author: Ruffin, Judge.

text:
    A99A2055.
    HEATH v. SIMS et al.
    (531 SE2d 115)
   Ruffin, Judge.

This case involves the issue of whether a probate court has jurisdiction over a claim against executors of an estate in which the claimants seek payment of damages for breach of a fiduciary duty. For reasons that follow, we hold that it does.

Brenda Sims Heath, a beneficiary under the will of Curtis Sims, filed a petition in probate court seeking the removal of the estate’s executors, Wayne Michael Sims and Fred Edward Sims. On March 11, 1997, the probate court issued an order stating that “one or both Co-Executors may have certain conflicts of interest and may not have handled all estate matters entirely properly.” But the probate court concluded that any improper actions on the part of the two executors did not rise to a sufficient level to warrant removal and denied Heath’s petition. Nevertheless, the probate court indicated that it would address the possible conflict of interest “at a later date as a continuation of [the] petition or in a final accounting proceeding.”

Heath apparently did not appeal the probate court’s order, but on June 26, 1997, she filed suit against the executors in Fulton County Superior Court seeking damages for breach of fiduciary duty. Heath also requested an equitable accounting of the estate. The executors moved to dismiss the complaint on jurisdictional grounds, and the superior court granted the motion.

With respect to the breach of fiduciary duty claim, the superior court found that the “proper forum” for the dispute was the probate court. The superior court reasoned that a beneficiary could not “invoke the jurisdiction [of the superior court] merely by seeking punitive damages and attorney’s fees for actions the Probate Court has already said would not be enough to support removal of the executors of the estate in question.” With respect to Heath’s petition for an equitable accounting, the superior court noted that the probate court, in its order, indicated it would address the executors’ handling of the estate at a later date or in a final accounting. Thus, the superior court concluded that Heath had adequate remedies in the probate court and that it was unnecessary for a court of equity to address the issues.

1. On appeal, Heath argues that the probate court lacks jurisdiction over the breach of fiduciary duty claim and, thus, the trial court erred in dismissing it. Without citing any authority for the proposition, she asserts that “the subject matter jurisdiction conferred upon the Probate Court does not include tort actions nor is breach of [a] fiduciary duty a ‘general class of cases’ which the Probate Court is empowered to hear.”

OCGA § 15-9-30 (a) (10) provides that probate courts have “original, exclusive, and general jurisdiction” of “[a]ll . . . matters and things as appertain or relate to estates of deceased persons.” Thus, although a probate court clearly does not have jurisdiction over a general breach of duty claim, it appears from the express language of the statute that the probate court does have jurisdiction over a claim that an estate’s executors have breached their fiduciary duty. Accordingly, the relevant inquiry is whether the probate court is divested of jurisdiction if a beneficiary under a will seeks damages for an executor’s alleged breach of a fiduciary duty.

The Supreme Court recently addressed the extent of a probate court’s jurisdiction. In Gnann v. Woodall, the Supreme Court was asked to consider whether a probate court, in refusing to approve the settlement of a malpractice case brought on behalf of an incapacitated ward, had the authority to require attorneys to pay into the court registry the settlement funds the attorneys had disbursed to themselves and then hold them in contempt for failing to do so. In concluding that a probate court does have such authority, the Supreme Court noted that

probate courts have “original, exclusive, and general jurisdiction” over the appointment and removal of guardians, controversies as to the right of guardianship, and “(a)ll other matters and things as appertain or relate ... to persons who are (mentally) incompetent. . . .” OCGA § 15-9-30 (a) (5), (6), (10).

Decided March 10, 2000

Caldwell & Watson, Harmon W. Caldwell, Jr., Wade H. Watson Ill, Melissa S. Price, for appellant.

Although Gnann involved a probate court’s jurisdiction over persons who are mentally incompetent, it serves to remind us that, with respect to areas in which the probate court has been given exclusive, original subject matter jurisdiction, its authority is broad. Likewise, with matters relating to estates, the probate court has exclusive, original jurisdiction. It follows that a claim that an executor has breached a fiduciary duty would not fall outside the jurisdiction of the probate court simply because the plaintiff sought damages. To hold otherwise would allow disgruntled beneficiaries to remove a case from the probate court, the forum best suited to adjudicating such disputes, simply by alleging a claim for damages. For these reasons, we agree with the superior court that the proper forum for Heath’s grievance is the probate court. Accordingly, the superior court did not err in dismissing the complaint.

2. Heath next alleges that the trial court erred in dismissing the petition for an equitable accounting. In Georgia, superior courts have exclusive jurisdiction over equity cases. Thus, to the extent that Heath is entitled to bring an action for an equitable accounting, she can bring the action only in superior court. But it does not automatically follow that Heath is entitled to an equitable accounting.

Not every litigant has a right to an equitable accounting, which “is granted only in carefully prescribed and determined circumstances, such as when an accounting at law is inadequate.” Thus, if Heath has adequate legal remedies in the probate court, she is not entitled to equitable relief. The probate court “has ample authority to investigate charges that an executor is mismanaging an estate, and to require him to give bond.” Because the probate court can provide adequate relief, the superior court did not err in dismissing Heath’s petition for an equitable accounting.

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

Chesnut & Livingston, Tom Pye, for appellees.

       See Gary v. Weiner, 233 Ga. App. 284-285 (1) (503 SE2d 898) (1998) (probate court removed guardian for breach of fiduciary duty).

       270 Ga. 516 (511 SE2d 188) (1999).

       Id. at 517.

       See Bandy v. Smith, 211 Ga. 192, 193-194 (2) (84 SE2d 449) (1954).

        Empire Fire &c. Ins. Co. v. Metro Courier Corp., 234 Ga. App. 670, 671-673 (1) (507 SE2d 525) (1998).

       Ga. Const., Art. VI, Sec. IV, Par. I; Moody v. Mendenhall, 238 Ga. 689 (234 SE2d 905) (1977).

        Herring v. Standard Guaranty Ins. Co., 238 Ga. 261, 262 (232 SE2d 544) (1977).

        Gaines v. Johnson, 216 Ga. 668, 671 (119 SE2d 28) (1961).

       See id.


source: Caselaw Access Project

author: Phipps, Judge.

license: Public Domain

text:
    A99A2060.
    MITCHELL v. THE STATE.
    (531 SE2d 143)
   Phipps, Judge.

Dennis Mitchell appeals his conviction of burglary. He claims the trial court erred by: (1) admitting improper hearsay testimony identifying him as the burglar; (2) admitting improper hearsay testimony regarding his possession of items stolen in the burglary; (3) allowing expert testimony of fingerprint evidence from a nonexpert witness; (4) failing to grant a mistrial on the ground that the State’s use at trial of his fingerprint card from a prior arrest placed his character in issue; and (5) misstating in a jury instruction that the court bore the burden of proving Mitchell guilty beyond a reasonable doubt. Mitchell also asserts his trial lawyer rendered ineffective assistance because he did not obtain and present expert testimony to combat the State’s fingerprint evidence.

We find that the out-of-court statement regarding Mitchell’s identity was admissible to explain the reasonableness of the police investigation. The statement regarding Mitchell’s possession of the stolen articles was admissible as a prior consistent statement. The State’s witness on fingerprint identification was properly allowed to render his opinion. The manner in which the prior fingerprint card was used did not place Mitchell’s character in issue. The court’s misstatement did not prejudice Mitchell in the context of the jury charge taken as a whole. And, finally, Mitchell has not shown that he was prejudiced by deficient performance from his trial counsel. For these reasons, we affirm the judgment of the court.

1. In his opening statement, Mitchell’s attorney asserted that he expected the evidence to show: “[t]hat the police and the state singled Mr. Mitchell out...[,] did not use the process of elimination ...[,] made up their mind from the beginning!,] and didn’t do anything to disprove that or just test that.”

Because Mitchell had challenged the adequacy of the police investigation of other suspects, the State was allowed to present evidence to explain the reasonableness of the investigation’s focus on Mitchell, including testimony of out-of-court conversations. The court did not err in allowing a detective to explain that Mitchell had become a suspect through information received from an unidentified person.

2. At trial, Sharimar Floyd testified that Mitchell was her boyfriend at the time of the burglary and that around that time Mitchell gave wristwatches to her and a friend. The watches were traced to the burglary. During the cross-examinations of Floyd and the investigating detective, defense counsel raised the issue of whether Floyd was motivated to give false testimony because she had a pending drug charge and wanted to court favor with the State and because there may have been a reward offered for information on the perpetrator of this burglary. Mitchell asserts the court erred in allowing the State to elicit redirect testimony from the detective that Floyd told him before she was charged with the drug offense that Mitchell had given her and her friend the watches.

“Where the veracity of a witness is expressly or impliedly [placed in] issue, . . . and that witness is present at trial, under oath, and subject to cross-examination, the prior consistent out-of-court statement of the witness is admissible. [Cits.]” Floyd was present at trial and available for cross-examination, and Mitchell had placed her veracity at issue. The testimony was properly admitted.

3. Detective Ted McDonald testified that Mitchell’s fingerprints matched a print found at the burglary scene. Mitchell asserts McDonald was not qualified to so testify because the court had refused to qualify him as an expert in the field of fingerprint comparisons.

A witness may become qualified to render an expert opinion without ever being formally so declared by the court.

The requirements for qualification as an expert are minimal; generally, nothing more is required to qualify an expert than evidence that the person has been educated in a particular trade, science or profession. [Cits.] Formal education or training in an area of expertise is not necessary, provided the witness possesses the qualifications of such area of expertise through skill and experience. [Cit.]

Additionally, where a witness renders an opinion after his capacity to do so has been established, the witness’s status as lay or expert goes only to the credibility of the witness’s testimony and not to its admissibility.

There is no question that McDonald was qualified to render an expert opinion on fingerprint comparisons. McDonald testified that he worked at the time in the criminal investigation section of the Glynn County Police Department; that he had completed several courses in fingerprint development and classification; that in the four and a half years he had been performing fingerprint comparisons, he had performed possibly thousands; that he had made hundreds of identifications verified as correct by others and that he had never been wrong in any of his identifications.

The record also indicates that the court at least tacitly accepted him as an expert. After the prosecutor tendered McDonald as an expert, the court refrained from declaring that McDonald qualified as an expert witness, saying “that would be up to the jury.” But the court did tell the prosecutor he could proceed with his examination of McDonald. And the court’s later charge on expert witnesses stated that “testimony has been given by certain witnesses who in law are termed experts.” McDonald was the only witness tendered as an expert. No evidence was presented regarding the expert qualifications of any other witness.

It appears the court chose not to announce McDonald’s status as an expert because it did not wish to influence the weight that the jury might place on his testimony. The court did not err in admitting McDonald’s testimony.

4. Based on information linking Mitchell to this burglary, a comparison between Mitchell’s fingerprints and those lifted from the burglary scene was performed before Mitchell was arrested. To perform such a comparison, the police used Mitchell’s prints from a prior arrest. After the positive match using the old set of prints, Mitchell was arrested, and a new set of prints was taken from him. The police compared the new set of prints to those lifted at the crime scene and again got a positive match.

Detective McDonald, who performed the comparisons, testified about the process of identifying one of the prints from the scene as Mitchell’s. Mitchell’s print card from the former arrest was shown to McDonald at trial, and McDonald identified it as Mitchell’s through the Social Security number and date of birth printed on the card. The card was later admitted into evidence for the record only. It was never shown to the jury or sent out with the jury during deliberations.

After McDonald identified the old fingerprint card as Mitchell’s, but before it was admitted into evidence, Mitchell’s counsel moved for mistrial on the ground that the visual presence of the old card was placing Mitchell’s character into evidence. The court denied the motion for mistrial, and Mitchell asserts that ruling was erroneous.

Where, as here, no information was presented to the jury regarding the defendant’s prior arrest and the jury never had the opportunity to glean such information from the fingerprint card itself, the presence and “admission of [the] fingerprint card[] alone . . . [do] not introduce character into evidence. . . .” The court did not err in denying Mitchell’s motion for mistrial.

5. In its final charge to the jury the court stated, ‘Tour only issue that you are to decide is to whether or not the court has proved the defendant guilty beyond a reasonable doubt.” Mitchell asserts the misstatement prejudiced him and possibly conveyed an opinion of the evidence to the jury, which would violate OCGA § 17-8-57.

“ ‘The charge to the jury is to be taken as a whole and not out of context when making determinations as to correctness of same.’ [Cit.]” A review of the court’s charge to the jury shows that before the misstatement the court had correctly instructed the jury several times that the State bore the burden of proof beyond a reasonable doubt. And at no time was the jury misinformed as to the substance of the actual burden. While a correct instruction will not necessarily cure an erroneous one on the same point, we find under the circumstances of this case that the court’s substitution of “the court” for “the State” amounted to a “palpable ‘slip of the tongue’ and clearly could not have misled or confused the jury.”* Nor do we find the court’s misstatement amounted to an expression of opinion on the evidence by the court.

6. To prevail on an ineffectiveness claim, a defendant must make two showings.

(1) that counsel’s performance was deficient, i.e., that counsel’s performance was not reasonable under all the circumstances, and (2) that this deficient performance prejudiced the defense, i.e., that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. ... A reviewing court need not address both components if the defendant makes an insufficient showing on one, nor must the components be addressed in any particular order.

Decided March 10, 2000.

Steven L. Morgan, for appellant.

Stephen D. Kelley, District Attorney, C. Keith Higgins, Assistant District Attorney, for appellee.

Mitchell has not proffered what an expert witness on fingerprint comparisons would have testified on his behalf. And “[a]bsent such a proffer, [Mitchell] cannot show there is a reasonable probability that, but for trial counsel’s failure to call [an] expert as a witness, the trial’s result would have been different.”

Also, the record does not establish that counsel’s failure to seek and present expert testimony was unreasonable. At the hearing on Mitchell’s motion for new trial, counsel testified that he did not seek expert analysis of McDonald’s fingerprint comparison because he had found in previous cases that McDonald was honest and very competent in his work. He had received full and timely discovery from the State regarding its fingerprint evidence and was able to elicit from McDonald on cross-examination that a palm print lifted from a window at the scene did not match Mitchell’s, that McDonald had been asked only to compare Mitchell’s prints to those lifted from the scene, and that McDonald had quickly concluded within 30 minutes of that request that Mitchell’s print matched one of those. There is no contention that there was any other exculpatory information pertaining to the fingerprints. We find Mitchell has not carried his burden of establishing ineffective assistance of counsel.

Because we find no error in the enumerations raised by Mitchell, we affirm his conviction.

Judgment affirmed.

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

       See Holmes v. State, 266 Ga. 530, 531 (2) (468 SE2d 357) (1996); accord OCGA § 24-3-2.

       (Emphasis omitted.) McGee v. State, 205 Ga. App. 722, 726 (9) (423 SE2d 666) (1992); accord Woodard v. State, 269 Ga. 317, 320 (2) (496 SE2d 896) (1998); Carter v. State, 238 Ga. App. 708, 710 (2) (520 SE2d 15) (1999).

       See In the Interest of C. W. D., 232 Ga. App. 200, 207 (3) (501 SE2d 232) (1998).

       Id. at 206.

       See Bailey v. State, 229 Ga. App. 869, 874 (4) (494 SE2d 672) (1997); McLelland v. State, 203 Ga. App. 93, 95 (6) (416 SE2d 340) (1992).

       See McCoy v. State, 237 Ga. 118, 119 (227 SE2d 18) (1976) (jury considers expert’s credentials and gives such weight and credit to his testimony as it sees fit).

        Keller v. State, 231 Ga. App. 546, 548 (4) (499 SE2d 713) (1998).

       (Emphasis supplied.)

        Mitchell v. State, 225 Ga. App. 26, 28-29 (2) (482 SE2d 419) (1997).

       See Bryant v. State, 191 Ga. 686, 688 (13) (13 SE2d 820) (1941).

        Caldwell v. State, 167 Ga. App. 692, 695 (4) (307 SE2d 511) (1983).

       (Citations and punctuation omitted.) Ponder v. State, 201 Ga. App. 388, 389 (1) (411 SE2d 119) (1991).

        Ross v. State, 231 Ga. App. 793, 797-798 (2) (499 SE2d 642) (1998) (citing Ponder, supra); Goodwin v. Cruz-Padillo, 265 Ga. 614, 615 (458 SE2d 623) (1995).


author: Barnes, Judge.

text:
    A99A2144.
    In the Interest of C. P., a child.
    (531 SE2d 117)
   Barnes, Judge.

The Juvenile Court of Monroe County terminated the parental rights of the father of C. P. The father appeals, arguing that the juvenile court’s decision was not supported by clear and convincing evidence. For the reasons that follow, we affirm.

In reviewing the father’s challenge to the sufficiency of the evidence, we determine whether, after reviewing the evidence in the light most favorable to the State, a rational trier of fact could have found by clear and convincing evidence that the natural father’s, rights to custody have been lost. In the Interest of A. C., 230 Ga. App. 395, 396 (1) (496 SE2d 752) (1998). We do not weigh the evidence or determine witness credibility but defer to the juvenile court’s fact-finding. In the Interest of L. H., 236 Ga. App. 132, 133 (1) (511 SE2d 253) (1999).

Viewed in this light, the evidence shows that C. P. was born on May 13, 1993. On August 17, 1993, he came into the custody of the Department of Family & Children Services (“DFACS”) after DFACS received a report that his mother had left him alone. DFACS placed C. P. with his maternal grandmother until October 1995, when she became unable for health reasons to keep him. His natural father had begun visiting him and paying child support six months earlier and sought physical custody of the child. DFACS approved the father’s residence, and the juvenile court placed physical custody of C. P. with his father, under DFACS’ supervision.

For reasons that are not clear from the record, DFACS removed C. P. from his father’s residence a year later, in October 1996, and returned him to his maternal grandmother. Once again, the grandmother’s health deteriorated, and in April 1997, C. P. was placed in foster care, where he has remained. In January 1998, DFACS petitioned the juvenile court to terminate the parental rights of C. P.’s natural father and natural mother. In April 1998, the father legitimated C. P. After a hearing in November 1998, the juvenile court terminated the mother’s rights, but not the father’s.

At the November 1998 hearing, a foster care worker with Spalding County DFACS testified that she evaluated the father’s home for placement and did not approve it. The three-bedroom house did not have adequate space for C. P., with the grandfather of the father’s wife in one bedroom, her grandmother in another bedroom, and the father, his wife, and their two children in the third bedroom. The foster care worker also testified that she observed the father’s five-year-old stepdaughter dipping snuff; when asked about it, the father was not concerned and responded that the child had been dipping snuff since she was two or three. Further, none of the adults in the house returned a signed form allowing the foster care worker to check their criminal backgrounds.

A caseworker with the Monroe County DFACS testified that the father did not visit regularly, had not paid support regularly, and indicated that he did not intend to move from the house that had been evaluated as unsuitable. However, she also testified that C. P. was attached to his father and that he gets excited when he knows his father is coming and goes to him voluntarily. While the father cooperated with the agency as far as visitation, he did not cooperate as. far as letting them know where he was living or working.

The father testified that he had attended every hearing concerning C. P. that he knew about except one. As a result of missing that hearing, he said, a bench warrant was issued for contempt, he spent ten days in jail, he lost his job, and DFACS regained physical custody of C. P. He had made three child support payments in four and a half months and was $2,500 in arrears. He explained that he had not signed the criminal background check form because he did not have time before the investigator went on vacation. He further testified that he was going to move into a two-bedroom apartment at the end of the week, which would be occupied by two adults and three children. Finally, he disputed the caseworker’s testimony that he had missed seven out of fifteen visits scheduled in the previous sixteen months.

C. P.’s guardian ad litem testified that, while he recommended terminating the mother’s parental rights, he was hesitant to recommend the same for the father. The guardian thought the father had made some attempts to do what he needed to do, had legitimated C. P., and had established a relationship with him.

In an order dated November 9, 1998, the juvenile court terminated the parental rights of C. P.’s mother. That issue is not before us in this case. On the same day, the juvenile court signed an order prepared by the father’s attorney that declined to terminate the father’s parental rights. The order included factual findings that the father testified that he had located another place to live with adequate room for C. R; that he had only one criminal conviction, which occurred when he was a juvenile; and that he had contacted the appropriate agency to begin catching up on his child support now that he was working full-time. The court also noted that the record contained no evidence that the father had abused alcohol or drugs.

In January 1999, DFACS again petitioned the juvenile court to terminate the father’s parental rights. At a hearing in March 1999, a supervisor with the Monroe County DFACS testified that after the November 9,1998 hearing, the department sent the father a letter at his last known address, scheduling a visit for November 18, 1998. He did not appear for that visit but did appear at a Citizens Panel Review on November 20, at which he explained that he had moved and had a new address. He also informed the supervisor that he had filed for a divorce. DFACS sent him a letter on November 25, scheduling a December 9 visit, but he did not appear. C. P.’s mother appeared on that day for a scheduled visit with C. P.’s half-siblings and advised DFACS that the father had been arrested on December 3 and was in jail. As of the hearing date, the father had not contacted the department since the November 20, 1998 Citizens Panel Review. He also had not called or written to the child since he was incarcerated.

A Griffin police officer testified that he had arrested the father on December 3, 1998, for misdemeanor marijuana possession. At the time of this arrest, the father had an outstanding arrest warrant against him for probation violations, which was issued in February 1998. The father had been placed on probation after pleading guilty in August 1989, when he was 17, to a felony charge of entering an automobile with intent to commit theft and failure to report an accident. He was not charged as a juvenile but pled guilty as an adult in superior court. The father’s probation officer testified at the termination hearing that, once the possession charge was resolved, he would schedule a probation revocation hearing. Finally, the probation officer testified that the father has approximately two years left on his 1989 sentence.

A special agent with the Griffin/Spalding County Narcotics Task Force testified that the father had been convicted of affray in 1996 and was given four years on probation.

The father testified that his December 1998 arrest resulted from his holding a bag of marijuana to use and share at a party. He admitted that if he had smoked marijuana at the party, he would probably have failed an employment-related drug test and lost his job. He had no idea how much time was left on his probation and testified that if the remainder of his probation was revoked, he would let his stepmother and father care for C. P. until he was released. He separated from his wife some time between the November 9, 1998 termination hearing and his December 3, 1998 arrest, and now has a girlfriend. Finally, he admitted he had pled guilty to a charge of affray a few years earlier and received three months of probation.

In his response to the second termination petition, C. P.’s guardian ad litem reported that evidence and testimony the father presented at the first termination hearing, “including criminal records, failure to cooperate with DFACS, and failure to properly advise the Court of pending criminal matters,” appeared “to have been given or withheld in an attempt to persuade or incline the Court to avoid termination of the father’s parental rights and was misleading and fraudulent to the Court and all parties at that time.” The guardian recommended terminating the father’s parental rights.

The juvenile court terminated the father’s parental rights in an order dated April 16, 1999. In its order, the court stated it had taken judicial notice of “the entire file” from the previous termination case as well as “the entire case.” The court’s findings of fact included examples of the father’s misconduct and inability to provide properly for C. P. that were presented at the first termination hearing, as well as evidence presented at the second termination hearing. In its order, the court noted that “[a]t the previous hearing, the father stated that he had not been in trouble since he was a juvenile. He lied to the Court.” The court also noted testimony that C. P. has been in custody almost his entire life and needs permanency. The father has moved on many occasions and not informed DFACS, is now separated from his wife and is in jail. The court concluded that it would be in C. P.’s best interest to terminate the natural father’s parental rights.

On appeal, the father enumerates five errors, challenging the sufficiency of the evidence before the juvenile court.

1. Determining whether parental rights should be terminated involves a two-step analysis. In the first step, the court must find parental misconduct or inability. That finding must be supported by clear and convincing evidence that: (i) the child is deprived; (ii) lack of proper parental care or control caused the deprivation; (iii) the cause of the deprivation is likely to continue; and (iv) continued deprivation is likely to cause serious physical, mental, emotional or moral harm to the child. OCGA § 15-11-81 (b) (4) (A) (i)-(iv); In the Interest of L. H., supra, 236 Ga. App. at 132-133 (1). Further, “[e]vidence of past unfitness, standing alone, is insufficient to terminate the rights of a parent in her natural child; clear and convincing evidence of present unfitness is required.” (Citations, punctuation and emphasis omitted.) In the Interest of R. A., 226 Ga. App. 18, 20 (486 SE2d 363) (1997); see also In the Interest of D. C. N. K., 232 Ga. App. 85, 90 (501 SE2d 268) (1998).

If these four factors exist, then the court must take the second step and determine whether terminating parental rights is in the best interest of the child, considering the child’s physical, mental, emotional and moral condition and needs, including the need for a secure, stable home. OCGA § 15-11-81 (a).

We review the evidence in the light most favorable to the State to determine whether a rational trier of fact could have found by clear and convincing evidence that the natural father’s right to custody has been lost. In the Interest of A. C., supra, 230 Ga. App. at 396.

2. The father’s challenge on appeal to the juvenile court taking judicial notice of the previous case record, which was introduced at the March 26, 1999 hearing, is waived for failure to object at the hearing. In the Interest of M. L. P., 236 Ga. App. 504, 510 (2) (512 SE2d 652) (1999).

3. In this case, ample clear and convincing evidence of the four factors established parental misconduct or inability.

(a) First, the evidence showed that C. P. was a “deprived” child. A deprived child is defined as a child who “ [i] s without proper parental care or control, subsistence, education as required by law, or other care or control necessary for his physical, mental, or emotional health or morals.” OCGA § 15-11-2 (8) (A).

The definition of a deprived child, as contained in OCGA § 15-11-2 (8), focuses upon the needs of the child regardless of parental fault. The petition is brought on behalf of the child and it is the child’s welfare and not who is responsible for the conditions which amount to deprivation that is the issue.

(Citation, punctuation and emphasis omitted.) In the Interest of J. P., 267 Ga. 492 (480 SE2d 8) (1997). Based on the facts outlined above, sufficient clear and convincing evidence supports the juvenile court’s finding that C. P. was deprived.

(b) The second factor to consider is whether the father’s lack of parental care or control caused C. P.’s deprivation. After the termination hearing in November 1998, C. P.’s father failed to visit him regularly or pay support because he had been arrested and jailed for marijuana possession.

In determining whether the child is without proper parental care and control, the court shall consider . . . [the] [c] onviction of the parent of a felony and imprisonment therefor which has a demonstrable negative effect on the quality of the parent-child relationship.

OCGA § 15-11-81 (b) (4) (B) (iii).

Although criminal conviction and incarceration do not always compel termination of parental rights, serving time as a convicted felon will support a termination of parental rights when adequate aggravating circumstances are shown to exist — such as failure to comply with goals for family reunification or failure to provide parental care and support.

In the Interest of R. H., 240 Ga. App. 551, 553 (2) (524 SE2d 957) (1999).

These aggravating circumstances may include a criminal history of repetitive incarcerations for the commission of criminal offenses or parole violations, which constitutes an additional factor which may be considered in determining whether the child presently is without the proper parental care and control of the offending parent, and that such is likely to continue.

(Citations, punctuation and emphasis omitted.) In the Interest of B. C., 235 Ga. App. 152, 154 (508 SE2d 774) (1998). We conclude that clear and convincing evidence supports the conclusion that the father’s lack of parental care or control caused C. P.’s deprivation.

(c) Third, in determining whether the child’s deprivation is likely to continue, the juvenile court may consider the parent’s past conduct. In the Interest of A. C., 234 Ga. App. 717, 719 (507 SE2d 549) (1998). The juvenile court specifically found that the father lied about his criminal record in the earlier termination hearing; therefore, his credibility as to other matters was questionable, such as his plans for renting an apartment. The evidence showed that the father did not visit regularly, having seen C. P. only seven out of fifteen visits scheduled during the sixteen months preceding the November 1998 hearing. He did not pay support regularly, having testified that he was at least $2,500 in arrears and had made only three of eighteen weekly payments before the November 1998 hearing. He did not maintain a stable home; between the November 1998 hearing and the March 1999 hearing, he had separated from his wife, moved, and had a new girlfriend. With the exception of legitimating C. P., the father failed to do anything affirmative to remedy the circumstances that led to C. P.’s deprivation five years earlier. Further, the father’s probation officer intends to seek revocation of the father’s remaining two years on probation for a felony. The father conceded at the March 1999 termination hearing that if his probation was revoked, he would not be able to take care of C. P. while in jail. Sufficient clear and convincing evidence supports the juvenile court’s finding that C. P.’s deprivation is likely to continue.

(d) Fourth, clear and convincing evidence showed that continued deprivation likely would harm C. P. Based on the evidence of the father’s past behavior and his inability to comply with significant requirements of the reunification plan, we find that a rational factfinder could have found by clear and convincing evidence that C. P.’s continued deprivation would have a detrimental effect on him. The caseworker testified that C. P. needs permanency, and his foster parents cannot adopt him due to their age. The older C. P. gets, the harder it will be to find adoptive parents.

4. As to the second prong of the termination analysis, the evidence also was sufficient to show that termination of the father’s parental rights was in C. P.’s best interest. We have held that “the court may consider the child’s need for a stable home environment and the detrimental effects of prolonged foster care. Children need permanence of home and emotional stability or they are likely to suffer serious emotional problems.” (Citations omitted.) In the Interest of J. O. L., 235 Ga. App. 856, 858 (510 SE2d 613) (1998). Here, the evidence showed that C. P. needs a stable home and could be harmed by prolonged foster care. In addition, the same factors that show the father’s inability to care for his child support a finding that termination of parental rights would be in C. P.’s best interest. Id. Accordingly, we affirm the order of the juvenile court terminating the parental rights of C. P.’s father.

Decided March 10, 2000.

Wanda G. Johnson, 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, W. Ashley Hawkins, for appellee.

Judgment affirmed.

Blackburn, P. J., and Eldridge, J., concur.


text:
    A99A2231.
    In the Interest of C. G. B., a child.
    (531 SE2d 107)
   Ruffin, Judge.

Appellant, the mother of C. G. B., appeals from the Rockdale County Juvenile Court’s order terminating her parental rights. The mother contends that the trial court erred (1) in finding that the deprivation is likely to continue; (2) in making certain factual findings that are unsupported by the record; (3) in failing to order the Department of Family & Children Services (DFACS) to consider alternatives to terminating her rights; (4) in admitting hearsay; and (5) in considering a report that had not been tendered into evidence. Because the mother’s contentions lack merit, we affirm.

On appeal from a termination of parental rights, we view the evidence in a light most favorable to the juvenile court’s order and determine whether any rational trier of fact could have found by clear and convincing evidence that the mother has lost her parental rights. We neither weigh the evidence nor determine witness credibility. Rather, “we defer to the trial court’s factfinding and affirm unless the appellate standard is not met.”

So viewed, the evidence shows that appellant is the mother of C. G. B., who was born on May 20, 1996. On May 19, 1998, the Rockdale County Sheriff’s Department learned that the mother, who was incarcerated on child cruelty charges, had left C. G. B. with a neighbor who could no longer care for the child. When a deputy retrieved C. G. B., he was dirty, bruised, malnourished and dehydrated. Elaine Manning, a DFACS caseworker who saw C. G. B. shortly after he was taken into custody, described him as gaunt, unhealthy-looking, and very small for his age.

On May 20, 1998, DFACS filed a deprivation petition, and the trial court issued an emergency order placing C. G. B. in the temporary custody of DFACS. Following a detention hearing on the same day, the juvenile court issued an order in which it noted that appellant had a history of drug and alcohol abuse and that she appeared to be under the influence of drugs while at the Rockdale County jail.

A week later, the juvenile court conducted a hearing, at which time the parties stipulated that C. G. B. was deprived. The results from the court-ordered drug test that was tendered at the hearing showed that the mother had cocaine in her system. The court ordered that DFACS prepare a case plan requiring that the mother (1) complete a drug. and alcohol evaluation; (2) submit to random drug screens; (3) release her treatment records to DFACS; (4) maintain stable employment; (5) maintain stable housing and keep DFACS informed of address changes; and (6) complete parenting classes. Appellant also was required to help provide financial support for C. G. B., and C. G. B. was placed in foster care.

On August 14,1998, the mother called DFACS to schedule a visit with C. G. B. Manning arranged to meet with the mother and Alfonso Gonzalez — who the mother said was the child’s father — to discuss her case plan prior to the visit with C. G. B. When they met on August 20, 1998, Manning asked the mother about the fact that she had previously identified a man other than Gonzalez as the father. Appellant claimed she had been “messed up” when she made the earlier statement. When asked what she meant by “messed up,” the appellant said that she had been going through withdrawal from drugs and alcohol.

During the meeting, Manning expressed concern about the length of time that had passed since the mother had last attempted to see C. G. B., and the two discussed whether the appellant wanted her child back. The appellant said that she did want her child, and Manning explained that appellant would have to meet the case plan goals in order to get C. G. B. returned to her. Manning asked about the mother’s progress, and she admitted that she had made no progress toward any of the case plan goals. Manning then asked how the mother planned to support her child, and she said she was going to marry Gonzalez and that he would support them. Manning pointed out that their relationship had been unstable in the past, and appellant acknowledged that there had been some physical violence. But the mother claimed that she and Gonzalez had “worked out their problems.”

On September 3, the mother left a message with DFACS that she had moved to a new address but did not have a telephone number. The mother said that she would call back, but Manning did not hear from her. On September 8, Manning sent a letter to the new address reminding the mother of the case plan requirements, informing her that a panel review was scheduled for September 17, 1998, and requesting that she attend the review. Manning wrote that, given the mother’s lack of progress and motivation, she was going to recommend nonreunification.

When the mother called DFACS on September 14, 1998, her voice was slurred. The mother told Manning that Gonzalez was not C. G. B.’s father and that he had thrown her out of the house. Manning asked the mother where she was, but she would not give her the address. Manning told the mother about the September 17 panel review, and the mother indicated that she knew about it and that she would attend. When Manning asked the mother if she would take a drug screen, she responded “you don’t trust me” and hung up on her.

In September 1998, DFACS transferred the file to caseworker Laura Barnes. Barnes and Manning attended the September 17 panel review, but the mother failed to attend. On September 28, the mother called Barnes to let her know that she had been in jail on September 17 for assaulting a police officer. According to the mother, she had been drinking that day and did not remember whether she had hit the officer. The mother also requested another visit with C. G. B., and a visit was scheduled for October 5 at DFACS’s offices. On that date, C. G. B. arrived with his foster mother at 10:00 a.m., but the appellant did not appear. She called over four hours later to explain that she could not get a ride. But, according to Barnes, the mother lived within walking distance of DFACS at the time.

The mother called Barnes again on October 22, and Barnes asked about her progress with her case plan. According to Barnes, the mother was evasive. The mother said she wanted to see her child, but Barnes asked to meet with the mother prior to scheduling a visit. They arranged to meet on October 27 at DFACS. The mother called on October 26 to tell Barnes that she had no transportation. Barnes told the mother that she would go to the mother’s home instead.

When Barnes arrived at the trailer, she saw an estimated 150-200 cans, most of which were empty beer cans. The mother admitted that there were enough beer cans to fill four Hefty bags but told Barnes that the men who lived in the trailer had drunk the beer. The mother told Barnes that she shared the two-bedroom trailer with her fiancé, Pedro, and four of his relatives. But the mother could not provide Pedro’s last name or the names of any of the other residents. Barnes reminded the mother that the case plan required her to be employed and asked her how she planned to support C. G. B., and the mother responded that she planned to let Pedro support her and her child.

Following this visit, Barnes attempted to call the mother on October 30, November 2, and November 5, but was unable to reach her. A certified letter that Barnes sent to the mother was returned as undeliverable. On November 12, Barnes drove by the trailer where she had met with the mother, and it appeared abandoned. Barnes later returned to the trailer and spoke with the mother’s “fiancé,” Pedro, who said that appellant had left him. Barnes also called the mother’s probation officer and learned that he had not seen the mother since November 25 and did not know where she was. On December 1, DFACS filed a petition to terminate the mother’s parental rights based upon her failure to comply with her case plan.

At the April 22, 1999 termination hearing, the mother testified that she had been incarcerated from January 16 through February 9, 1999, at which time she was transferred to a diversion center. As part of the program at the diversion center, the mother was required to hold a job. If she was not at the job, the mother was required to return to the center. The mother obtained a job at Church’s Fried Chicken. Prior to this job, the mother testified that she had not worked in three and a half years. Although the mother began earning money, she did not contribute toward the support of her child. She claimed that the diversion center took her paychecks for rent and unpaid fines. But she also testified that she was given an allowance out of her earnings.

While at the diversion center, the mother made no attempt to contact DFACS despite the fact that she had telephone privileges. The mother also testified that the diversion center provided passes to leave the facility, but she did not try to obtain a pass to see her child.

At the time of the hearing, the mother was still at the diversion center. She testified that she was scheduled to be released in a matter of weeks and that, when she was released, she planned to move in with her sister. The mother also said that, while at the center, she had undergone drug and alcohol treatment and had started parenting classes. She further testified that she had obtained a Social Security card and was in the process of obtaining her GED.

On May 19, 1999, the trial court entered an order terminating the mother’s parental rights. In concluding that the mother did not comply with the case plan, the trial court found that she failed to (1) obtain treatment for her drug and alcohol addiction; (2) remain in regular contact with DFACS; (3) maintain stable housing and stable employment; (4) provide any financial support for her child; and (5) establish a parental bond with the child. In five enumerations of error, the mother contends that the trial court erred in terminating her parental rights.

The decision to terminate parental rights involves a two-step process. First, there must be a finding of parental misconduct or inability, which requires clear and convincing evidence that (1) the child is deprived; (2) the lack of proper parental care or control is the cause of the deprivation; (3) the cause of the deprivation is likely to continue; and (4) continued deprivation is likely to cause serious physical, mental, emotional or moral harm to the child. If all four findings are made, then the court must determine whether termination of parental rights is in the best interest of the child, considering the child’s physical, mental, emotional and moral condition and needs, including the need for a secure, stable home.

1. In her first enumeration of error, the mother argues that the trial court erred in finding that the deprivation is likely to continue. A trial court can consider a parent’s past conduct in determining whether the deprivation is likely to continue. Here, the mother’s past conduct clearly and convincingly demonstrated that the deprivation is likely to continue.

During her 11 months without her child, the mother saw him only twice. Prior to her incarceration in the diversion center, she made no attempt to comply with any requirement of the case plan. She failed to obtain a job. She did not maintain stable housing, and she did not keep DFACS informed of her whereabouts. Although the diversion center required that the mother get a job, she utterly failed to provide any financial support for her child.

The mother points to the positive steps she has taken since her incarceration to support her assertion that the deprivation is unlikely to continue. But “[t]he decision as to a child’s future must rest on more than positive promises which are contrary to negative past fact.” Under these circumstances, the trial court did not err in finding that the deprivation is likely to continue.

2. The mother further contends that the trial court erred in basing its findings upon allegations not supported by the record. Specifically, she argues that the trial court erred in finding that (1) she failed to obtain treatment for her drug and alcohol addiction; (2) she has a history of chronic, unrehabilitated drug and alcohol abuse; and (3) she lacked a parental bond with C. G. B.

The record demonstrates that, prior to her incarceration in the diversion center, the mother was drunk on several occasions and had cocaine in her system at least once. She admitted that she had a drinking problem and that she had used drugs in the past. Although the mother testified that she had undergone drug and alcohol treatment at the diversion center, she provided no additional evidence to support her self-serving testimony.

Pretermitting whether this evidence is sufficient to support the trial court’s findings that the mother had a history of chronic, unrehabilitated drug and alcohol use and that she failed to obtain treatment, we find no reversible error. The findings regarding the mother’s drug and alcohol use were not the only bases for the trial court’s termination of appellant’s parental rights, “and other competent evidence was sufficient to support a finding of parental misconduct or inability.” Namely, the mother showed an appalling lack of interest in her child, failed to comply with any aspect of the case plan until she was forced to obtain a job while at the diversion center, and even then failed to make any attempt to contact her child.

With respect to the mother’s contention that the trial court erred in finding that she lacked a parental bond with C. G. B., we find this contention meritless. C. G. B. was two years of age when he was taken away from his mother. By the mother’s own admission, she has seen her child only once since signing the case plan in June 1998. It strains credulity to think that a mother could have a meaningful bond with such a young child after such minimal contact. Moreover, Manning, who saw the mother interact with C. G. B. during one visit, testified that she could not tell whether the child even recognized his mother. Accordingly, “[t]he trial court’s findings, as well as its conclusion that the mother’s parental rights should be terminated, are supported by the record, and she has shown no basis for reversal.”

3. We also reject the mother’s assertion that the juvenile court erred in failing to order DFACS to consider less restrictive alternatives to termination. The evidence supports the court’s determination that termination is appropriate.* Additionally, we note that the trial transcript shows that DFACS searched for relatives with whom to place C. G. B. but was unable to locate anyone suitable or willing to care for the child.

Decided March 10, 2000.

4. The mother contends that the trial court erred in admitting prejudicial hearsay evidence. After C. G. B. was taken into DFACS’s custody, his case initially was handled by Helen Renfro, a caseworker who subsequently left DFACS and was not present at the termination hearing. Over objection, the trial court allowed Barnes to testify from Renfro’s case notes. During a break, however, the trial court reconsidered and concluded that the testimony was inadmissible hearsay. The court then stated that it would disregard any hearsay. But appellant argues that the hearsay was so prejudicial that it requires reversal notwithstanding the trial court’s subsequent ruling. We disagree.

During a nonjury trial, it is presumed that the court is able to “sift the wheat from the chaff and select only the legal evidence.” We will reverse the trial court only where there is no legal evidence to support the trial court’s ruling. Here, there was ample admissible evidence supporting the trial court’s determination. Thus, we find no reversible error.

5. In her final enumeration of error, the mother maintains that the trial court erred in considering reports filed by a court-appointed special advocate (CASA) and by allowing the CASA to make a statement at the end of the hearing. As set forth in OCGA § 15-11-33 (d), however, “all information helpfu.1 in determining the questions presented, including oral and written reports, may be received by the court and relied upon to the extent of its probative value even though not otherwise competent in the hearing.” To the extent that any of the information was hearsay, the court is presumed to have disregarded it. Accordingly, we affirm.

Judgment affirmed.

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

Lavigno & Schlueter, Richard R. Schlueter, 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, Mumford, Myers & Mooney, Albert A. Myers III, for appellee.

       In an earlier order, the juvenile court terminated the parental rights of one of many putative fathers, Alfonso Gonzalez. The trial court later terminated the parental rights of several other putative fathers.

        In the Interest of S. N. N., 230 Ga. App. 109 (495 SE2d 602) (1998).

       (Punctuation omitted.) Id.

       Using case notes, a caseworker testified about events from May 27, 1998, the date of the deprivation hearing, to August 13,1998. But the trial court ruled that the testimony was hearsay and that it would not consider the hearsay in its ruling. Accordingly, we have not considered any such testimony.

       OCGA § 15-11-81 (b) (4) (A) (i)-(iv); In the Interest of L. H., 236 Ga. App. 132-133 (1) (511 SE2d 253) (1999).

       OCGA § 15-11-81 (a).

        In the Interest of D. L. T., 238 Ga. App. 491, 496 (519 SE2d 257) (1999).

       (Citation and punctuation omitted.) Id.

        In the Interest of J. K., 239 Ga. App. 142, 145-146 (1), n. 4 (520 SE2d 19) (1999).

        In the Interest of S. C. M. H., 238 Ga. App. 159, 164 (3) (517 SE2d 598) (1999).

       See In the Interest of N. B., 239 Ga. App. 336 (521 SE2d 47) (1999) (parental rights terminated where mother, who was transient, failed to comply with case plan).

        In the Interest of S. C. M. H., supra at 164 (4).

       We note that, despite the trial court’s exclusion of the hearsay evidence, the State cites this testimony in its brief. This use of excluded testimony was unnecessary, and it made this Court’s job far more difficult and time-consuming. We remind the State that attorneys have an affirmative obligation to accurately state the facts of a case and that failure to do so may subject them to fines for contempt. Benson v. State, 233 Ga. App. 58, 59, n. 1 (503 SE2d 316) (1998).

       (Punctuation omitted.) Jafari v. Simpson Organization, 214 Ga. App. 589, 592 (2) (448 SE2d 493) (1994).

        In the Interest of M. A. C., 244 Ga. 645, 655 (4) (261 SE2d 590) (1979).

        In the Interest of M. L. R., 236 Ga. App. 504, 510-511 (2) (512 SE2d 652) (1999).

       Id.

       Id.


text:
    A99A2276.
    A99A2414.
    WYNN v. ARIAS. ARIAS PROPERTIES, INC. v. WYNN.
    (531 SE2d 126)
   Ruffin, Judge.

Arias Properties, Inc. (API) contracted to build a house for Ethel Wynn. API purchased the lot from the subdivision developer and began construction of the house, but the parties never consummated the transaction due to alleged construction defects. API subsequently sold the house to a third party. Wynn then sued API and its president, Fernando Arias, asserting both contract and tort claims. The trial court granted Arias’ motion for summary judgment but denied API’s motion for summary judgment. In Case No. A99A2414, API appeals the denial of its motion for summary judgment. In Case No. A99A2276, Wynn appeals the grant of summary judgment to Arias. For reasons discussed below, we affirm the grant of summary judgment to Arias and affirm in part and reverse in part the denial of summary judgment to API.

For purposes of these appeals, the relevant facts are as follows. On or about February 18, 1993, Wynn and API executed a construction agreement, pursuant to which API agreed to build a house for Wynn on a lot in Atlanta. The house was to be built in accordance with plans and specifications that had been purchased by Wynn and provided to API. The contract called for the house to be completed by the closing date of August 18, 1993. Wynn paid API $20,000 in earnest money, which API was required to return if the sale was not consummated for certain reasons. However, the agreement provided that API could retain the earnest money as liquidated damages if Wynn failed to consummate the transaction despite API’s performance of its covenants under the agreement. Wynn agreed that API could use the earnest money in the construction of the house and that it was not required to keep the money in a separate account.

For a number of reasons, construction was not completed by the August 18, 1993 closing date. Also, certain changes were required in framing and supporting the roof because of what Arias referred to as a defect in the plans provided to him by Wynn. At some point, Wynn noticed that a bow had developed in the rear wall of the house. Arias told Wynn’s daughter, Theresa Roseborough, that the roof was “possibly too heavy for the walls.” Wynn requested that Arias rebuild the wall to correct the bow, but Arias refused, stating that it was not a structural problem and could be corrected cosmetically. However, Arias said that if Wynn was not satisfied with the house, he would return her earnest money and sell the house to somebody else. Through her daughter, Wynn informed Arias in October that she did not want the house. Arias subsequently prepared a release agreement, pursuant to which Wynn would release any claims against API in exchange for the return of her earnest money. Wynn refused to sign the release, however, and on February 12, 1994, had her daughter send Arias a letter stating that she reserved the right to seek additional damages for breach of contract in addition to the return of the earnest money. The letter stated that, if Arias paid her $21,570, Wynn would waive any claim for interest on the earnest money. Arias did not return Wynn’s earnest money or pay the other amounts sought in the letter.

After Wynn informed him that she did not want the house, Arias arranged to convert it to a “spec” house, making certain changes to make it more appealing to a broader range of purchasers. API subsequently contracted to sell the house to a third party, with closing scheduled for April 24 or 25, 1994. On April 21,1994, Wynn’s daughter faxed a letter to Arias’ attorney, stating that Arias and API had breached the contract by failing to build the house in accordance with the contract and that any sale to a third party would be an additional breach of the contract. The letter stated that Wynn “has tendered and does tender performance of all of her obligations under the contract immediately upon the fulfillment of all conditions precedent to her obligations.” Arias testified that he was not aware of the letter, and the sale was consummated on April 24 or 25.

Case No. A99A2414

Wynn’s complaint against API consisted of five separate counts: breach of contract (Count 1); money had and received (Count 2); negligent supervision (Count 3); tortious breach of the covenant of good faith and fair dealing (Count 4); and a claim for attorney fees and litigation expenses pursuant to OCGA § 13-6-11 (Count 6). In her general prayer for relief, Wynn also sought punitive damages. In its summary judgment motion, API sought a judgment on the whole case or, in the alternative, a partial summary judgment on each separate count. API did not request that, if summary judgment were denied as to a particular count, the court enter an order pursuant to OCGA § 9-11-56 (d), “specifying the facts that appear without substantial controversy, including the extent to which the amount of damages or other relief is not in controversy.” On appeal, API argues that it was entitled to summary judgment as to each separate count but does not assert that the trial court erred in failing to enter an order pursuant to OCGA § 9-11-56 (d). With this in mind, we shall address each count of the complaint in turn.

1. Count 1 —Breach of Contract. In her breach of contract claim, Wynn asserted that API breached the construction contract in a number of ways, including by “failing to build the home in accordance with the plans and specifications attached to the Contract.” In its summary judgment motion, however, API wholly failed to address the issue of whether it breached the contract by failing to build the home in accordance with the plans and specifications, and simply addressed the various other allegations supporting the claim for breach of contract. As we held in Hodge v. SAD A Enterprises,

until [the defendant] pierce [s] the allegations of [the plaintiff’s] complaint on a particular issue, [the plaintiff is] neither required to respond to the motion on that issue nor required to produce evidence in support of his complaint on that issue. The issues that must be rebutted on motion for summary judgment are those raised by the motion. Consequently, [a plaintiff is] not required to present proof on all matters raised in his complaint until [the defendant] pierce [s] his complaint on those issues.

Because API did not pierce the allegations of Wynn’s complaint that it breached the contract by failing to build the home in accordance with the plans and specifications, Wynn was not required to come forth with evidence supporting such allegations. Accordingly, the trial court did not err in denying API’s motion for summary judgment on Count 1 of the complaint. Although API asserts that it did not breach the contract in several of the other ways alleged by Wynn, it did not seek an order specifying which facts were and were not in controversy but simply moved for summary judgment as to the entire count. Nor does API argue on appeal that the trial court erred in failing to enter such an order but merely argues that it was entitled to summary judgment on the entire count. Thus, we need not consider whether there was evidence to support the various other allegations of breach set forth in Count l.

2. Count 2 Money Had and Received. In her claim for money had and received, Wynn asserts that API is obligated to return her earnest money. However, such a claim exists only where there is no actual legal contract governing the issue. Since the construction contract specified the circumstances under which API was required to return the earnest money, API was entitled to summary judgment on this claim.

3. Counts 3 and 4 Tort Claims. With respect to her claim for negligent supervision of construction, Wynn has not shown that she has any tort claim relating to the construction of the house, since she never in fact acquired any interest in the property. Although API may have breached its contract by failing to build the house properly, Wynn has not shown how this amounts to a tort. In numerous cases, we have recognized that the owner or purchaser of a home may bring a claim for negligent construction against the builder. Wynn does not, however, point to any cases where such a claim has been allowed when the plaintiff never actually purchased the property she claims was negligently built. In such case, the true basis for the builder’s liability, if any, is that it failed to perform the terms of its construction contract. It is well settled that mere failure to perform a contract does not constitute a tort.* Therefore, API was entitled to summary judgment on Wynn’s claim for negligent supervision.

Similarly, API was entitled to summary judgment on Wynn’s claim for tortious breach of the covenant of good faith and fair dealing. Although a duty of good faith and fair dealing is implied in every contract, this duty is contractual in nature and does not give rise to tort liability. A plaintiff has a tort claim only where, “in addition to breaching a duty imposed by contract, [the defendant] also breaches a duty imposed by law.” To the extent that API violated a duty of good faith and fair dealing, such duty was imposed solely by the construction contract, and not by any other provision of law. Accordingly, API was entitled to summary judgment on this tort claim.

4. Count 6 OCGA § 13-6-11. With respect to her claim for attorney fees and expenses of litigation under OCGA § 13-6-11, Wynn contends that API has been stubbornly litigious and caused her unnecessary trouble and expense in defending against her “claim for the return of her earnest money and other damages associated with [API’s] breach of the Contract.” However, when

the only asserted basis for a recovery of attorney fees is either stubborn litigiousness or the causing of unnecessary trouble and expense, there is not any evidence to support an award pursuant to the statute if a bona fide controversy clearly exists between the parties.

Several cases suggest that an award under OCGA § 13-6-11 is unauthorized if there is a bona fide controversy as to any claim asserted by a plaintiff in the litigation. For example, we held in Ralston v. Etowah Bank that the existence of a controversy regarding the issue of punitive damages precluded an award of attorney fees, notwithstanding the fact that summary judgment had been granted against the defendant on the plaintiff’s claim for negligence. In Modern Woodmen of America v. Crumpton, we held that there was no basis for finding that the defendant was stubbornly litigious with respect to the plaintiff’s breach of contract claim, since there was a bona fide controversy regarding the plaintiff’s tort and punitive damage claims. As discussed above, with respect to certain of Wynn’s claims, not only was there a bona fide controversy, but API was actually entitled to summary judgment on such claims. Thus, regardless of whether there is any bona fide controversy as to the breach of contract claim, it is at least arguable that an award under OCGA § 13-6-11 would be precluded.

In any event, even if we consider simply the claim for breach of contract, there is a genuine dispute as to whether Wynn breached the contract by refusing to purchase the property or whether API breached the contract by failing to construct the house properly. Wynn’s refusal to purchase the property was apparently based on API’s unwillingness to rebuild the rear wall in order to correct a small bow, which Arias testified was not a structural problem and could be remedied cosmetically. The construction agreement provided that API could retain the earnest money as liquidated damages if Wynn failed to consummate the transaction despite API’s performing all of its obligations under the agreement. Such liquidated damages provisions have been held to be enforceable by the seller where the buyer refuses to perform under a construction contract. Because there is a genuine dispute as to which party is responsible for breaching the construction contract, there is a genuine dispute over API’s duty to return the earnest money. Accordingly, API was entitled to summary judgment on Wynn’s claim for attorney fees and expenses under OCGA § 13-6-11.

It appears that Wynn’s claim for punitive damages is based solely on her contention that API has been stubbornly litigious and put her to unnecessary trouble and expense. Because API is entitled to summary judgment on that issue, as well as on Wynn’s tort claims, the only remaining claim is for breach of contract. It is well settled that punitive damages are not available on breach of contract claims. Therefore, API was entitled to summary judgment on the issue of punitive damages.

Case No. A99A2276

5. In her first enumeration, Wynn contends that the trial court erred in considering Arias’ summary judgment motion without first ruling on her motion to compel production of certain documents. However,

[t]he record before us does not indicate that [Wynn] moved to continue the hearing on the motion for summary judgment pending a ruling on [her] motion to compel or that [she] otherwise objected to the court’s failure to rule on the motion to compel prior to ruling on the motion for summary judgment. [Indeed, Wynn requested that the summary judgment motion be ruled on and denied.] Consequently, [Wynn] has waived the right to assert the court’s failure to rule on the motion to compel as error on appeal.

6. In her second enumeration, Wynn asserts two separate arguments. First, she argues that Arias is personally liable for breach of contract because API is merely his alter ego. Second, she argues that Arias is liable in tort because he personally supervised the negligent construction by API.

(a) With respect to the first issue, Wynn asserts that there was sufficient evidence to pierce the corporate veil and impose liability on Arias. We have previously held that

[t]he concept of piercing the corporate veil is applied in Georgia to remedy injustices which arise where a party has overextended his privilege in the use of a corporate entity in order to defeat justice, perpetrate fraud or to evade contractual or tort responsibility. Because the cardinal rule of corporate law is that a corporation possesses a legal existence separate and apart from that of its officers and shareholders, the mere operation of corporate business does not render one personally liable for corporate acts. Sole ownership of a corporation by one person or another corporation is not a factor, and neither is the fact that the sole owner uses and controls it to promote his ends. There must be evidence of abuse of the corporate form. Plaintiff must show that the defendant disregarded the separateness of legal entities by commingling on an interchangeable or joint basis or confusing the otherwise separate properties, records or control.

Where a “piercing the corporate veil” theory is advanced, a defendant is entitled to summary judgment “if no evidence exists that shows, or from which it might be inferred, that the corporate arrangement was a sham, used to defeat justice, to perpetrate fraud, or to evade statutory, contractual or tort responsibility.”

The only evidence Wynn points to in this regard is (1) that API is controlled by Arias, with its office and telephone at his home, and (2) that Arias testified that API did not have funds on hand to repay Wynn’s earnest money. Clearly, the mere fact that a corporation is controlled by a single individual does not create a jury issue as to abuse of the corporate form. Likewise, the fact that a corporation has minimal cash on hand at a given point in time does not, standing alone, create a jury question on this issue. As the Supreme Court has stated, “for undercapitalization of a corporation to justify piercing the corporate veil, it must be coupled with evidence of an intent at the time of the capitalization to improperly avoid future debts of the corporation.” There is no such evidence in this case, nor is there evidence that Arias used the earnest money for any improper purpose, in order to avoid paying debts of the corporation. Indeed, Wynn admits that she agreed the earnest money was to be used in construction of the house and need not be maintained in a separate account.

Wynn argues that defendants did not produce certain corporate documents requested in discovery, which she believes might have strengthened her case for piercing the corporate veil. However, defendants objected to production of those documents, and Wynn did not obtain an order requiring production of the documents prior to the ruling on Arias’ summary judgment motion. As we have often noted, “each party has a duty to present his case in full at the summary judgment hearing.” While the documents might have been relevant, it was Wynn’s responsibility to obtain a ruling on her motion to compel or to seek a continuance of the summary judgment motion. “Appellate courts will review only evidence presented to the trial court before its ruling on a summary judgment motion.” Accordingly, we cannot assume that the documents would have supported her piercing the corporate veil theory.

Decided March 10, 2000.

Joseph A. Roseborough, for Wynn.

King, Taylor & Stovall, James F. Stovall III, for Arias and Arias Properties, Inc.

(b) With respect to the tort issue, as discussed in Division 3 above, Wynn has not shown that she has any tort claim relating to the construction of the house. Accordingly, the trial court properly granted summary judgment to Arias on Wynn’s claim for negligent supervision.

Judgment affirmed in Case No. A99A2276. Judgment affirmed in part and reversed in part in Case No. A99A2414.

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

       API’s motion seeking sanctions against Wynn for filing a brief with improper margins is denied.

       Count 6 was misnumbered, as there was no Count 5. Also, although Count 6 is entitled “Attorney’s Pees and Expenses and Punitive Damages,” the body of the count does not assert a claim for punitive damages.

       Before addressing the merits of the parties’ appeals, we feel compelled to mention an issue not fully discussed by the parties, but which renders appellate review of this case difficult. In its appellate brief, API states that “the parties agreed to settle this dispute by API refunding the construction deposit to Mrs. Wynn and the parties rescinding the contract which [is] the basis of this suit.” In her brief, Wynn states that she “decided to accept Arias’ offer to rescind the Contract and return her $20,000 earnest money” and that she communicated this acceptance to Arias. However, Wynn apparently takes the position that no rescission was effected because API failed to return the earnest money. If, in fact, the parties agreed to rescind the construction contract in return for API’s promise to return the earnest money, Wynn would be precluded from asserting a breach of the construction contract and would be limited to suing for breach of the subsequent promise to return the earnest money. See generally Ardex, Ltd. v. Brighton Homes, 206 Ga. App. 606, 609 (5) (426 SE2d 200) (1992) (rescission is remedy in which neither party is held liable in damages for breach of contract, and contract is treated as no longer binding). However, Wynn’s breach of contract claim alleges only that API breached the original construction contract and is not in any way based upon API’s breach of its subsequent promise to return the earnest money. Moreover, API did not contend below, and does not contend on appeal, that Wynn is barred from suing for breach of the construction contract due to the rescission — it simply argues that it did not in fact breach the contract. Because API did not seek summary judgment based on the purported rescission, we cannot consider whether it was entitled to summary judgment on that ground. Because Wynn did not sue for breach of the subsequent promise to return the earnest money, we cannot consider whether API is liable on such promise.

       She also alleged that API breached the contract by failing to complete construction by the originally scheduled closing date, failing to build the house without substantial defects, and failing to return her earnest money.

       217 Ga. App. 688 (458 SE2d 876) (1995).

       (Citations omitted.) Id. at 690 (1). We also note that the summary judgment motion did not raise the issue of whether any breach of the contract was the proximate cause of any damage to Wynn. Therefore, we do not consider this issue on appeal.

       See Pritchett v. Rainey, 131 Ga. App. 521-522 (206 SE2d 726) (1974); Butts v. Ga. Cas. &c. Co., 179 Ga. App. 819, 821 (348 SE2d 94) (1986); Borden, Inc. v. Barker, 124 Ga. App. 291, 295 (183 SE2d 597) (1971); Ireland v. Matthews, 120 Ga. App. 510, 512 (171 SE2d 387) (1969).

        Baghdady v. Central Life Ins. Co., 224 Ga. App. 170, 171 (2) (480 SE2d 221) (1996).

       See id.; Pickelsimer v. Traditional Builders, 183 Ga. App. 709, 710 (1) (359 SE2d 719) (1987). We note that, where a buyer has rescinded a construction contract due to the seller’s breach, the buyer may bring an action for money had and received to recover any amounts paid to the seller. See Sulejman v. Marinello, 217 Ga. App. 319, 320-321 (457 SE2d 251) (1995); Goldberg v. Black, 156 Ga. App. 872, 873 (275 SE2d 810) (1981). As discussed above, however, Wynn’s complaint is not based on a claim that the construction contract was rescinded; to the contrary, Wynn contends that API is required by the terms of siich contract to return the earnest money. In any event, if the construction contract was rescinded in exchange for API’s express promise to return the earnest money, then Wynn’s claim would be based on that subsequent promise, and not on the theory of money had and received.

       See Howard v. McFarland, 237 Ga. App. 483, 486-489 (3) (515 SE2d 629) (1999); Crosby v. DeMeyer, 229 Ga. App. 672 (494 SE2d 568) (1997); Bilt Rite of Augusta v. Gardner, 221 Ga. App. 817 (472 SE2d 709) (1996); Seely v. Loyd H. Johnson Constr. Co., 220 Ga. App. 719, 720-722 (1) (470 SE2d 283) (1996).

       See Brown v. Hilton Hotels Corp., 133 Ga. App. 286, 289 (1) (211 SE2d 125) (1974).

       Wynn does not address this issue in her appellate brief.

       See Constr. Lender v. Sutter, 228 Ga. App. 405, 409-410 (2) (491 SE2d 853) (1997).

       (Punctuation omitted.) Spears v. Mack & Bernstein, P.C., 227 Ga. App. 743, 745 (2) (490 SE2d 463) (1997). See also Unified Svcs. v. Home Ins. Co., 218 Ga. App. 85, 87 (4) (460 SE2d 545) (1995).

       (Punctuation omitted.) Backus Cadillac-Pontiac v. Brown, 185 Ga. App. 746, 747 (1) (365 SE2d 540) (1988). See also Milam v. Attaway, 195 Ga. App. 496, 498-499 (2) (393 SE2d 753) (1990).

       207 Ga. App. 775, 778 (4) (429 SE2d 102) (1993).

       226 Ga. App. 567, 570 (487 SE2d 47) (1997).

       See Liberty Life Ins. Co. v. Thomas B. Hartley Constr. Co., 258 Ga. 808-809 (375 SE2d 222) (1989) (upholding liquidated damages provision equal to about ten percent of purchase price).

       See Trust Co. Bank v. C & S Trust Co., 260 Ga. 124, 126 (1) (b) (390 SE2d 589) (1990); McDuffie v. Argroves, 230 Ga. App. 723, 726 (3) (497 SE2d 5) (1998).

       (Punctuation omitted.) Rush v. Food Giant, 183 Ga. App. 388, 392 (2) (358 SE2d 919) (1987).

       (Punctuation omitted.) Clark v. Cauthen, 239 Ga. App. 226, 227 (2) (520 SE2d 477) (1999).

       (Punctuation omitted.) Id. at 228.

       See id. at 227.

        Hickman v. Hizer, 261 Ga. 38, 39-40 (1) (401 SE2d 738) (1991). See also Lawton v. Temple-Warren Ford, Inc., 203 Ga. App. 222 (416 SE2d 527) (1992).

        Hyre v. Denise, 214 Ga. App. 552, 553 (1) (449 SE2d 120) (1994). See also Coker v. Culter, 208 Ga. App. 651, 652 (431 SE2d 443) (1993).

       (Punctuation omitted.) Hyre, supra.


author: Pope, Presiding Judge.

text:
    A99A2291.
    RILEY v. THE STATE.
    (531 SE2d 138)
   Pope, Presiding Judge.

Lamar Riley was indicted and convicted of aggravated assault with intent to rob. He appeals, claiming that the trial court improperly broadened the indictment by charging the jury with aggravated assault with intent to murder in addition to the indicted charge. He also asserts the court should have granted his motion for an in camera inspection of the State’s file. We conclude that Riley’s second enumeration has merit and remand with direction.

Construed in favor of the verdict the facts show that Riley and Savin Dix were outside a grocery store when the owners, Susan and Daniel Kwon, and an employee closed the store one night. As Mr. Kwon was locking the door, Dix shot him. Dix pointed the gun at Mrs. Kwon as well, and then Riley and Dix ran away. There was evidence that Riley and Dix were subsequently overheard arguing about a failed robbery attempt.

1. On Count 1, Riley was indicted for aggravated assault “by shooting [Kwon] with a handgun, a deadly weapon, all with intent to rob.” But in a charge to the jury the trial court defined aggravated assault as an act which could be committed either with intent to rob, rape or murder. The court charged:

A person commits aggravated assault when he assaults another person with intent to murder, rape or rob, or with 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.

Riley reserved objection to the charge.

An instruction that deviates from the indictment violates due process “where there is evidence to support a conviction on an unalleged manner of committing the crime and the jury is not instructed to limit its consideration to the manner specified in the indictment.” Harwell v. State, 270 Ga. 765, 766 (1) (512 SE2d 892) (1999). See also Sarnie v. State, 247 Ga. 414, 415 (1) (276 SE2d 589) (1981). Without the limiting instruction the conviction is defective “because there is a reasonable possibility that the jury convicted the defendant of the commission of a crime in a manner not charged in the indictment.” (Punctuation and footnote omitted.) Dukes v. State, 265 Ga. 422, 423 (457 SE2d 556) (1995).

Although there was evidence that could support a finding of intent to murder, the court’s total charge sufficiently limited the jury’s consideration to the manner specified in the indictment. At the conclusion of the charge, the court instructed,

If after considering the testimony and the evidence presented to you, together with the charge of the court, you should find and believe beyond a reasonable doubt that Lamar Riley . . . did on or about December 13th, 1994, commit the crime of aggravated assault with intent to rob . . . the form of your verdict would be: we, the jury, find the defendant guilty. . . .

This summary instruction, which explained how to prepare the verdiet, clearly indicated that only a finding of aggravated assault with intent to rob was available for consideration.

2. Riley’s request for an in camera inspection of the State’s file should have been granted, and we remand for a post-trial inspection.

Prior to trial Riley filed a written request for an in camera inspection of the prosecution’s entire file “to determine whether or not the defendant is entitled to listen to, inspect, copy or read, prior to trial, all or any portion of the State’s file.” During pretrial motions, Riley moved for an in camera inspection of the detective’s investigative file for any exculpatory evidence, including witness statements. The court denied the request.

A court is required to make an in camera inspection of the prosecution’s file “upon the request of a defendant dissatisfied with the State’s response to the defendant’s request for exculpatory material.” McNeal v. State, 263 Ga. 397, 398 (4) (435 SE2d 47) (1993), following Tribble v. State, 248 Ga. 274 (280 SE2d 352) (1981). Brady requires information to be revealed when it is “possessed by the prosecutor or anyone over whom the prosecutor has authority.” (Citation and punctuation omitted.) Zant v. Moon, 264 Ga. 93, 100 (3) (440 SE2d 657) (1994).

First, the State does not challenge Riley’s assertion that the detective was under the prosecutor’s authority and therefore covered by the request. Whether the prosecutor has authority over a certain person is determined on a case-by-case basis, reviewing the extent of interaction, cooperation and dependence of the agents working on the case. Zant, 264 Ga. at 100 (3). Here, Detective Walker was a detective in the homicide division of the Atlanta Police Department. He was assigned to investigate this assault and appears to have been an integral member of the prosecution team. Thus, his files are considered within the possession of the State for purposes of Brady. See Owen v. State, 265 Ga. 67, 69, n. 2 (453 SE2d 728) (1995).

At a hearing on Riley’s motion to suppress witness identifications, Detective Walker testified that witness Rooks, a/k/a Antonio Martin, was not arrested in connection with this case. But counsel for Riley stated in open court, “I have a very firm recollection that [Walker] told me . . . that [Rooks] fit the description of the gunman and he was arrested. . . .” The court stated that it “had no evidence whatsoever to disbelieve [Walker],” and “until you can show me some reason to disbelieve him, I’m not going to [grant the request].” At trial, Rooks too claimed that he had been arrested as a suspect and denied that he had given the inculpatory statement.

Decided March 10, 2000.

Steven E. Phillips, for appellant.

Paul L. Howard, Jr., District Attorney, Bettianne C. Hart, Assistant District Attorney, for appellee.

Riley argues that whether Rooks had been arrested greatly affected his credibility as the witness who claimed to have overheard the defendants having a discussion about a botched robbery attempt. “Impeachment evidence showing bias or interest on the part of a key prosecution witness falls within the Brady rule.” (Citations and emphasis omitted.) Belins v. State, 210 Ga. App. 259, 261 (2) (435 SE2d 675) (1993). If Rooks was arrested as a suspect but ended up testifying against Riley, there would be a suggestion of bias. He would have had a motive to cast blame elsewhere. Because Riley made a proper request and there was evidence suggesting that Rooks had been arrested, the court should have granted the request for an in camera inspection.

The case is remanded for a post-trial examination of the State’s file. Tribble, 248 Ga. at 276 (3); McNeal, 263 Ga. at 398-399 (4). Should evidence that Rooks was arrested in this case be found, then a new trial would be warranted. Riley may file a notice of appeal from the trial court’s ruling on remand. Id. at 399 (4).

Judgment affirmed in part and remanded with direction in part.

Smith and Miller, JJ., concur.

       He was also charged with aggravated battery on Mr. Kwon and aggravated assault on Mrs. Kwon, but he was acquitted of these charges. Dix was convicted of all three charges.

       Riley’s other charge of aggravated assault was related to Mrs. Kwon, for which he was acquitted. Thus, there was no confusion with the charge related to Mr. Kwon.


author: Johnson, Chief Judge.

text:
    A00A0033.
    SHELNUTT et al. v. THE STATE.
    (531 SE2d 122)
   Johnson, Chief Judge.

A jury found Rodney Shelnutt and his brother, Joe Shelnutt, guilty of aggravated assault. Arguing that the evidence was legally insufficient to support the verdicts and that their trial counsel was ineffective in several particulars, they appeal from the judgments of conviction entered upon the jury’s verdicts.

1. The Shelnutts challenge the sufficiency of the evidence to support their convictions, arguing each had an alibi and there was no physical evidence supporting the verdicts. On appeal, this court does not weigh the evidence or determine the credibility of witnesses. Rather, we determine if the evidence is legally sufficient by deciding whether, viewed in a light most favorable to support the verdict, a rational trier of fact could find all the essential elements of the crimes charged beyond a reasonable doubt.

Viewed in this light, the evidence presented at trial shows that the victim went to sleep in a car outside his son’s residence. His son, Donnie Queen, and Donnie’s girlfriend, Abbey Daniel, were involved in a domestic dispute. Rodney and Joe Shelnutt, brothers of Daniel, approached his car and woke him by yelling, cursing and threatening him. Rodney Shelnutt had a shotgun and shot into the victim’s car. At least one shotgun blast hit the car, and pellets fell on both sides of the victim. Joe Shelnutt had a pistol which he shot at least twice. Although it was night, the victim clearly saw the actions of Rodney and Joe Shelnutt because the street was well lit. The victim left the scene after the assault and later showed a police officer the damage done to the car.

The daughter of the victim was inside the home at the time of the incident. From a window in the house, she saw Rodney and Joe Shelnutt drive into the driveway. She saw Rodney Shelnutt shoot at her father’s car and Joe Shelnutt shoot his pistol into the air.

Both Rodney and Joe Shelnutt presented alibi witnesses. The jury, not this court, assesses the credibility of witnesses. Though there was a conflict in the evidence, we find sufficient evidence for a rational trier of fact to find both Rodney and Joe Shelnutt guilty of aggravated assault beyond a reasonable doubt. The trial court did not err in denying the Shelnutts’ motion for new trial on this ground.

2. The Shelnutts contend their trial counsel was ineffective because he failed to question them about and advise them of a possible conflict of interest in one attorney representing both of them. First, the evidence does not show that there was any such conflict in the present case. Rodney and Joe Shelnutt had separate and distinct alibi defenses, and their testimony regarding the fact that they were not present at the scene was consistent. Moreover, their trial counsel testified at the motion for new trial hearing that he thoroughly discussed any potential conflict of interest with both Rodney and Joe Shelnutt prior to trial. According to trial counsel:

They assured me that what they had represented to me was the factual situation in the case. They assured me that there was not going to arise any situation where their testimony was going to be contradicting each other, and they assured me that they wanted me to represent both of them.

A defendant who does not raise an objection at trial must demonstrate that an actual conflict of interest adversely affected his lawyer’s performance or his decision whether to plead guilty. Here, the Shelnutts argue that an actual conflict existed because one brother was offered a plea bargain while the other was not. However, the record clearly shows that plea offers were presented to both brothers and that these plea offers were made with both brothers present. The trial court’s decision that the Shelnutts received effective assistance of counsel in this regard was not clearly erroneous.

3. The Shelnutts claim their trial counsel was ineffective in failing to request jury charges for the lesser included offenses of reckless conduct and assault. We disagree.

The Shelnutts argue that their trial attorney failed to consult with them on the tactical decision to go to the jury on an “aggravated assault or nothing” posture. While defense lawyers should consult fully with defendants in determining whether to request lesser included offenses, the failure to follow this crucial practice in every case does not constitute ineffective assistance of counsel as a matter of law. The decision of whether to seek the submission to the jury of lesser included offenses “is often based on legal complexities only the most sophisticated client could comprehend, not unlike the tactical decisions involved regarding the assertion of technical defenses.” The relevant inquiry is “ ‘what is the consequence when that practice has not been followed.’ ”

In the present case, the Shelnutts’ trial counsel consulted with the Shelnutts several times and knew from those consultations that the Shelnutts desired to present alibi defenses. According to trial counsel, “my clients informed me that they were not guilty of anything and that was how they wanted to plead. . . . [T]heir defense was that they weren’t there, and they consistently took the position that they weren’t there.” All of the witnesses named by the Shelnutts as witnesses who would testify on their behalf were witnesses supporting their alibi defenses. In fact, the strength of the Shelnutts’ beliefs was reflected in the fact that trial counsel testified he encouraged the Shelnutts to enter a plea to lesser included offenses, and they chose to reject his advice. At the hearing on the motion for new trial, trial counsel testified as follows:

Sir, if your defense is that your people were not there, that one of your defendants was at Lake Oconee and that the other defendant was in a trailer in Barrow County then lesser included offenses have nothing to do with the case and are inconsistent. If you want to try to go in front of a jury, or at least in my experience, and say, “Well, my defendants weren’t there, but if they were there you ought to find them guilty of this,” I find that that is a pretty ineffective defense.

The burden was on the Shelnutts to establish that they received ineffective assistance of counsel. Here, the record is devoid of any evidence indicating that the Shelnutts would have entertained a suggestion from trial counsel to submit charges concerning lesser included offenses to the jury. Rather, the hearing transcript clearly reflects that both defendants wanted to present their case to the jury on the basis of alibi defenses. Given the fact that the Shelnutts consistently denied being present at the scene of the alleged offenses, trial counsel did not err in making the strategic decision not to request that the jury consider the lesser included offenses of reckless conduct and assault. The trial court did not clearly err in concluding that trial counsel’s performance was not ineffective in this regard and that the Shelnutts did not demonstrate prejudice resulting from the alleged deficiency.*

4. The Shelnutts argue that trial counsel was ineffective because he failed to object to “prejudicial hearsay and irrelevant material which was harmful.” The Shelnutts point to two statements made by the victim (a response to how the yelling and cursing made him feel and testimony that his daughter saw the Shelnutts commit the offenses) to which they contend trial counsel should have objected., We find no error in the trial court’s conclusion that trial counsel was not ineffective in this regard.

Decisions as to whether to interpose certain objections fall within the realm of trial tactics and strategy and usually provide no basis for reversal of a conviction. In this instance, trial counsel testified at the hearing on the motion for new trial as follows:

As a general rule unless I see evidence that is doing something to extremely harm my case I am not a jackrabbit defense attorney, I don’t jump up and object at every technical objection that I see coming along, because I feel like if I do that has a tendency to give the jury the version that I am trying to hide something, and I don’t like to come across to the jury as an attorney that is trying to hide facts from them, and I make as few objections as I can, and even if that testimony was irrelevant, in the first place if it was irrelevant it probably wasn’t very harmful, but I didn’t feel like that particular testimony was objectionable, and even if it had been I would not have felt it was doing so much harm that I would have objected to it.

Decided March 10, 2000.

James W. Smith, for appellants.

Robert W. Lavender, District Attorney, Marsha L. Dooley, Assistant District Attorney, for appellee.

On a motion for new trial which asserts ineffective assistance of counsel, it is the defendants’ burden to present affirmative evidence to rebut the presumption that trial counsel’s actions are strategic in nature. The Shelnutts failed to carry this burden. Furthermore, we find no reasonable probability that the outcome of the trial would have been different had the Shelnutts’ trial counsel objected to the specified testimony. Because the trial court’s finding that the Shelnutts were not denied effective assistance of counsel in this regard is not clearly erroneous, we must affirm it.

Judgment affirmed.

McMurray, P. J., and Phipps, J., concur.

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

        Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Lewis v. State, 215 Ga. App. 161, 163 (3) (450 SE2d 448) (1994).

        Jackson v. State, 271 Ga. 705, 706 (1) (523 SE2d 871) (1999).

        Ellis v. State, 240 Ga. App. 498, 500 (1) (a) (523 SE2d 914) (1999); Jones v. State, 239 Ga. App. 832, 836-838 (2) (521 SE2d 614) (1999).

        Van Alstine v. State, 263 Ga. 1, 3 (426 SE2d 360) (1993).

       Id.

       Id. at 4.

       Id.

        Roberts v. State, 263 Ga. 807, 809 (2) (c) (439 SE2d 911) (1994).

        Bertholf v. State, 224 Ga. App. 831, 833 (2) (c) (482 SE2d 469) (1997).

       Id.; see also Bowley a State, 261 Ga. 278, 280-281 (4) (404 SE2d 97) (1991); Harshaw v. State, 222 Ga. App. 385, 386-387 (2) (474 SE2d 226) (1996).

        Herndon a State, 235 Ga. App. 258, 259 (509 SE2d 142) (1998).

        Smith v. State, 234 Ga. App. 586, 589 (1) (a) (ii) (506 SE2d 406) (1998).

        Brumelow v. State, 239 Ga. App. 119, 123 (5) (520 SE2d 776) (1999); Herndon, supra at 259-260.