurance proceeds in return for removing debris from his property. This agreement was reached prior to the commencement of the work. Although Plemons denied that this agreement was ever reached, the jury resolved this issue against him. As such, the evidence supports a finding that Plemons’ refusal to pay Weaver in full according to their oral agreement was not based on any honest mistake regarding the duties imposed by the contract but rather constituted a breach of that contract in bad faith. Thus, the award of attorney fees is affirmed.

3. Finally, Plemons contends that the trial court erred by allowing Weaver to question him with regard to the veracity of Weaver. Again, this argument is wholly without merit.

During cross-examination, Plemons was asked whether he believed Weaver was a liar, and he answered affirmatively. Plemons’ attorney objected to this question. The trial court then implicitly sustained this objection and instructed Weaver’s attorney to rephrase his question to avoid use of the word “liar.” Plemons’ attorney made no further objections.

As an initial matter, even if Weaver’s question were inappropriate, Plemons would suffer no resulting harm. To the contrary, his testimony that Weaver was a liar, if believed by the jury, could only help his case. Therefore, at the outset, Plemons’ enumeration of error lacks merit, for there must be harm as well as error to warrant a reversal. See Sparti v. Joslin, 230 Ga. App. 346, 350 (3) (496 SE2d 490) (1998).

Moreover, in this case, the trial court did not err in its handling of this matter.

“Although, as pointed out by [Plemons], the truthfulness or veracity of a witness is solely within the province of the jury, and we have held that (i)n no circumstances may a witness’ credibility be bolstered by the opinion of another, even an expert, as to whether the witness is telling the truth,’ we fail to see how [Weaver’s] question violated these principles. [Plemons’] response to the question in no way ‘bolstered the veracity of any witness, but merely emphasized the conflict in the evidence, which it was the jury’s duty to resolve, and the trial court properly charged the jurors (regarding the determination of witness credibility). We find no error here.” (Citations omitted.) Little v. State, 194 Ga. App. 361, 362 (2) (390 SE2d 445) (1990); cf. Dorsey v. State, 259 Ga. 809 (3) (387 SE2d 889) (1990) (prosecutor’s question to defendant that “ ‘everybody’s lying about this whole thing but you, is that right?’ ” while argumentative, does not call for defendant to make credibility determinations about testimony of other witnesses).

Tucker v. State, 228 Ga. App. 321, 324 (2) (491 SE2d 420) (1997).

Decided April 12, 2000.

Robert B. Adams, for appellant.

McCamy, Phillips, Tuggle & Fordham, James H. Phillips, for appellee.

Furthermore, as Plemons’ attorney made no further objections after the trial court instructed Weaver’s counsel to avoid use of the word “liar,” we must assume that he was satisfied with the court’s ruling.

Judgment affirmed.

Eldridge and Barnes, JJ., concur.


text:
    A00A0475.
    STEWART v. THE STATE.
    (533 SE2d 737)
   Blackburn, Presiding Judge.

Following a jury trial, Vincent Stewart appeals his conviction of burglary and aggravated assault, contending that the evidence was insufficient to support the convictions. Because we find the convictions were supported by the evidence at trial, we affirm.

On appeal from a criminal conviction, the evidence must be construed in the light most favorable to the verdict, and the appellant no longer enjoys a presumption of innocence. An appellate court determines only the legal sufficiency of the evidence adduced below and does not weigh the evidence or assess the credibility of the witnesses. To sustain the conviction, the evidence must be sufficient to authorize the jury’s finding of the defendant’s guilt of the crime charged beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). As long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State’s case, the jury’s verdict will be upheld.

(Citations and punctuation omitted.) Eason v. State, 234 Ga. App. 595, 596 (1) (507 SE2d 175) (1998).

The evidence at trial showed that Stewart and his former girlfriend, Kimberly Monroe, had lived together briefly in the apartment Monroe rented. Their relationship ended, however, and Monroe asked Stewart to move out of the apartment because he had become violent. On the evening of August 14, 1997, while Monroe was out, Stewart broke into her apartment, hid in a closet with a gun in his hand, and waited for her. When Monroe returned to the apartment, Stewart came out of the closet, held the gun to her head, and threatened to kill her. This evidence is sufficient to authorize the jury to find Stewart guilty beyond a reasonable doubt of burglary and aggravated assault. See Jackson v. Virginia, supra.

Decided April 12, 2000.

Robert D. Wilson, for appellant.

J. Gray Conger, District Attorney, Melvin E. Hyde, Jr., Assistant District Attorney, for appellee.

Stewart erroneously argues that the evidence at trial was only circumstantial and that the evidence did not exclude every other hypothesis save that of guilt. See Groom v. State, 187 Ga. App. 398 (370 SE2d 643) (1988). In fact, the evidence, in part, consists of the testimony of the victim and Stewart’s own admission to the police; this is direct evidence, not circumstantial. The convictions were authorized by the evidence and are affirmed.

Judgment affirmed.

Eldridge and Barnes, JJ, concur.


text:
    A00A0476.
    FOWLER et al. v. SMITH et al.
    (533 SE2d 739)
   Blackburn, Presiding Judge.

In this second appearance of this case before us, Glenda Fay Fowler and Steve Anthony Smith, beneficiaries of the estates of Troy Alonzo Smith and Ethel J. Smith (collectively the Estate), appeal the trial court’s grant of summary judgment to James Don Smith, the administrator of the Estate (the Administrator), and St. Paul Fire & Marine Insurance Company, the bonding company used by the Administrator to procure a bond. Specifically, the appellants contend that the trial court erred by finding that, following an unsuccessful claim for estate mismanagement brought by them against the Administrator and St. Paul, the litigation costs incurred by St. Paul, pursuant to an indemnity clause in the bond application of the Administrator, should be paid from Estate assets. For the reasons set forth below, we affirm.

In the first appearance of this case, Fowler v. Smith, 230 Ga. App. 817 (498 SE2d 130) (1998), this Court upheld a jury verdict in favor of the Administrator and St. Paul regarding claims of mismanagement brought by appellants. Following this decision, the Administrator petitioned the Probate Court of Whitfield County to allow him to use Estate funds to pay the costs of litigation incurred by St. Paul, for which he was contractually liable pursuant to an indemnity clause contained in his bond application. The probate court approved these disbursements, and the appellants then appealed this ruling to the Superior Court of Whitfield County. The superior court, in turn, approved the disbursement, finding that St. Paul’s expenses, for which the Administrator was liable, were expenses incurred in the administration of the Estate in accordance with OCGA § 53-6-61. It is this determination which the appellants now contend was erroneous based on several grounds.

1. Despite the fact that the probate court approved the actual bond between the Administrator and St. Paul in accordance with OCGA § 53-7-30, appellants contend that the superior court erred in enforcing the indemnity provisions of the bond application because that application was not also approved. Appellants argue that, because the application was not approved, its terms must be considered void. We disagree.

OCGA § 53-7-30 (a) does not require probate court approval of an administrator’s bond application. It provides:

Every administrator, except an administrator with the will annexed, shall upon his qualification give bond, with good and sufficient security, to be judged by the judge of the probate court, in a sum equal to double the amount of the estate to be administered. The bond shall be payable to the judge for the benefit of all concerned, shall be attested by him or his clerk, and shall be conditioned for the faithful discharge of the administrator’s duty as such, as required by law. A substantial compliance with these requisites for the bond shall be deemed sufficient; and no administrator’s bond shall be declared invalid by reason of any variation therefrom as to payee, amount, or condition, where the manifest intention was to give bond as administrator and a breach of his duty as such has been proved.

Therefore, contrary to appellants’ assertions, nothing in this statute voids the bond application simply because there is no evidence that it was approved by the probate court.

Moreover, in this case, the bond application ultimately was approved, at least implicitly, by the probate court when it determined that the indemnity provision was enforceable. By finding that the fees incurred by St. Paul were owed by the Administrator as part of his administration of the Estate, the probate court ratified the terms of the bond application.

Great American Indem. Co. v. Jeffries, 65 Ga. App. 686 (16 SE2d 135) (1941) does not support appellants’ argument that the failure to receive probate court approval voided the terms of the bond application. In Jeffries, we held that a surety cannot be released from its obligation under a bond unless it has properly availed itself of the statutory authority to do so. We explained:

Under the contract the agreement of the surety is, simply, that if the administrator fails in his duty, and loss to an heir or creditor results, the surety will make it good. When the bond is completed the beneficiaries become vested with definite rights in it; they are entitled to have it enforced according to its terms; and neither the administrator nor the surety, together or separately, can make any change in it, even with the approval of the ordinary, unless that change is effected through some proceeding specifically authorized by statute. . . . Unless a contrary provision appears in the bond itself, the surety is bound by his agreement to see the administration through to the end, and this obligation can not be terminated earlier except in a way for which provision has been made by statute.

Id. at 688.

Thus, Jeffries stands for the proposition that a surety cannot completely back out of its obligations as a surety without going through appropriate statutory procedures, unless the face of the bond says otherwise. It does not provide, as appellants contend, that any provision not on the face of the bond, itself, is void.

Furthermore, OCGA § 53-6-61 provides: “Personal representatives shall be allowed reasonable expenses incurred in the administration of the estate, including without limitation expenses for travel, the expenses and premiums incurred in securing a bond, and the expenses of counsel and other agents.” (Emphasis supplied.) Statutory authority, therefore, clearly contemplates that an administrator will be allowed reasonable expenses related to the procurement of an administrator’s bond. In this case, the Administrator became subject to certain expenses related to his bond, namely St. Paul’s litigation costs, due to actions by the heirs of the Estate. Such an expense falls within the scope of OCGA § 53-6-61 as a necessary cost of administration.

2. Appellants contend, in the alternative, that even if the indemnity provision of the bond application is enforceable, the litigation costs incurred by St. Paul were voluntary and, therefore, not subject to reimbursement. Appellants argue that St. Paul’s liability depended on the Administrator’s liability, that the Administrator hired counsel to represent him, and that St. Paul could have relied on the Administrator’s counsel to protect its interests. Appellants then conclude that St. Paul’s separate counsel was superfluous and therefore a voluntary expense.

This reasoning, however, is faulty, and it overlooks the ethical responsibilities of the lawyer-client relationship and the statutory procedures regarding litigation against an administrator’s surety.

As an initial matter, appellants fail to consider the fact that the attorney for the Administrator is ethically bound to consider only his client’s interests, not those of St. Paul. He was not at liberty to balance the interests of the Administrator and St. Paul as well. Therefore, to ensure that its interests were fully protected from its standpoint as a bonding company, not as an estate administrator, St. Paul had to seek its own representation.

Furthermore, OCGA § 53-7-39 provides: “The administrator or executor and his sureties shall be held and deemed joint and several obligors and may be subjected jointly and severally to liability in the same action.” In other words, the appellants, in their initial litigation against the Estate, could have sought recompense solely from the bonding company if they had been successful. Under these circumstances, St. Paul was entitled to retain counsel to protect its interests.

3. Finally, relying on principles of insurance law, the appellants argue that allowing payment of the bonding company’s litigation costs from the Estate is tantamount to allowing an insurance company to subrogate against its insured. Appellants’ analogy does not apply to the facts of this case. By asking that the Administrator be required to post bond, the appellants initiated the process which resulted in the bonding expense being incurred. The bond expense constituted a portion of the expense sought to be reimbursed, of which appellants complain. The subject litigation expense resulted from appellants’ election to sue both the Administrator and St. Paul and were increased by protracted appeals. The appellants have cited no appropriate authority supporting denial of the subject claims.

Moreover, public policy does not support the appellants’ arguments. If appellants’ contentions prevailed, an administrator wrongly sued by heirs could be personally liable to a bonding company also wrongly sued by the heirs. In essence, an administrator could be punished even though he correctly performed his duty. Such a possibility would result in fewer individuals being willing to serve as administrators and fewer bonding companies willing to issue bonds, with a resulting pressure to increase the costs connected therewith. Public policy and common sense require that the appellants’ arguments in this case be rejected.

Decided April 12, 2000.

David J. Blevins, for appellants.

Porter & Barrett, J. Alexander Porter, Charles L. Day, for appellees.

Judgment affirmed.

Eldridge and Barnes, JJ., concur.

       St. Paul is the predecessor in interest to United States Fidelity & Guaranty Company, the original issuer of the bond.


text:
    A00A0638.
    In the Interest of D. B., a child.
    (533 SE2d 737)
   Blackburn, Presiding Judge.

Appellant, the putative biological father of D. B., appeals from the juvenile court’s order terminating his parental rights. As appellant failed to legitimate D. B. under OCGA § 15-11-83 and that statute is constitutional, we affirm.

1. Where parental rights have been terminated, the standard of review is:

whether, after reviewing the evidence in the light most favorable to the appellee, any rational trier of fact could have found by clear and convincing evidence that the natural parent’s right to custody should be terminated. In the Interest of L. F., 203 Ga. App. 522 (417 SE2d 344) (1992). On appeal, this Court neither weighs evidence nor determines the credibility of witnesses; rather, we defer to the trial court’s factfinding and affirm unless the appellate standard is not met. In the Interest of R. N., 224 Ga. App. 202 (480 SE2d 243) (1997).

(Punctuation omitted.) In the Interest of A. K. M., 235 Ga. App. 853, 854 (510 SE2d 611) (1998).

D. B. and her sibling were found to be deprived, and temporary legal custody was granted to the Cobb County Department of Family & Children Services in an order entered December 28, 1998. That order was not appealed. Thereafter, the Department filed its petition for termination of parental rights, and appellant was personally served with a copy of the petition. The petition contained the notice required pursuant to OCGA § 15-11-83 (h).

Pursuant to OCGA § 15-11-83, a biological father who is not the legal father of the child shall be notified of the petition to terminate parental rights and shall be advised that he loses all rights to the child and may not object to the termination of those rights if he does not file a legitimation petition within 30 days of the notice of the petition to terminate parental rights. OCGA § 15-11-83 (h).

In the Interest of A. K. M., supra at 855 (2); In the Interest of E. D. T., 233 Ga. App. 774 (505 SE2d 516) (1998). Here, appellant failed to file a petition to legitimate D. B., despite having received two notices of his need to legitimate and having been given a continuance from the termination hearing so that he could comply with OCGA § 15-11-83 (h). The juvenile court did not err in determining that appellant’s parental rights should be terminated under OCGA § 15-11-83. In the Interest of A. K. M., supra; In the Interest of E. D. T., supra; In the Interest of D. B. G., 226 Ga. App. 29 (2) (485 SE2d 575) (1997).

2. In his second enumeration of error, appellant argues that OCGA § 15-11-83 is unconstitutional because it requires the biological father to exercise his interest in the child by filing a petition to legitimate. This enumeration is without merit, as our Supreme Court has found to the contrary:

“The significance of the biological connection is that it offers the natural father an opportunity that no other male possesses to develop a relationship with his offspring. If he grasps that opportunity and accepts some measure of responsibility for the child’s future, he may enjoy the blessings of the parent-child relationship and make uniquely valuable contributions to the child’s development.” [Lehr v. Robertson, 463 U. S. 248, 262 (103 SC 2985, 77 LE2d 614) (1983)]. . . . This opportunity interest begins at conception and endures probably throughout the minority of the child. But it is not indestructible. It may be lost. ... It is, then, an interest which can be abandoned by the unwed father if not timely pursued. On the other hand it is an interest which an unwed father has a right to pursue through his commitment to becoming a father in a true relational sense as well as in a biological sense.

In re Baby Girl Eason, 257 Ga. 292, 296 (1) (358 SE2d 459) (1987).

OCGA § 15-11-83 operates to protect a biological father’s due process rights to exercise his opportunity interest in his child in the event a termination of parental rights is sought. However, the biological father must claim the opportunity interest. In re Eason, supra. Here, appellant abandoned his opportunity interest by failing to exercise his right, after being provided notice and an opportunity to be heard in áccordance with OCGA § 15-11-83.

Decided April 12, 2000.

David C. Butler, 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, Sanders B. Deen, for appellee.

Judgment affirmed.

Eldridge and Barnes, JJ, concur.


author: Eldridge, Judge.

text:
    A00A0736.
    PERRIN v. STANSELL et al.
    (533 SE2d 458)
   Eldridge, Judge.

Appellant Nita Perrin filed an application for discretionary-review of an order by the Hart County Superior Court denying her petition for unsupervised visitation with her grandchild when temporary custody was in the paternal grandmother. This Court agreed to consider the appeal and, after reviewing the record, finds that the trial court erred as a matter of law in denying the appellant’s petition based upon the grandparent visitation standard in OCGA § 19-7-3. Therefore, we reverse the trial court’s order and remand with directions for a new hearing.

The appellant is the maternal grandmother of the child at issue, B. S., born May 20, 1996. The appellant was present when B. S. was born and babysat B. S. on numerous occasions throughout the next several months. However, in December 1996, when B. S. was six months old, her father, Scottie Stansell, murdered her mother, the appellant’s daughter. Immediately after the murder, Stansell went to the home of his mother, Shirley Ankerich — the appellee (hereinafter “appellee”), where he stayed with B. S. until he was arrested. Stan-sell was convicted of murder and is currently incarcerated in Elbert County.

On January 27,1997, the appellant filed a petition against Stan-sell in Elbert County; the appellant sought permanent custody of B. S. on the basis that Stansell was unfit. Coincidentally, earlier the same day, the Hart County Juvenile Court had granted a petition by the appellee, giving her “shelter care” temporary custody of B. S., pursuant to OCGA § 15-11-18.

For the next several months, the child lived with appellee, who allowed the appellant only supervised visits with B. S. in the appellee’s home. In April 1997, the appellee was allowed to intervene in the appellant’s custody petition against Stansell. The parties then agreed to move the case to Hart County, where the appellee resided.

Eventually, the relationship between the parties soured, and the appellee refused to allow the appellant any further visitation with B. S. The appellant amended her petition to request court-ordered, unsupervised visitation with B. S. as an alternative to custody.

A hearing was conducted on the appellant’s petition on June 10, 1999. At the hearing, however, the appellant informed the trial court that she was abandoning her custody request and intended to seek only visitation rights at that time. Following the presentation of the appellant’s case, the trial court granted appellee’s motion for a directed verdict against the appellant, thereby denying the appellant’s petition. In ruling upon the petition, the trial court applied the following provision to the appellant’s visitation petition:

the court may grant any grandparent of the child reasonable visitation rights if the court finds the health or welfare of the child would be harmed unless such visitation is granted, and if the best interests of the child would be served by such visitation.

OCGA § 19-7-3 (c). See also Hunter v. Carter, 226 Ga. App. 251 (485 SE2d 827) (1997). In its order, the trial court concluded that the appellant presented no evidence to demonstrate that B. S. would be harmed if the appellant’s visitation request was denied. The appellant appeals from the trial court’s order. Held:

1. The appellant contends that the trial court erred as a matter of law in applying the evidentiary standard enunciated in OCGA § 19-7-3 (c), i.e., the grandparent visitation statute, and Hunter v. Carter, supra, to the facts of this case. We agree and reverse the trial court’s order.

(a) OCGA § 19-7-3 was adopted by the Georgia Legislature to provide a mechanism for courts to grant a grandparent visitation rights with his or her minor grandchild over the objections of the child’s parent(s) The statute codified a standard for the trial courts to utilize in balancing the wishes of an alienated grandparent, the rights of the parents, and the interests of the child. See footnote 2, supra. Such standard requires the petitioning grandparent to meet an extremely high evidentiary burden, i.e., to demonstrate by clear and convincing evidence that the potential for harm to the child absent visitation is so great that it outweighs the parents’ constitutionally protected interests in raising that child.

However, no such constitutionally protected parental interests are involved in this appeal, because the custodial grandparent does not stand in the shoes of the parent. The record clearly shows that, although the appellee’s temporary custody of B. S. apparently was extended at least once since the original January 1997 “shelter care” order, the appellee has never acquired permanent custody or legal guardianship. See Edgar v. Shave, 205 Ga. App. 337, 338-339 (2) (422 SE2d 234) (1992). To recognize such relationship as sufficient to apply the provisions of OCGA § 19-7-3 would essentially encourage a “race to the courthouse,” whereby one grandparent can preclude a child’s visitation with another grandparent simply by being the first to file a petition for temporary custody. Further, absent adoption, a third party never acquires the constitutional status of a parent, even if they have legal custody and are a grandparent.

Accordingly, the trial court erred by applying the provisions of OCGA § 19-7-3 to this case.

(b) Further, OCGA § 19-7-3 (b) provides that a grandparent has the right to seek court-ordered visitation of a minor child in the following situations: when the child is the subject of a custody action; if the child’s parents are separated or divorced and the child is living with one parent; if the child’s parents are involved in a divorce action; if the child’s parents are involved in an action to terminate their parental rights; or if the child is being adopted by a blood relative or stepparent. OCGA § 19-7-3 (b); Brooks v. Parkerson, 265 Ga. 189, 190 (1) (454 SE2d 769) (1995). None of these situations are present in this case. The appellant herein has abandoned her custody action against Stansell, the child’s father; custody of B. S. has not been permanently transferred to another; and Stansell’s parental rights have not been terminated or surrendered. See OCGA § 15-11-81.

(c) Finally, although OCGA § 19-7-3 (c) grants a legal custodian the right to challenge the grant of visitation rights to a grandparent, such challenge may not take place until after visitation rights have been granted. Without deciding whether appellee’s status as a temporary “shelter care” custodian qualifies her as the “legal custodian” for the purposes of this statute, it is clear that, under the plain language of OCGA § 19-7-3, the appellee had standing to oppose the appellant’s petition for visitation rights, although not in the status of a parent. The trial court’s finding that the appellee had a “superior legal right to the child under OCGA § 9-7-3 [sic]” was error as a matter of law, because both grandparents are third parties of equal status to the grandchild.

(d) Based upon our finding that OCGA § 19-7-3 does not apply to this case, we reverse the trial court’s order directing a verdict in favor of the appellee and remand this case for a new hearing that is consistent with Division 2, infra.

2. Upon rehearing, the trial court will again be confronted with the determination of the proper standard to apply to the facts of this case, as follows: what does a grandparent have to demonstrate in order to gain visitation rights with a grandchild who is in the temporary custody of a third party, i.e., another grandparent or a stranger? This Court finds that, in grandparent visitation cases such as this where parental rights and control are not an issue, it is not necessary for the petitioning grandparent to prove that the child would be harmed without visitation. Compare Brooks v. Parkerson, supra; Hunter v. Carter, supra.

Instead, the petitioning grandparent must demonstrate by a simple preponderance of evidence that visitation is in the best interest of the child. This standard is consistently applied when issues of child custody arise. See OCGA §§ 19-7-1 (b.l); 19-9-3 (a) (2); see also, e.g., Mabry v. Tadlock, 157 Ga. App. 257, 259 (277 SE2d 688) (1981). It also reflects “the express policy of this state to encourage that a minor child has continuing contact with parents and grandparents who have shown the ability to act in the best interest of the child.” OCGA § 19-9-3 (d).

A petitioning grandparent may make such showing by demonstrating the benefits of establishing or continuing an ongoing relationship with the child. As an alternative, the petitioning grandparent can create the rebuttable presumption that visitation is in the child’s best interest by presenting evidence that the petitioning grandparent had a positive, ongoing, previous relationship with the child. If such presumption is established, however, it may be rebutted by demonstrating that future visitation with the petitioning grandparent would be harmful to the child and, therefore, would not be in the child’s best interest. Such evidence does not include personal problems with the legal custodian that do not affect the child.

Such standard is particularly appropriate in this case, wherein the appellant had provided regular, ongoing care for the child until she was six months old, when her mother was killed by her father; the child’s age precluded her from fully bonding to the appellant; the appellant’s ongoing contact with the child was abruptly ended by the appellee, the child’s temporary custodian, at a time when the child was so young that she may not have been able to fully appreciate or verbalize the effect of the appellant’s absence in her life; and the child’s visitation with the appellant was her only opportunity for contact with her maternal relatives. In such case, appellant’s burden would be too high if she was required to present clear and convincing evidence that the child would be harmed without visitation. Such evidentiary standard applies only when a parent or parents are involved.

We find, therefore, that the trial court erred as a matter of law and fact when it concluded that the appellant failed to present evidence that the child would be harmed unless visitation was granted. If the trial court had not utilized the standard under OCGA § 19-7-3, it would have recognized that the appellant fulfilled her burden to present evidence that would support a finding by a preponderance of evidence that visitation was in the child’s best interest, thereby precluding a directed verdict. Accordingly, we remand this case for a new hearing which is consistent with this opinion.

3. The appellant also contends that the trial court’s order failed to provide any specific written findings of fact, as required by OCGA § 19-7-3 (c). While we agree that the trial court’s order contained only conclusions of law and its ruling based thereon, this Court has already determined that OCGA § 19-7-3-does not apply to this case. As such, the trial court is not required to provide written findings of fact absent a motion pursuant to OCGA § 9-11-52. However, as this case has been remanded for rehearing and because of the strong possibility of future requests for appellate review of the outcome of such hearings, this Court strongly recommends that the trial court make specific written findings of fact and conclusions of law to enable this Court to conduct an intelligent review of the merits of such potential appeal. See Grantham v. Grantham, 269 Ga. 413, 414 (1) (499 SE2d 67) (1998); see also In the Interest of S. R., 240 Ga. App. 827, 829 (525 SE2d 403) (1999); In the Interest of C. T., 197 Ga. App. 300, 303-304 (398 SE2d 286) (1990).

Decided April 12, 2000.

Daniels & Rothman, Jeffery A. Rothman, for appellant.

Timmons, Haggard & Carney, Brian S. Carney, for appellees.

4. The appellant’s remaining enumerations are moot.

Judgment reversed and remanded.

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

        Hunter v. Carter, supra, involved a mother’s appeal of a trial court’s order granting the paternal grandparents visitation rights with her daughter over her objection. This Court reversed the order, holding that the grandparents had failed to present any evidence that the child would be harmed absent visitation. Id. at 254.

       Prior to 1996, the statute allowed grandparents to gain visitation if they established that it was in the child’s best interest. See Ga. L. 1993, p. 456, § 1; Brooks v. Parkerson, 265 Ga. 189, 190 (1) (454 SE2d 769) (1995). However, the Supreme Court of Georgia struck down the statute as unconstitutional in 1995, finding that such statute infringed upon the “constitutionally protected interest of parents to raise their children without undue state interference. [Cit.]” (Emphasis supplied.) Id. at 191 (2) (a). The Supreme Court of Georgia noted that, under both the state and federal constitutions, “state interference with parental rights
        to custody and control of children is permissible only where the health or welfare of a child is threatened. [Cits.]” (Emphasis supplied). Id. at 193. See also Hunter v. Carter, supra at 252. In 1996, the Georgia Legislature amended OCGA § 19-7-3 (b) to require that the petitioning grandparent prove by clear and convincing evidence that: (1) the child would be harmed unless visitation is granted, and (2) visitation would be in the child’s best interest. Ga. L. 1996, p. 1089, § 1; Hunter v. Carter, supra. For additional history of Georgia’s grandparents’ visitation statute, see Brooks v. Parkerson, supra at 190, n. 2, and citations therein.

       Stansell, the child’s father and the appellee’s co-defendant, did not respond to the appellant’s amended complaint requesting visitation, did not participate in the trial court’s hearing, and failed to file a responsive brief in this appeal.

       Contrary to appellee’s repeated assertions, a permanent custody order has never been entered in this case.

       See OCGA § 15-11-43. Further, appellee cited In the Interest of K. B., 188 Ga. App. 199 (372 SE2d 476) (1988), during oral arguments to this Court on the issue of appellee’s custodial status. K. B., supra, is distinguishable on its facts, however, in that it deals with parents’ visitation rights to a deprived child placed in the temporary custody of the Department of Family & Children Services.

       Thus, in this case, evidence of the appellant’s ex-husband’s criminal history is irrelevant and inadmissible on the issue of whether visitation with the appellant would be in the child’s best interest, since he is not present in appellant’s household.