author: Ruffin, Judge.

text:
    A99A1956.
    CLARK v. DAVIS.
    (530 SE2d 49)
   Ruffin, Judge.

Dock H. Davis, the executor of the estate of R H. Montgomery, Jr., filed a petition in probate court seeking compensation under OCGA § 53-6-143 for distributing certain property in kind. The probate court entered an order denying the petition. Davis then appealed this decision to the superior court. Following a jury trial, the jury found that Davis was entitled to a commission equal to two and one-half percent of the value of the property delivered in kind, although it was not asked to make any findings as to the value of such property. The superior court entered judgment on the jury verdict, holding that “[t]he commission allowed to . . . Davis as compensation shall be 2 1/2% of the value of the property delivered in kind.” This judgment also did not set forth the value of such property. George Russom Clark, a residuary legatee under Montgomery’s will, filed a notice of appeal from the superior court’s judgment. Because the superior court’s order does not constitute a final judgment pursuant to OCGA § 5-6-34 (a) (1), we dismiss the appeal.

Generally, when a superior court rules on an appeal from a lower court, the superior court’s decision may be appealed to this court only through the discretionary appeals procedures. This rule does not, however, apply to a superior court decision in an appeal from probate court. In such case, the appealability of the superior court’s ruling is governed by OCGA § 5-6-34. If the ruling constitutes a “final judgment,” it is directly appealable under OCGA § 5-6-34 (a). If the ruling is not a final judgment, the appellant must follow the interlocutory appeals procedures set forth in OCGA § 5-6-34 (b).

When an appeal is taken to the superior court from a decision of the probate court, the appeal is de novo, and the entire case is transferred to the superior court. The duty of the superior court is not to determine whether the probate court erred but to “try the issue anew and pass original judgments on the questions involved as if there had been no previous trial.” Thus, when a de novo appeal is made to the superior court, it is error for that court to remand the case back to the probate court for further proceedings. In this case, Davis appealed the probate court’s denial of his petition for additional compensation under OCGA § 53-6-143. Therefore, his appeal to superior court brought up the entire issue of his entitlement to additional compensation, including the amount of such compensation.

The superior court’s judgment does not purport to decide the entire issue of Davis’ entitlement to compensation under OCGA § 53-6-143 but simply states that Davis is entitled to a commission of two and one-half percent of the fair value of property transferred in kind. As yet, no judicial determination has been made as to the value of such property, and no final award of compensation has been made. The verdict form presented to the jury did not ask the jury to find the value of the property transferred in kind but simply asked it to determine whether Davis was entitled to a commission and, if so, in what percentage. The superior court’s order states that the verdict form was prepared “with the consent of the parties,” and Clark does not point to anywhere in the record showing that he objected to the verdict form. Therefore, regardless of whether any evidence was presented as to the value of the property transferred, the jury was not asked to resolve that issue, and the issue remains pending in the superior court.

Decided February 18, 2000

Albert B. Wallace, Stephen B. Wallace II, for appellant.

Dock H. Davis, pro se.

“It is the duty of this court on its own motion to inquire into its jurisdiction.” Regardless of the propriety of the superior court’s severing the issue of Davis’ entitlement to a commission from the issue of the value of the property transferred, the fact remains that the case has not been fully adjudicated in the superior court. Accordingly, the superior court’s decision was not a “final judgment” pursuant to OCGA § 5-6-34 (a) (1), and Clark was required to follow the interlocutory appeals procedures. Because he did not do so, we do not have jurisdiction to decide this appeal.

Appeal dismissed.

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

       Under OCGA § 53-6-143, the probate court may, in its discretion, award an executor commissions up to three percent of the appraised or fair value of any property delivered in kind by the executor. On appeal to the superior court, such discretion is to be exercised by the superior court judge or jury. See Patterson v. Patterson, 208 Ga. 17, 22 (2) (64 SE2d 585) (1951); Crump v. McDonald, 239 Ga. App. 647, 649 (1) (520 SE2d 283) (1999).

       See OCGA §§ 5-3-2; 5-3-29.

       The jury also found that Clark was not entitled to a distribution of certain real property, but Clark does not raise this issue on appeal.

       See OCGA § 5-6-35 (a) (1).

       See Phillips v. State, 261 Ga. 190-191 (402 SE2d 737) (1991); Power v. State, 231 Ga. App. 335, 336 (499 SE2d 356) (1998).

       See Hooper v. Taylor, 230 Ga. App. 128 (1) (495 SE2d 594) (1998).

       See OCGA § 5-3-29; Hooper, supra at 128-129 (2); Knowles v. Knowles, 125 Ga. App. 642, 645 (1) (188 SE2d 800) (1972).

       (Punctuation omitted.) Id.

       See id.; Hooper, supra; Ledford v. Farrow, 134 Ga. App. 591-592 (2) (215 SE2d 344) (1975) (physical precedent).

       We note that Clark is incorrect in claiming that there was no evidence presented at trial regarding the value of any property transferred in kind. Clark himself testified that he received a distribution of certain machines worth $20,000. Therefore, even if the issue of value had been presented to the jury, there was some evidence from which it could place a value on property transferred by Davis. As discussed above, however, the jury was not asked to find the value of such property.

       (Punctuation omitted.) Hooper, supra at 128 (1).


source: Caselaw Access Project

author: Andrews, Presiding Judge.

license: Public Domain

text:
    A99A2100.
    ZAGER v. BROWN et al.
    (530 SE2d 50)
   Andrews, Presiding Judge.

Jeff Zager appeals from the trial court’s dismissal of his complaint for failure to state a claim for breach of employment contract and fraud against Harry Brown, D.C.; his corporations; and Hardt, Jr., the general manager of the corporations.

Zager’s complaint alleged breach of a “written contract of employment” dated June 14, 1996, and fraud. Attached to the complaint as Exhibit A was a copy of the claimed employment contract. It consisted of a letter on the stationery of Arrowhead Management, Inc.* dated June 14, 1996, and addressed to “Whom It May Concern.” It was signed by Hardt, Jr. as general manager and was notarized. It stated that

Jeff Zager is employed by Arrowhead Management, Inc. and holds the position of Director of Atlanta Operations. Mr. Zager has a two-year employment contract with the company, effective June 12, 1996, which specifies the following: 1. Base salary of $60,000 per year. 2. Commission of $3,000 to $6,000 per month, depending on attainment of performance goals, with a guaranteed minimum commission of $3,000 per month. 3. Expense account and payment of cellular phone service. If any additional information should be required, please contact me directly. . . .

After the defendants filed a motion to dismiss for failure to state a claim on the ground that this letter failed to satisfy OCGA § 13-5-30 because the contract could not be performed within one year and did not constitute a written contract under the Statute of Frauds, Zager attached another letter to his May 15, 1998 response. This letter, dated June 28, 1996, and signed by Brown, was also addressed to “Whom It May Concern” and was described by Zager’s response as “express [ing] great satisfaction with the job being performed at that time by Plaintiff Zager.” That letter states, in pertinent part, that

[b]ecause of Jeff’s exceptional business abilities, I asked him to take on some collection responsibilities at Arrowhead Clinic, Inc., in October of 1995. In no time, Jeff was collecting on accounts receivable that were considered write-offs until he got them. Jeff did such an outstanding job in his collection capacity that I knew he was the right individual for Director of Atlanta Operations [,] which he accepted in March of 1996.

(Emphasis supplied.)

On July 8, 1998, Zager filed an Amended Complaint and Supplemental Response to Defendants’ Motion to Dismiss. Attached as an exhibit to the response was a June 8, 1996 Proposal for Permanent Employment, prepared by Zager. It states that “[t]he following is the agreed upon arrangement for permanent employment for Jeff P. Zager with the Arrowhead Clinic, Inc. Base salary at $60,000 plus car phone.” There followed a commission structure which depended upon the collections made by Zager.

The end of the letter stated “[a]ccepted this 8th day of June, 1996,” and was signed by Brown, Hardt, and Zager.

The supplemental response states, with respect to this letter, that

Plaintiff herein was paid on commission, as set forth in the agreement, with commissions above the minimum as set forth in the schedule of commissions signed by Harry Brown, as set forth in Exhibit “A” hereto, which was created in connection with an earlier proposal for permanent employment, which through further negotiation resulted in the agreement at issue in this action.

The amended complaint added to the fraud count the allegation that Zager

moved to Jonesboro, purchased a house, stopped his other business activities to devote full-time to employment with the Defendants, lost other valuable business opportunities, and otherwise resulted in uncompensated benefits to Defendants and a loss to Plaintiff.

(Emphasis supplied.)

In this context, the trial court concluded that the complaint did not show a written contract of employment but an oral one which did not meet the requirements of OCGA § 13-5-30 (5) and was terminable at will. Further, the court concluded “the Complaint failed to allege part performance sufficient to remove Plaintiff’s oral employment agreement from the Statute of Frauds.”

A motion to dismiss for failure to state a claim upon which relief may be granted should not be sustained unless (1) the allegations of the complaint disclose with certainty that the claimant would not be entitled to relief under any state of provable facts asserted in support thereof; and (2) the movant establishes that the claimant could not possibly introduce evidence within the framework of the complaint sufficient to warrant a grant of the relief sought. In deciding a motion to dismiss, all pleadings are to be construed most favorably to the party who filed them, and all doubts regarding such pleadings must be resolved in the filing party’s favor. Anderson v. Flake, 267 Ga. 498, 501 (2) (480 SE2d 10) (1997).

(Punctuation omitted.) Cellular One v. Emanuel County, 227 Ga. App. 197-198 (489 SE2d 50) (1997).

1. First considering the contract claim, we agree with the trial court that the June 14, 1996 letter is insufficient to constitute a written contract.

The June 14,1996 letter is addressed to “Whom It May Concern” and is not signed or otherwise concurred in by Zager. Additionally, there is no indication of the duties to be performed by him as “Director,” the place where the duties are to be executed, any benefits in addition to salary and commission, or a basis upon which the agreement could be terminated.

The nature and character of the services to be performed, the place of employment and the amount of compensation to be paid therefor are all essential elements of an employment contract and must be stated with sufficient definiteness. Farr v. Barnes Freight Lines, 97 Ga. App. 36, 37 (101 SE2d 906) (1958). If an employment contract contains no description of the nature and character of the services to be performed, or where the performance is to occur, it is so indefinite and vague that it is unenforceable. McTerry v. Free for All Missionary Baptist Church No. 1, 129 Ga. App. 724 (200 SE2d 915) (1973).

(Punctuation omitted.) Sawyer v. Roberts, 208 Ga. App. 870, 871 (432 SE2d 610) (1993).

In Sawyer, Sawyer was hired as a dental hygienist for three years pursuant to a written document. While the document was executed by both parties and set out her work hours, it was silent as to the nature of the services to be performed or the place of performance and was found void for uncertainty and indefiniteness. Compare Toncee, Inc. v. Thomas, 219 Ga. App. 539, 540 (1) (466 SE2d 27) (1995) with Wheeling v. Ring Radio Co., 213 Ga. App. 210 (444 SE2d 144) (1994).

Therefore, the complaint failed to allege a claim for breach of written employment contract, and dismissal was appropriate.

2. Zager contends that, even if no written contract was alleged, there were sufficient allegations of partial performance to take the oral contract out of the Statute of Frauds pursuant to OCGA § 13-5-31 (3).

As reflected above, however, the only factual allegations in his complaint are not inconsistent with performing duties pursuant to an oral contract terminable at will.

[T]he part performance shown must be consistent with the presence of a contract and inconsistent with the lack of a contract. It is clear that mere entry on employment is insufficient part performance to satisfy this requirement. [Cits.] It has also been held that, even with such entry, refusal of another offer is not sufficient part performance under [OCGA § 13-5-31 (3)]. [Cits.] Nor is moving to a new location and taking on employment adequate to remove an oral contract from the statute of frauds. [Cits.] The rationale underlying these cases is that these acts, entry on employment, moving, and refusal of another offer, are . . . merely preparatory or preliminary to the performance of a contract terminable at the will of either party . . . and not a substantial act essential to an oral contract. These acts do not verify the probable existence of the contract.

Decided February 18, 2000

Robert M. Goldberg, for appellant.

Fisher & Phillips, Ruth W. Woodling, for appellees.

Hudson v. Venture Indus., 243 Ga. 116, 118-119 (252 SE2d 606) (1979). See also Morgan v. American Ins. Managers, 239 Ga. App. 635, 637 (2) (521 SE2d 676) (1999); Ikemiya v. Shibamoto America, 213 Ga. App. 271, 272 (1) (444 SE2d 351) (1994); Gatins v. NCR Corp., 180 Ga. App. 595, 598 (349 SE2d 818) (1986).

Additionally,

“fraud cannot be predicated on a promise which is unenforceable at the time it is made. And this is controlling in the instant case because the promises (of employment) upon which the (plaintiff) relies for establishing fraud were unenforceable even absent any fraud at the time of their utterance. . . . [Cits.]”

Ikemiya, supra at 274 (2).

Judgment affirmed.

Ruffin and Ellington, JJ, concur.

       Arrowhead Clinic, Inc. and Chiromed Chiropractic Center, Inc. were also listed on the letterhead, indicating they each had offices throughout Georgia and Florida, respectively.

       Underlined portion is handwritten.

       Although Zager argues here that the “writings” constituted the contract, as reflected above, that was not the claim alleged in the complaint and will not be considered here for the first time.

       That section provides that the Statute of Frauds does not extend to cases “[wjhere there has been such part performance of the contract as would render it a fraud of the party-refusing to comply if the court did not compel a performance.”


author: Eldridge, Judge.

text:
    A00A0379.
    SEXTON v. CLAYTON COUNTY TAX DIGEST.
    (529 SE2d 149)
   Eldridge, Judge.

The issue presented for determination comes under OCGA § 48-5-310, i.e., when temporary ad valorem taxes are ordered collected by a superior court because the county tax digest has not been approved by the State Revenue Commissioner, should the trial court use a millage rate that will produce revenue exceeding the adopted budget when applied to the unapproved tax digest that is approximately $493,000,000 in excess of the 1998 digest. The answer is no, because only the millage rate necessary to satisfy the adopted budget would be lawful; therefore, the millage rate shall be appropriately adjusted by the trial court to meet the budget. See Container Corp. of America v. Charlton County, 259 Ga. 389, 392-393 (383 SE2d 105) (1989). Thus, as a matter of law, the use of such excessive millage rate constitutes plain error and an abuse of discretion by the trial court.

On August 18, 1999, the Board of Commissioners of Clayton County brought a petition in the Superior Court of Clayton County under OCGA § 48-5-310 for permission to temporarily collect taxes, because the 1999 tax digest could not be approved by the State Revenue Commissioner where more than three percent of the total taxable tangible digest of the county was on appeal. The trial court ordered the matter set for hearing after notice by publication on August 30, 1999, at 8:30 a.m. The City of College Park sought to intervene, because the tax digest also affected its tax collections.

A hearing was held on August 30,1999, at which Lee Sexton, pro se, and other intervenors appeared, presented evidence, and were heard. The intervenors stipulated that there existed a need for temporary collection of taxes in some amount; however, they objected to the method devised by the county for setting the 1999 millage rate based on an unapproved 1999 tax digest that would produce a revenue surplus in excess of the adopted 1999 budget. The total projected general revenue from all revenues and fire districts amounted to $104,952,866. The budget amounted to $91,366,498. Thus, when 95 percent of collections of ad valorem taxes was applied to the ad valorem taxes potentially generated from the 1999 tax digest, there would be a budget surplus of approximately $5,952,312, if the appeals caused no reduction in the 1999 tax digest. The 1998 tax digest was $4,507,118,236, while the 1999 tax digest was $5,000,961,941.

The senior commercial appraiser for the county testified that the only difference between the 1997 tax digest and the disputed 1999 tax digest was transfer of property, subdivision of property, demolition of structures, and new businesses (the 1998 tax digest had not been audited); however, this amounted to a difference of $493,000,000 for all property subject to assessment. The appraiser contended that the use of the contested 1999 tax digest was appropriate for collection of the temporary taxes. The finance director prepared the county budget based upon the 1999 tax digest, local option sales taxes, interest income, court-imposed fines, service charges, and intergovernment grants. The 1999 ad valorem tax millage rate adopted by the county commissioners was 4.11 for general purposes and 4.74 for the fire districts, which was the same millage rate as set for 1998. The county asked the trial court to apply such 1999 adopted millage rate to the 1999 tax digest to collect temporary taxes to meet the 1999 budget. When a temporary tax is imposed under court order, it does not have to be advertised with the budget and millage rate. The temporary taxes at the 1999 millage rate based upon the greater contested 1999 tax digest would, with all other revenue, produce $5,952,312 in excess of ad valorem tax revenue of the 1999 budget for revenue from property without taking into consideration the reduction of the 1999 tax digest from successful taxpayer appeals.

The trial court granted the right to temporarily collect taxes based on the 1999 millage rate and the greater 1999 tax digest to meet the 1999 budget by order dated August 31, 1999, but filed on September 1, 1999. On September 10, 1999, taxpayer Sexton, acting pro se, as a taxpayer appealed the order of August 31, 1999. On September 16, 1999, Clayton County sought an order to modify the order dated August 31, 1999, to prevent the automatic supersedeas effect of Sexton’s notice of appeal. A rule nisi hearing was held on September 21, 1999. On September 22, 1999, the trial court by written communication indicated that the trial court no longer had jurisdiction to amend the order of September 1, 1999. The matter was docketed in this Court on October 4, 1999. Held'.

The sole enumeration of error is that “[t]he Trial Court erred in granting the Order for Immediate and Temporary Collection of Taxes.”

The superior court has the power to determine how temporary taxes shall be levied and collected under OCGA § 48-5-310 (f), including the power to set the millage rate. Bd. of Commrs. of Fulton County v. 1991 Tax Digest for Fulton County, 261 Ga. 702 (410 SE2d 721) (1991); see also In re Bd. of Twiggs County Commrs., 249 Ga. 642 (292 SE2d 673) (1982). In this case, the trial court directed that collection be made under OCGA § 48-5-310 (f) (1), based upon the rejected greater 1999 tax digest, using the 1999 millage rate. However, the trial court went further and ordered that the 1999 millage rate adopted by the Clayton County Board of Commissioners be applied without adjustment for the potentially greater digest or possible revenue surplus in excess of the adopted 1999 budget..

“Since the word ‘taxation’ includes a determination of the rate of levy and the imposition of the levy, an essential part of the sovereign power and process [cits.], it follows that property will not ordinarily be deemed as taxed until the tax has been levied.” Rayle Elec. Membership Corp. v. Cook, 195 Ga. 734, 735 (3) (25 SE2d 574) (1943). Thus, the Clayton County Board of Commissioners, as the governing authority, shall compute the millage rate necessary to produce revenue from taxation of all ad valorem property on the digest, real and personal, when combined with other revenues reasonably expected to be received during the year which would provide revenues sufficient to defray the expenses and purposes of the county for the year after adopting a budget. 1983 Ga. Const., Art. IX, Sec. IV, Par. I (a); Art. EX, Sec. IV, Par. II; OCGA §§ 36-5-22.1 (a) (2); 36-81-1 et seq.; 48-5-32 (b), (c); 48-5-32.1 (a) (3); 48-5-273; 48-8-91 (a); Container Corp. of America v. Charlton County, supra at 392; In re Bd. of Twiggs County Commrs., supra at 644. “It being the duty of the commissioner [s] to fix a rate for taxation that would produce sufficient funds to defray the county expenses for the year, [they] had authority to [set the tax millage rate].” Bang v. Williams, 211 Ga. 921, 923 (89 SE2d 639) (1955). See also OCGA §§ 36-81-5 (b); 36-81-6. “[T]he county would have accordingly set a millage rate which would have yielded an amount of money necessary to meet its budget.” Container Corp. of America v. Charlton County, supra at 392. See also OCGA §§ 36-81-5; 36-81-6. The millage rate as set by the county commissioners must rise or fall when applied to the tax digest used to levy taxes to meet the adopted budget so as to avoid intentionally creating a surplus. Id. at 392-393. Thus, when the annual tax digest and budget are established and adopted, the county commissioners must set the millage rate to meet but not exceed the adopted budget. Id. See also OCGA §§ 36-81-5; 36-81-6.

While county commissioners cannot expend money beyond the specified purposes enumerated in the Constitution, a large discretion is vested in the county commissioners in the expenditure of public money within the specified purposes enumerated in the Constitution. Humber v. Dixon, 147 Ga. 480 (2) (94 SE 565) [(1917)]. This court will not interfere with the discretionary action of the county commissioners within the sphere of their legally delegated powers, unless such action amounts to an abuse of discretion. Dyer v. Martin, 132 Ga. 445 (3) (64 SE 475) [(1909)].

Whatley v. Taylor County, 224 Ga. 669, 670 (164 SE2d 121) (1968). The county commissioners have the discretionary authority to establish a budget and to set the millage rate, with which a court cannot interfere, absent an abuse of discretion. See OCGA §§ 36-81-5; 36-81-6. However, the commissioners have no authority to set a millage rate that is intended to create a surplus in excess of budgeted purposes. See generally OCGA §§ 36-81-5; 36-81-6.

The power and authority to set a millage rate for ad valorem taxes and levy taxes by the county commission extend only to revenues sufficient to satisfy the budget and not to intentionally create a surplus of revenue beyond that necessary to pay expenses and carry out the budgeted public purposes. OCGA §§ 36-5-22.1 (a) (2); 48-5-32 (b) (2), (c); 48-8-91 (a); Container Corp. of America v. Charlton County, supra at 392-393.

Where there existed evidence before the trial court that, when the millage rate adopted by the commissioners for 1999 was applied to the rejected 1999 tax digest, a revenue surplus would be produced in excess of the adopted budget, the trial court erroneously authorized the commissioners to do indirectly what they had no power or authority to do directly, i.e., amass a surplus in excess of the budget. See generally OCGA §§ 36-81-5; 36-81-6. Under OCGA § 48-5-310, the county commissioners had the burden of proof, not only as to the condition precedent for the trial court’s exercise of its jurisdiction to order a temporary collection of taxes, but also as to establish a legal millage rate sufficient to meet the current adopted budget so that the trial court could exercise its sound and informed discretion to “establish the basis on which the temporary tax on each parcel of property shall be established and the manner in which the taxes shall be billed, collected, and otherwise received.” OCGA § 48-5-310 (f). Absent such showing, the trial court has the discretion to set the millage rate itself based upon the best information available, i.e., prior digests and millage rates. However, the trial court does not have an unfettered discretion to pull a millage rate out of thin air without some basis in fact in relation to the adopted budget. OCGA § 48-5-310; In re Bd. of Twiggs County Commrs., supra at 644. The county initially met such burden by presenting evidence of the 1999 adopted millage rate and budget, because the presumption arises that the commissioners did their duty in passing a lawful millage rate based upon a legal budget and not to have exceeded their authority, until shown to the contrary. McDowell v. Judges Ex Officio, 235 Ga. 364 (219 SE2d 713) (1975); Allen v. Thomas, 225 Ga. 650, 652 (171 SE2d 132) (1969); Fine v. Dade County, 198 Ga. 655, 662 (32 SE2d 246) (1944). See generally OCGA § 36-81-1 et seq. However, when evidence is introduced that challenges the correctness of the millage rate and the evidence shows without dispute that the duty was not performed, the presumption has been rebutted, and the undisputed evidence controls. Todd v. State, 205 Ga. 363, 365-366 (1) (53 SE2d 906) (1949).

Here, the intervenors’ evidence overcame the presumption of correctness of such adopted 1999 millage rate by showing that the millage rate, when applied to the greater 1999 tax digest, would produce a surplus of revenue over the 1999 budget. The county argues that such 1999 tax digest had the potential to change through tax assessment appeals, particularly Delta Air Lines’ appeal; the millage rate adopted must be based upon the face amount of the digest and not upon any changes that may arise from appeal. See Container Corp. of America v. Charlton County, supra at 392-393. When too many appeals exist in a digest to make the total tax revenue uncertain to satisfy the adopted budget, it is for such reason that the State Revenue Commissioner must reject the tax digest. It is to avoid such problems that the trial court has three possible bases for collecting temporary taxes. OCGA § 48-5-310 (f).

The evidence presented placed in direct conflict the validity of the millage rate, because the millage rate would produce revenue in excess of the adopted budget. See generally Jenkins v. Garrison, 265 Ga. 42, 47-48 (3) (453 SE2d 698) (1995); Coleman v. Montgomery County, 228 Ga. App. 276, 278 (491 SE2d 495) (1997). The county put up no further evidence to rebut that the millage rate would produce a revenue surplus or even show a revenue shortfall to meet the budget. All the county showed on cross-examination was that the 1999 digest could potentially change downward on appeal, producing less ad valorem revenue; this meant that the legality of the 1999 millage rate applied to the larger 1999 digest would be illegal as applied as a temporary basis .to collect taxes, unless the contingency occurred that the digest changed substantially through appeal. This was the reason that the Revenue Commissioner rejected the tax digest in the first place. The trial court, thus, abused its discretion by using the larger 1999 tax digest with the 1999 millage rate (the same as the 1998 millage rate) to meet the 1999 budget when such procedure would produce an impermissible revenue surplus. In re Bd. of Twiggs County Commrs., supra. Thus, the trial court abused its discretion in the selection of the basis upon which to apply the temporary tax, absent sufficient evidence from the county that such millage rate did not exceed the budgeted needs and purposes of the county.

Therefore, the trial court’s order is vacated, and the matter is remanded for further determination by the trial court as to whether or not the 1999 millage rate adopted by the county is appropriate when applied to the larger 1999 tax digest to meet, but not exceed, the 1999 adopted budget. On remand, to the extent that the person’s temporary taxes already billed and collected equals the taxes personally collected for 1998 based upon the 1998 tax digest, 1998 millage rate, and the 1998 budget or that pro rata portion of the temporary tax collected which equals the person’s 1998 taxes, such temporary taxes constitute prima facie a proper collectible temporary tax that does not exceed the 1999 budget, because the 1998 tax digest, millage, and budget have not been challenged. See generally In re Bd. of Twiggs County Commrs., supra. Thus, the county may keep and use such amount of temporary taxes collected that does not exceed the 1998 taxes for purposes of meeting the 1999 budget without further determination. The trial court’s use of OCGA § 48-5-310 (í) (1) must be reexamined to the extent that the temporary taxes billed persons exceed the 1998 taxes billed such persons in order for the county to retain the excess 1999 taxes collected over the 1998 taxes, and evidence at a hearing must be presented to show that the 1999 millage rate and the 1999 tax digest will not illegally produce revenue in excess of the 1999 budget. However, evidence that the millage rate employed would produce a revenue deficit when applied to the larger 1999 tax digest would also prove that the 1999 millage rate was valid. Further, the trial court may choose to use another basis under OCGA § 48-5-310 (f) (2) or (3) to collect temporary taxes rather than determine if OCGA § 48-5-310 (f) (1) produces an ad valorem revenue surplus over the budget.

Decided January 31, 2000 —

Reconsideration denied February 21, 2000 —

Lee Sexton, pro se.

Thurbert E. Baker, Attorney General, Hancock & Echols, Jack R. Hancock, Brian R. Dempsey, Donald M. Comer II, Laurel E. Henderson, for appellee.

Judgment vacated and remanded with instructions.

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

On Motion for Reconsideration.

The Commissioners of Clayton County, as part of their normal or emergency budget, could have created a contingency fund so that if revenue collections based upon the tax digest and millage rate fell below the budget, i.e., taxes not paid, tax appeals go for the taxpayers, or Delta Air Lines won or partially won its tax appeals, there would be funds to meet such shortfall; however, to do this, the commissioners would have potential political reactions from taxpayers complaining that more revenue was budgeted than was needed to pay for actual as opposed to contingent expenses. OCGA §§ 36-81-3 (b) (1), (3); 36-81-5 (b), (d), (e), (f); 36-81-6. While the county must have a balanced budget as defined in OCGA § 36-81-3 (b) (1), (3), it cannot tax a tax digest and discount it for contingencies unbudgeted and set the millage rate based upon such reduced tax digest and ad valorem tax projections. The contingencies must be budgeted. While OCGA § 48-5-381 allows a “reserve fund” to be created for deferred programs, unexpected revenue, grants, or greater sales tax receipts, this does not permit the commissioners to set a millage rate greater than is necessary to satisfy the budget based upon the tax digest and all other revenue and thereby create an unbudgeted surplus. None of the cases cited by the county permits such levy practices.

Kilpatrick Stockton, Earle R. Taylor III, Alston & Bird, Kenneth B. Pollock, amici curiae.


author: Smith, Judge.

text:
    A99A1645.
    WIDENER v. THE STATE.
    (529 SE2d 899)
   Smith, Judge.

After a bench trial, Mark Jason Widener was convicted of possession of marijuana and appeals the judgment of conviction.

Construed to support the verdict, the evidence shows that the police executed a no-knock search warrant on the house of Kevin Clark. When they entered the house, the smell of marijuana smoke was overwhelming. They surprised a group of people sitting around a coffee table smoking marijuana. Widener was sitting at the coffee table, where less than an ounce of marijuana was lying “in plain view” in a plastic bag and two or three marijuana cigarettes were burning in the ashtrays on top of the coffee table. The officer did not testify that he observed Widener with a marijuana cigarette in his hand.

In his sole enumeration of error, Widener argues that the evidence did not show he was in possession of the marijuana. We disagree. “Possession may be joint or exclusive, and actual or constructive.” (Citations omitted.) Sanders v. State, 199 Ga. App. 671, 672 (2) (405 SE2d 727) (1991). It is true that spatial proximity alone, or “mere presence at the scene of the crime, and nothing more to show participation of a defendant in the illegal act, is insufficient to support a conviction.” (Citation omitted.) Shirley v. State, 166 Ga. App. 456, 457 (1) (304 SE2d 468) (1983). But

[w]here drugs are found in the immediate presence of the defendant, the jury is authorized to find they are in the constructive possession of the accused. The drugs here were found in the immediate presence of the appellant. The jury would be authorized to convict if they should find beyond a reasonable doubt that the appellant had actual or constructive possession either alone or jointly with others. If there is any evidence of guilt, it is for the jury to decide whether that evidence, circumstantial though it may be, is sufficient to warrant a conviction.

(Citations and punctuation omitted.) Farmer v. State, 188 Ga. App. 375, 376 (373 SE2d 68) (1988). In Sanders, supra at 671, this court held that a jury was authorized to find Sanders in constructive possession of cocaine “within 'arm’s reach’ ” in a closed matchbox on the nightstand next to a bed he was occupying. In a bench trial, the trial court sits as the trier of fact, and its findings are analogous to a jury verdict. Green v. State, 239 Ga. App. 617, 618 (2) (521 SE2d 441) (1999).

Decided February 21, 2000.

D. Duston Tapley, Jr., for appellant.

David B. Pittman, Solicitor, for appellee.

Francis v. State, 231 Ga. App. 112 (497 SE2d 827) (1998), relied upon by Widener, is inapposite here. In Francis, police officers conducted a controlled delivery of cocaine to Francis’s father. As they attempted to arrest the father, they found Francis standing in the living room. Marijuana seeds were found in an upstairs bedroom, but no evidence connected Francis with that bedroom. Marijuana cigarette butts were found in an ashtray in the living room, and loose marijuana was found inside a box under the coffee table, but Francis was not connected to the marijuana.* Conflicting testimony was presented regarding the smell of marijuana in the apartment, and “an agent who recalled it conceded that the smell could linger for days.” Id. at 113. We concluded that mere spatial proximity to contraband, without more, was insufficient to establish constructive possession. Id.

Here, in contrast, the evidence showed the marijuana was not only within arm’s reach of Widener but in plain view and being smoked in Widener’s immediate presence at the time the police entered the home. Even though the officer did not testify that he saw Widener or any other person at the coffee table in the act of smoking a marijuana cigarette, the trial court was authorized to find that Widener was, at the least, in joint and constructive possession of the marijuana. Viewed in the light most favorable to the verdict, the evidence was sufficient to enable any rational trier of fact to find Widener guilty of the offense charged, beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Judgment affirmed.

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

       While Farmer was originally physical precedent only, it has been cited repeatedly by this court with approval and without any indication of its precedential status. See, e.g.,
        Sanders, supra; Hunt v. State, 196 Ga. App. 694, 695 (2) (396 SE2d 802) (1990).

       We noted that the State failed to support by citation to the record its assertion that Francis was “ ‘standing roughly three feet from marijuana’ ” sitting on a coffee table. Id. at 112, n. 1.


text:
    A99A1911.
    IN RE PETITION OF ROSCOE.
    (529 SE2d 897)
   Ruffin, Judge.

Laura J. Roscoe filed a petition in the probate court of Henry County seeking temporary guardianship of A. T. P., a minor child. The probate court denied her petition, and she filed a de novo appeal in the superior court. The superior court also denied her petition, and she appeals. For reasons which follow, we affirm.

Roscoe lives with A. T. P. and his mother, who is unemployed. Roscoe provides the sole financial support for the child. The child has no health insurance, but Roscoe’s current health insurance would extend to A. T. P. if he was under her temporary guardianship.

Roscoe filed her petition for temporary guardianship along with the mother’s temporary relinquishment of parental rights, which included a request that Roscoe be appointed the child’s temporary guardian. The sole reason for Roscoe’s petition was to qualify the child under Roscoe’s health insurance coverage.

OCGA § 29-4-4.1 provides a method for appointing a temporary guardian of the person or property, or both, of a minor child who has a living natural guardian. The probate court has the power to appoint a temporary guardian “when the minor is alleged by the person having actual physical custody of such minor to be in need of a guardian.” If a natural guardian chooses an individual to be her child’s temporary guardian, the probate court “must honor [that] preference if it is stated in a notarized relinquishment of parental rights.” The temporary guardianship will be dissolved by the probate court at the natural guardian’s request. A temporary guardian cannot be appointed under this statute without notice to the child’s natural guardians, nor may an appointment be made over the objection of a natural guardian.

The superior court denied Roscoe’s petition, finding that it need not accept the mother’s temporary relinquishment of rights if it did not believe the child was in need of a guardian, that the child was not in fact in need of a guardian, and that obtaining health insurance for the child was not sufficient reason for the court to grant a guardianship. Roscoe claims that the superior court was required to accept the mother’s designation of a temporary guardian and that obtaining health insurance for the child was sufficient reason to appoint a temporary guardian.

Under Roscoe’s interpretation of OCGA § 29-4-4.1, the probate court had no discretion to refuse to appoint her as temporary guardian of A. T. R so long as his mother had expressed a preference that Roscoe be appointed as his temporary guardian in her notarized relinquishment of parental rights. Although the natural guardian may choose who will act as her minor child’s temporary guardian, the initial decision to appoint the temporary guardian is not mandatory on the court. The statute provides only that the probate court “shall have the power” to appoint a temporary guardian. Probate courts have jurisdiction to appoint the guardians of minors. Under Roscoe’s interpretation of OCGA § 29-4-4.1, the legislature has effectively transferred that jurisdiction to an applicant and natural guardian who file the appropriate paperwork, regardless of the actual situation of the minor or even the truthfulness of the statements submitted to the court. We decline to accept this interpretation. Probate courts retain judicial discretion in the appointment of temporary guardians under OCGA § 29-4-4.1. The question before us, then, is whether the court abused its discretion in refusing to appoint Roscoe to be the temporary guardian of A. T. P.

It is apparent from the record that Roscoe filed the petition only to qualify A. T. P. under her health insurance plan. The court asked: “Why is the minor in need of a guardian when it’s got a mother living in the home with him?” Roscoe’s attorney answered: “The minor is in need of a guardian so that the minor child can have health insurance granted.”

A temporary guardianship would, by operation of law, constitute a permanent guardianship for the purposes of health insurance coverage, so long as the temporary guardian agrees to support the ward.* But OCGA § 29-4-4.1 is a statute primarily designed to provide for the appointment of temporary guardians, not the provision of health insurance. Health insurance is an important benefit for a child, but we can find no precedent for the proposition that a child who lacks health insurance is in need of a guardian for that reason alone. Here, there was no basis for the appointment of a guardian other than to obtain an isolated but desirable benefit for the child.

Decided February 21, 2000.

Steven H. Koval, for appellant.

OCGA § 29-4-4.1 (a) requires that the child be in need of a guardian. The child was living with his mother, who was not alleged to be incompetent or under any duress or difficulty with respect to her parental responsibilities, who had been caring for her child, and who would presumably continue to care for the child regardless of the disposition of the petition at hand. Given that the evidence showed that A. T. P. was not in need of a guardian, notwithstanding the allegation by Roscoe to the contrary, we find the superior court did not abuse its discretion by refusing to appoint Roscoe as A. T. P.’s temporary guardian.

Roscoe’s reliance on Brooks v. Parkerson, is misplaced. There, the Supreme Court of Georgia recognized the “constitutionally protected interest of parents to raise their children without undue state interference.” We do not find that the protected interest of parents to rear their children without interference is analogous to this.case, which involves a relinquishment of parental rights to another. The court did not interfere with the mother’s parental rights by refusing to grant Roscoe’s petition.

Judgment affirmed.

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

       See OCGA §§ 5-3-2 (a); 5-3-29.

       See Phillips v. State, 261 Ga. 190 (402 SE2d 737) (1991) (no application for appeal is required from decisions of the superior courts reviewing judgments of the probate courts).

       “Natural guardians” include either parent. If a parent is dead, or if the parents are legally separated or divorced, the parent having custody is the natural guardian. OCGA § 29-4-2.

       OCGA § 29-4-4.1 (a) (1).

       OCGA § 29-4-4.1 (a) (3).

       OCGA § 29-4-4.1 (c).

       OCGA § 29-4-4.1 (a) (1), (b).

       OCGA § 29-4-4.1 (a) (3).

       OCGA § 29-4-4.1 (a) (1).

       OCGA § 15-9-30 (a) (5).

       OCGA § 29-4-4.1 (d).

       The superior court noted its previous denials of petitions for temporary guardianship which had been requested so that a child could qualify for a school district.

       265 Ga. 189 (454 SE2d 769) (1995).

       Id. at 191.


author: Barnes, Judge.

text:
    A99A2399.
    In the Interest of T. M. S. et al., children.
    (529 SE2d 892)
   Barnes, Judge.

Claiming insufficient evidence, the appellant appeals the termination of her parental rights to her two minor children. Because the trial court was authorized to find that there was clear and convincing evidence in favor of termination, we affirm.

1. In reviewing a biological parent’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 parent’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 factfinding. In the Interest of L. H., 236 Ga. App. 132, 133 (1) (511 SE2d 253) (1999).

Viewed in this light, the record shows that at the time appellant’s rights were terminated, she was seventeen and had herself been in the protective custody of the Department of Family & Children Services (“DFACS”) since she was six months old. Her children, T. Mi S. and C. M. P. L. S., were two years old and nine months old, respectively, at the time of the termination hearing.

When T. M. S. was born on April 24, 1997, appellant was fifteen years old and living with Adelle Amos, a foster mother she had lived with on and off since she was six years old. Within days of his birth, DFACS petitioned the juvenile court for custody of T. M. S. When he was less than one month old, a consent order was entered stipulating that he was deprived. DFACS submitted a case plan to the juvenile court, and the court conditioned reunification upon appellant’s compliance “with each and every portion of the plan, including any and all requirements for evaluation and treatment and all requirements for financial child support.” This was the first of four case plans developed by DFACS with regard to appellant’s children; each case plan had the same basic goals. These goals were for appellant to: (1) maintain contact with her children; (2) attend counseling; (3) continue her education; and (4) have a source of income to support her children.

Appellant’s caseworker, Craig Campbell, testified that it was his initial goal to reunite T. M. S. with appellant. He “wanted her to have a chance unlike the chances that she may not have had in her life.” In furtherance of this goal, he placed T. M. S. with Amos, the same foster mother charged with appellant’s care.

After only two months, Amos told Campbell she was concerned about T .M. S.’s well-being with appellant in the home, and T. M. S. was placed elsewhere. Amos’ specific concerns were that appellant “would take the baby out and come home late in the middle of the morning [the next day], and I would ask her not to do that but sometime it would happen again and again and I just felt uncomfortable with that.” This would occur two to three times per week.

Appellant’s aunt, Thelma Rogers, testified that during this same time period, a friend of appellant’s called, told her she had T. M. S., and asked if Rogers could take him. Rogers took care of T. M. S. for a few days before asking appellant’s caseworker to pick him up. During this time, Rogers did not know appellant’s whereabouts or why appellant’s friend had been caring for T. M. S.

Less than a year after T. M. S. was born, appellant became pregnant with C. M. P. L. S., who was born on August 10,1998. Amos testified that she noticed appellant’s morning sickness, asked if she was pregnant, and urged her to obtain prenatal care. Appellant denied that she was pregnant and did not obtain any prenatal care until she was six months pregnant and could no longer deny the pregnancy. She later told Amos that she tried to conceal her pregnancy because she did .not want DFACS to take her baby.

DFACS promptly petitioned for custody of C. M. P. L. S. after her birth, and after a hearing, the juvenile court issued an order on September 18, 1998, finding that C. M. P. L. S. was deprived. In this order, the juvenile court found that appellant “has failed to meet any of the goals of the previous case plans and continues to place her interests and desires ahead of those of her children.”

Shortly after C. M. P. L. S.’s birth, appellant left Amos’ home and stayed with a friend, Rachona Smith. Smith testified that appellant told her that “everybody was against her,” including Amos, and that she needed a place to stay. Smith tried “to give [appellant] some stability” and coached her about what she needed to do to regain custody of her children. Initially, appellant attended her GED classes and went with Smith to visit her children at a day care center. Smith also helped appellant get a job at McDonald’s. Appellant never reported for work, however, because she never obtained an identification card, even though her caseworker gave her a copy of her birth certificate and money to obtain the card.

Later, after appellant started seeing a boyfriend, she stopped visiting her children with Smith. She also started disappearing for three or four days at a time. When she came home, she would “take a bath, eat, leave,” and stay away for another three or four days. In Smith’s opinion, appellant was using marijuana because she would come in high, smelling of marijuana, and had bloodshot eyes and “the munchies.” Appellant also stopped going to her GED classes before she was ultimately expelled.

On December 9,1998, DFACS filed a petition to terminate appellant’s parental rights. A copy of this petition was mailed to appellant at Smith’s address on December 22, 1998.

In February 1999, Smith removed appellant’s clothes from her residence and took them to appellant’s caseworker. She testified that she took this action because “[i]t got to the point she wasn’t coming [home for] long periods of time so I felt like she didn’t need my assistance anymore. . . . And I just didn’t want to throw her out or anything like that.”

Smith testified that, based on her observations of appellant during the six months appellant lived with her, appellant was not ready to be a parent. Although appellant loves and wants to be with her children, Smith testified that it did not “take much to distract her into doing something different.”

In February 1999, appellant returned to Amos’ home. Amos testified that she loves appellant, that appellant is “like a daughter to her,” and that appellant calls her “Mama.” Nonetheless, Amos asked appellant’s caseworker to remove her from her home in February because she did not want to put up with appellant’s temper and disobedience anymore. After talking with appellant, Amos agreed that she could continue staying with her but conditioned it on proper behavior. Amos testified that she had no further problems with appellant after this conversation. In the termination hearing held two months later, Amos testified that appellant was still not ready to care for her children.

Dr. William Russell Johnson, a psychiatrist, testified that in 1992, appellant was diagnosed with “borderline personality disorder,” and that it was an extremely unusual diagnosis for a nine-year-old child since this condition was normally seen only in adults. The characteristics of this disorder include fluctuations of mood that happen very quickly, extreme anger, and an extreme need for attention based upon fears of abandonment. These characteristics “tend to be lifelong” because the person suffering from it denies having a problem and therefore fails to seek treatment. Dr. Johnson reexamined appellant in February 1999, two months before the termination hearing, and confirmed that she still had a borderline personality disorder. Although the disorder can improve with maturity, medications, and psychotherapy, Dr. Johnson concluded that appellant had made no significant progress with her disorder over the course of eight years. He characterized her problems as “long term” and saw no “short term change in her behavior.” At the time of the termination hearing, appellant was six months short of being eighteen years old.

Appellant’s caseworker testified that appellant resisted any type of counseling and that his attempts to get her back into counseling in early 1999 failed. Appellant told him at that time that she was not crazy and did not need counseling.

The caseworker further testified appellant was required to work if she was not in school. However, appellant’s only jobs were short-term stints at a nonprofit organization, Hardee’s (one month), and Winn-Dixie (one week). Her last employment ended in October 1998, six months before the termination hearing.

The trial court admitted, without objection, the report of the Court Appointed Special Advocate (CASA) for both of the children. In this report, the CASA described appellant as a person who is “volatile, combative, manipulative, and unpredictable.” Although appellant loves her children, she “has not been able to carry through with what needs to be done to prove herself a mature, competent mother” and “takes no initiative to help herself.” She “did not complete Parenting Classes offered by DFACS” and refused to meet with her older child’s foster parents, who had offered to help with her parenting skills. She was expelled from the Last Chance Program and permanently expelled from all Georgia school systems in January 1998 for violent behavior. This behavior included cursing at staff, destroying a classroom by overturning furniture, and causing a circuit to blow in the school building.

The CASA testified during the termination hearing that appellant spent a lot of her time, effort, and money on self-centered gratification, instead of her children. She further testified that she did not believe appellant would ever reach the level of maturity necessary to parent her children.

Appellant testified and admitted that she was expelled from the Last Chance Program and that she had completely destroyed a building when she got upset. Nine or ten months later, after the birth of her second child, she enrolled in an adult education class to help her obtain a GED. She was also dismissed from this program after receiving three “write-ups.” Another witness testified that appellant returned to her classroom after learning that she was expelled from the program and used “all kinds of abusive language in front of the other students in the classroom.”

Appellant further testified that she tried to find a job after her expulsion from the GED program by filling out applications at three or four fast food restaurants while eating out. When asked why she had not made more of an effort to obtain employment, she replied, “I guess because I don’t have to.” Her response to an inquiry about what she did during the day was, “Besides sleep?” She admitted that she did not go out to look for a job, go to school, or attend counseling. She also acknowledged that she knew these were goals in her case plan.

She further testified that she did not think her children should, like her, remain in a series of foster homes. In her mind, this would not be necessary because she was ready to be a responsible parent. When asked to tell the judge why he should give her a chance to prove that she could be a good parent, her answer demonstrated that she wanted a chance based upon her own emotional needs, not those of her children. She wanted her children to know her; she did not want them to be told that she did not want to be with them; she did not want them to hate her; and she wanted to be a better mother than her own mother had been. Her need for children to fulfill her own emotional needs was also demonstrated by her admitted statement to a school counselor that she would simply have two more children if these were taken away from her.

2. Determining whether parental rights should be terminated involves a two-step analysis. In the first step, the court must first find parental misconduct or inability. That finding must be supported by clear and convincing evidence that: (a) the child is deprived; (b) lack of proper parental care or control caused the deprivation; (c) the cause of the deprivation is likely to continue; and (d) 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 ofL. 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 and punctuation omitted; emphasis in original.) 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).

In this case, appellant asserts the juvenile court abused its discretion when it terminated appellant’s parental rights because “there was no showing that the deprivation is likely to continue or could not be remedied.” We disagree. The record shows that appellant had a longstanding psychological disorder for which she consistently refused or resisted counseling. A psychiatrist testified that her psychological problems were “long-term” and unlikely to be remedied without psychotherapy. Several witnesses with a close relationship to appellant testified that she was not ready to be a parent, and appellant’s own conduct demonstrates the same. Although appellant’s personal behavior in her foster mother’s home improved in the two months before the termination hearing, she made no progress on her case plan goals for reunification with her children. She made no consistent or sustained effort to obtain or maintain employment to support her children and contended at the termination hearing that it was not her responsibility to do so. This evidence supports the juvenile court’s conclusion that the children’s deprivation was likely to continue. See In the Interest of S. L. W., 221 Ga. App. 509, 512 (4) (471 SE2d 579) (1996), overruled on other grounds, In the Interest of C. W. S., 231 Ga. App. 444, 448 (3) (498 SE2d 813) (1998). Appellant’s sporadic attempts to place herself in a position to adequately parent her children “can best be characterized as too little and too late.” In the Interest of A. Q. W., 217 Ga. App. 13, 18 (456 SE2d 284) (1995).

3. In her remaining enumeration of error, appellant contends the juvenile court abused its discretion because no clear and convincing evidence showed that termination of appellant’s parental rights was in the best interests of the children.

After a finding of parental misconduct or inability, the trial court must determine whether termination is in the best interest of the child, taking into consideration the physical, mental, emotional, and moral condition and needs of the child, including the need for a secure and stable home. OCGA § 15-11-81 (a). “Those same factors which show the existence of parental misconduct or inability can also support a finding that the termination of parental rights of the defaulting parent would be in the child’s best interest.” (Citations and punctuation omitted.) In the Interest of E. C., 225 Ga. App. 12, 18 (482 SE2d 522) (1997). Additionally, the juvenile court is authorized to consider the child’s need for a stable home and the detrimental effects of prolonged foster care. In the Interest of M. L., 227 Ga. App. 114, 117 (488 SE2d 702) (1997).

Decided February 21, 2000.

Steven L. Morgan, 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, James A. Chamberlin, Jr., for appellee.

The facts set out above and our review of the entire record show that clear and convincing evidence supports the juvenile court’s finding that termination of appellant’s parental rights would be in the best interests of her children.

Judgment affirmed.

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

       Examples given by the CASA include pedicures, manicures, and hair salon visits.


author: Phipps, Judge.

text:
    A00A0650.
    LONG v. BEACH.
    (529 SE2d 901)
   Phipps, Judge.

Long brought this action against her son, Beach, alleging that he refused to repay $70,000 that she had lent him as a down payment on a home. Finding that when the home was purchased, the parties executed a “gift letter” stating that Beach was under no obligation to repay the money, the trial court granted summary judgment in his favor. Long testified that the gift letter was signed to satisfy a requirement imposed by the mortgage company and that the oral understanding between her and Beach was that he would repay the money upon sale of the house, which has now occurred. She claims that Beach also admitted in an earlier proceeding that he owed her the money. Contending that there are material issues of fact, Long appeals the grant of summary judgment to Beach.

The question is whether the parties intended the money transfer to be a gift or a loan. It is undisputed that the transaction was memorialized in the “gift letter,” which was signed by both parties. The rule is that

Decided February 21, 2000.

Byrne & Counts, Michael T. Byrne, Gregg P. Counts, for appellant.

William R. Ashe, for appellee.

where parties reduce their agreement to writing, all oral negotiations antecedent thereto or contemporaneous therewith are merged into, terminated, and extinguished by the writing, and parol contemporaneous evidence is inadmissible to contradict or vary the terms of a valid written instrument.

Consequently, any prior or contemporaneous oral agreement that the money was a loan rather than a gift would not be admissible to contradict the letter.

In the testimony given by Beach in the earlier proceeding, he merely pondered whether he should give the money to his mother in the interest of family harmony. That did not constitute an admission that he had agreed to repay the money. And even if it did, the parol evidence rule, cited above, would render the agreement unenforceable if it was entered into before or contemporaneous with execution of the written instrument. Any agreement to repay entered into afterward would not be enforceable in this case, as there has been no showing of any consideration in support thereof.

Judgment affirmed.

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

        Ryder v. Schreeder, 224 Ga. 382, 385 (2) (162 SE2d 375) (1968), disapproved on other grounds, Burnette Ford, Inc. v. Hayes, 124 Ga. App. 65, 66-67 (1) (183 SE2d 78) (1971).


author: McMurray, Presiding Judge.

text:
    A00A0215, A00A0411.
    OGBURN v. THE STATE (two cases).
    (529 SE2d 438)
   McMurray, Presiding Judge.

Defendant Ogburn was tried before a jury and acquitted of simple battery. Defendant later filed a motion for correction of judgment and/or modification of the record in an attempt to set aside the earlier denial of his motion for directed verdict of acquittal — which defendant alleged impaired his ability to pursue a malicious prosecution claim. See Monroe v. Sigler, 256 Ga. 759, 761 (6) (353 SE2d 23). These appeals followed the denial of this motion. Held:

Decided February 10, 2000 —

Reconsideration denied February 22,2000

William L. Ogbum, pro se.

Gwendolyn R. Keyes, Solicitor, D. Max Hirsh, Pilar Gigante, Assistant Solicitors, for appellee.

Defendant’s motion for correction of judgment and/or modification of the record does not seek to modify, set aside, or otherwise change the impact of the jury’s verdict finding defendant not guilty of simple battery. This motion’s only intent was to fortify defendant’s alleged rights in a future action for malicious prosecution. The trial court, however, was without authority to provide such relief.

Trial courts generally do not have authority to provide advisory opinions as to which party would prevail on the merits in future litigation absent an immediate need for judicial guidance to avoid additional liability or jeopardizing rights. See Oxford Finance Co. v. Dennis, 185 Ga. App. 177 (363 SE2d 614). Since, in the case sub judice, defendant was merely seeking advice as to which party would prevail on the merits in such future litigation, the trial court did not err in denying defendant’s motion for correction of judgment and/or modification of the record.

Judgment affirmed.

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

       Although Case Nos. A00A0215 and A00A0411 are appeals from this same order, Case No. A99A0411 is a discretionary appeal which this Court was required to grant under OCGA § 5-6-35 (j). Since the record in Case No. A00A0215 is necessary for resolution of Case No. A00A041Í, we hereby consolidate these appeals and deny defendant’s notice of dismissal of Case No. A00A0215.


text:
    A00A0832.
    COLLINS v. THE STATE.
    (529 SE2d 412)
   McMurray, Presiding Judge.

Defendant Bruce Collins appeals his conviction, following a joint jury trial, of two counts of burglary.* Defendant contends that the trial court erred in: (1) allowing an investigator to summarize for the jury an out-of-court statement made by nontestifying co-defendant Victor Lyles by substituting the words “anyone else,” “anybody,” “somebody,” “this individual,” “this other individual,” and “the man,” for defendant’s redacted name in portions thereof; and (2) admitting similar transaction evidence of four earlier burglary convictions against defendant. Held:

1. Co-defendant Lyles’ statement, in pertinent part, limited his (Lyles’) role in the burglaries sub judice to driving the defendant and stolen TVs and stereo equipment in defendant’s possession to the residence of Thomas Little approximately eight times where defendant then sold the same to Little. The record reflects that the trial court allowed the investigator to summarize co-defendant Lyles’ statement insofar as it attributed the instant burglaries to defendant upon the following curative instruction to the jury:

There’s a Constitutional rule, I mean, you know, I’m just going to tell the jury what the law is. The Supreme Court of the United States in 1984, decided that when one defendant made a statement that implicates another defendant, even though — in other words, if Victor Lyles’ statement says something bad about Bruce Collins, ya’ll are not supposed to hear it under the theory of the Supreme Court of the United States that it violates the defendant’s right to confront any witnesses against them which would be a violation of the Sixth Amendment, I believe. Is that correct? Now officer, can you go through that statement and say what Lyles said about himself and not make any reference to Collins?

(Emphasis supplied.)

We find that co-defendant Lyles’ statement as redacted upon the foregoing instruction inculpated the defendant as the person for whom the complained-of language was substituted — this is because the instruction, by its own terms, inevitably pointed to defendant as the perpetrator of any bad acts which co-defendant Lyles did not attribute to himself. Consequently, the admission in evidence of co-defendant Lyles’ statement was error for violation of the Confrontation Clause of the United States Constitution. Bruton v. United States, 391 U. S. 123 (88 SC 1620, 20 LE2d 476), as refined in Richardson v. Marsh, 481 U. S. 200, 211 (107 SC 1702, 95 LE2d 176) and Gray v. Maryland, 523 U. S. 185 (118 SC 1151, 1155, 140 LE2d 294); accord Hanifa v. State, 269 Ga. 797, 803 (2) (505 SE2d 731).

Unless the statement is otherwise directly admissible against the defendant, the Confrontation Clause is violated by the admission of a nontestifying co-defendant’s statement which inculpates the defendant by referring to the defendant’s name or existence, regardless of the existence of limiting instructions. ... A co-defendant’s statement meets the Confrontation Clause’s standard for admissibility when it does not refer to the existence of the defendant and is accompanied by instructions limiting its use to the case against the confessing co-defendant.

Id.

“To be harmless, a Bruton error must be harmless beyond a reasonable doubt. Schneble v. Florida, 405 U. S. 427 [(92 SC 1056, 31 LE2d 340)] (1972).” Munford v. Seay, 241 Ga. 223, 224 (1) (244 SE2d 857) (1978). “Where overwhelming evidence of a defendant’s guilt exists apart from the statement of the co-defendant, then any violation of Bruton is harmless beyond a reasonable doubt.” Adorno v. State, 236 Ga. App. 588, 592 (3) (512 SE2d 703) (1999).

Cunningham v. State, 240 Ga. App. 92, 98 (3) (522 SE2d 684). Apart from the statement of co-defendant Lyles, which the investigator summarized and redacted for the jury, the evidence against defendant was circumstantial. Two witnesses identified defendant as frequently delivering TVs and VCRs to Little’s residence in the month the instant burglaries occurred. These witnesses testified that co-defendant Lyles drove defendant to Little’s house where the defendant sold the stolen property to Little. An investigator’s testimony established that the police seized the TVs and VCRs stolen in the foregoing burglaries upon executing a search warrant at the Little residence in consequence of an earlier controlled drug buy involving Little. Additionally, four prior convictions for burglary were admitted against the defendant. No evidence, however, was introduced which even placed the defendant at the scenes of the burglaries sub judice, or, except in the context of deliveries made over a 30-day period, showed recent unexplained possession of stolen property as to the defendant. While the sum of such circumstances, viewed in a light most favorable to the verdict, might be deemed sufficient to authorize a rational trier of fact to conclude beyond a reasonable doubt that defendant was guilty as charged under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (and we do not reach this question), compare Caldwell v. State, 183 Ga. App. 110, 111-112 (1) (357 SE2d 845) and Wells v. State, 151 Ga. App. 416 (1), 417 (260 SE2d 374) (overruled on other grounds, Copeland v. State, 160 Ga. App. 786, 789 (12) (287 SE2d 120)), it is not so overwhelming as to render the Bruton error in this case harmless beyond a reasonable doubt. See Cunningham v. State, 240 Ga. App. at 98 (3), supra. Under these circumstances, we cannot say that the error was harmless and therefore reverse defendant’s conviction.

2. We address defendant’s remaining claim of error as to the State’s similar transaction evidence in that it will be relevant on retrial. In this regard, defendant argues that such evidence was inadmissible for dissimilarity to the burglaries charged in the instant case. We conclude that the trial court did not err in admitting the State’s similar transaction evidence, burglaries to which defendant pleaded guilty in 1982,1984,1988, and 1993. Each was similar to the burglaries charged in the instant indictment to the extent that defendant took property having value on resale upon entry gained through a window, door, or ceiling. That the 1982, 1984, and 1988 burglary convictions admitted against the defendant occurred more than ten years before the instant burglaries is insignificant in that the record shows that the defendant was incarcerated for a substantial part of the interim.

Decided February 8, 2000 —

Reconsideration denied February 22, 2000.

William P. Nash, Jr., for appellant.

J. Gray Conger, District Attorney, Robert B. Bickerstaff II, Assistant District Attorney, for appellee.

The admission of other criminal acts by the defendant does not turn on the basis of the number of similarities between the criminal acts alone, particularly where, as here, evidence of independent crimes is introduced to show bent of mind. Raulerson v. State, 268 Ga. 623, 631 (8) (491 SE2d 791); accord Jones v. State, 226 Ga. App. 721, 722-723 (1) (487 SE2d 618) (“When similar transaction evidence is being introduced to prove motive, intent, or bent of mind, it requires a lesser degree of similarity to meet the test of admissibility than when such evidence is being introduced to prove identity.”). A trial court’s decision to admit prior similar transaction evidence lies within its sound discretion and, absent an abuse thereof, will not be disturbed on appeal. See Brooks v. State, 230 Ga. App. 846 (1) (498 SE2d 139). We find no abuse of discretion in the instant circumstances. Accordingly, this enumeration of error is without merit.

Judgment reversed.

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

       The jury acquitted defendant of a third count of burglary.

       In this regard, the trial court denied defendant’s motion in limine, motion for mistrial, and motion for new trial.

       The record shows that thirteen years confinement was adjudged against defendant upon two of these burglaries: 1982 (eight years) and 1988 (five years to serve two, remainder probated). Defendant’s sentence for his 1993 burglary conviction shows revocation of probation as to the years probated by his sentence for the 1988 burglary. Defendant’s sentence upon the 1984 burglary conviction is not legible in the record; however, in light of the foregoing this is not significant.


author: Miller, Judge.

text:
    A99A1681.
    McFARLAND & ASSOCIATES, P.C. v. HEWATT.
    (529 SE2d 902)
   Miller, Judge.

Is a motion for contempt made more than 30 days after entry of a court order directing compliance with postjudgment discovery a new proceeding within the meaning of OCGA § 15-6-77 (e) (1)? We hold it is and affirm the superior court’s refusal to order the clerk to accept such a contempt motion without proffer of the appropriate filing fees.

The following chronology is undisputed: The law firm of McFarland & Associates, RC. obtained a judgment against Lawrence David Hewatt on April 29,1998. On May 14,1998, postjudgment interrogatories were accepted for filing without any additional filing fee. More than 30 days passed without response by defendant. On August 14, 1998, the superior court ordered defendant to comply with postjudgment discovery within 15 days. In November 1998, McFarland attempted to file a “Motion for Contempt Order,” but since this motion was presented more than 30 days after the August 14 order, the clerk’s office informed McFarland that a filing fee would be due. McFarland refused to pay any additional filing fee, and, in order to avoid an argument, the deputy clerk filed the motion without charging a filing fee. The superior court denied McFarland’s “Motion for Order to Clerk,” seeking to compel the clerk to file McFarland’s contempt motion without additional costs, and McFarland appeals this order.

The clerk of the superior court shall not be required to file any civil case or proceeding until the fees required by OCGA §§ 15-6-77 and 15-6-77.2 have been paid to the clerk. “Except for the filing of civil cases in which the filing party is indigent ... , all sums specified in [OCGA § 15-6-77] shall be paid to the clerk at the time of filing or other service.” As used in calculating the costs due in civil cases, “[a]ny postjudgment proceeding filed more than 30 days after judgment or dismissal in an action shall be considered as a new case for purposes of this Code section.”

“In all interpretations of statutes, the ordinary signification shall be applied to all words, except words of art. . . ,” “[I]n its ordinary signification, ‘shall’ is a word of command, and the context ought to be very strongly persuasive before that word is softened into a mere permission.” In the plain words of the statute, postjudgment proceedings filed more than 30 days after judgment or dismissal shall be considered a new case for purposes of calculating the costs the superior court clerk is entitled to charge and collect. The superior court correctly denied McFarland’s motion to compel the clerk to accept for filing the motion for contempt (for failure to comply with court-ordered postjudgment discovery), as that motion was submitted more than 30 days after judgment without tender of the filing fee required for new cases.

Decided February 22, 2000.

Robert P. McFarland, for appellant.

Vinson, Talley, Richardson & Cable, J. Glenn Richardson, Craig L. Burnsed, for appellee.

Lawrence D. Hewatt, pro se.

Judgment affirmed.

Pope, P. J., and Smith, J., concur.

       That act of filing does not render this appeal moot, as there is no authority for the clerk to waive the county’s right to filing fees except upon a proper showing of indigence. Whitehead v. Lavoie, 176 Ga. App. 666 (337 SE2d 357) (1985) (whole court).

       OCGA § 9-15-4 (a).

       OCGA § 15-6-77 (d).

       (Emphasis supplied.) OCGA § 15-6-77 (e) (1).

       OCGA § 1-3-1 (b).

        Garrison v. Perkins, 137 Ga. 744, 755 (74 SE 541) (1912).


author: Pope, Presiding Judge.

text:
    A99A1757.
    SCOTT v. MAMARI CORPORATION et al.
    (530 SE2d 208)
   Pope, Presiding Judge.

Robert Lewis Scott, Jr. d/b/a Scott Construction reconstructed a dam located on a real estate development but was not fully paid for his services. Apparently unable to recover from the developer with whom he contracted, Scott filed claims against two of the development’s creditors and claimed that he was a third-party beneficiary to certain financing agreements related to the development. The trial court granted the creditors’ motion for summary judgment, and Scott appeals. Because we find that Scott was neither a third-party beneficiary of these agreements nor entitled to equitable relief against the creditors, we affirm.

On review of the grant of a motion for summary judgment, we construe the facts and all inferences in favor of the nonmovant. Dixieland Truck Brokers v. Intl. Indem. Co., 210 Ga. App. 160, 163 (3) (435 SE2d 520) (1993); Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

In 1995, Mountain Lakes Resort, Inc. (the “Resort”) solicited several bids for the dam restoration and eventually accepted Scott’s bid to perform the work. The Resort applied for a line of credit for the project from its primary lender, First National Bank of Gainesville, now known as Regions Bank (the “Bank”), and it requested $200,000 based in part on Scott’s bid of $111,992 plus approximately $55,200 for required engineering fees. The Bank issued a line of credit in the amount of $175,000, and the Resort signed a promissory note for this amount. Scott began work and was paid on two of three invoices he submitted. The Bank made the payments payable jointly to Scott and the Resort.

The cost of the project grew larger because of unforeseen developments, and the Resort sought an additional $63,879.24 from the Bank. The amount was based in part on Scott’s estimated cost to complete the project. The Bank agreed to extend the line of credit by the requested amount. There is a promissory note associated with the extension in the record dated January 10, 1996, and identified as “Note No. 2500,” but it is not signed by the Resort. Shortly after Scott submitted his third invoice for the final payment, certain other Resort creditors filed an involuntary bankruptcy petition naming the Resort as the debtor.

On February 16, 1996, the Bank assigned all its rights, title and interest as a creditor for the development, including the loans related to the dam project, to the Mamari Corporation. But the Bank agreed that it would remain responsible for funding the $63,879.24 line of credit. Paragraph 8 of the Mamari agreement provides:

Bank’s Commitment to Fund Draw Note: The Bank has committed to advance up to $63,879.24 to [the Resort] under that certain draw note no. 2500 from [the Resort] to the Bank dated January 10, 1996. The Bank hereby assures MAMARI that it will honor that commitment unless prevented from doing so by statute, court order or other rule of law.

Scott was not a party to this agreement.

On July 1, 1997, apparently after the bankruptcy was resolved, the Resort made a request to the Bank for a draw in the full amount of the second note. The request was supported in part by the final invoice from Scott, but also by other contractors’ invoices. The request stated that the contractors had been paid for their work, and it requested that payment be made directly to the Resort. In December 1997, promissory note no. 9001 was signed by the Resort in the amount of $63,879.24. The Bank disbursed a check in that amount payable to the Resort, but the Resort never paid Scott on his third invoice. Scott brought suit against Mamari and the Bank for payment of the final invoice, claiming to be a third-party beneficiary of both the promissory note between the Resort and the Bank and paragraph 8 of the Mamari agreement.

1. Scott contends the trial court erred in determining that he was not a third-party beneficiary to the two agreements. Intent to create a third-party beneficiary must be shown in the contract: “In order for a third party to have standing to enforce a contract ... it must clearly appear from the contract that it was intended for his benefit. The mere fact that he would benefit from performance of the agreement is not alone sufficient.” (Citations and punctuation omitted.) Miree v. United States, 242 Ga. 126, 135 (3) (249 SE2d 573) (1978); OCGA § 9-2-20 (b). “Unless such an intention is shown on the face of the contract, defendant is under no duty and consequently plaintiff acquires no right as the third party beneficiary.” Plantation Pipe Line Co. v. 3-D Excavators, 160 Ga. App. 756, 757 (287 SE2d 102) (1981). A contract is intended to benefit a third party when the promisor engages to the promisee to render some performance to a third person. Starrett v. Commercial Bank of Ga., 226 Ga. App. 598 (1) (486 SE2d 923) (1997).

As for the promissory notes, not one of the various notes is signed by the Bank, which, according to Scott, was bound to make loan disbursements to him. Rather, the notes are promises by the Resort to repay the Bank. They do not even purport to contain any promises by the Bank to do anything for the Resort, let alone Scott. There is no indication of any intent to benefit Scott in any of the notes, which is what Scott claimed. The only indication of intent is found in the original note, and it says that the purpose of the loan was to “provide for unbudgeted expenses.” Further, the fact that the Resort used Scott’s estimated cost to complete as a basis for the amount it sought in the loan extension did not create a third-party obligation for the Bank to issue the loan proceeds to Scott. It is commonplace to base a loan request on anticipated need. This fact alone does not create an obligation on the lender to disburse the loan to the party to whom the borrower intends to pay with the borrowed funds.

Scott contends that the fact that the first two loan disbursements were made jointly payable to him is evidence that the Bank intended that the loan agreement would benefit him. But, again, there is no indication of an intent to benefit Scott on the face of any note or loan agreement. Joint payments could have been made for any one of a number of reasons.

Finally, the fact that everyone knew that the loan was for the dam project does not mean that the contractors who were going to perform the work were intended beneficiaries of the loan agreement.

As for the Mamari agreement, Scott focuses on paragraph 8. It is true that, “Notwithstanding the ultimate purpose of [an] agreement,, individual contract provisions may be intended to benefit a stranger to the contract, thus creating a third-party beneficiary.” Starrett, 226 Ga. App. at 601 (1). But Scott is not mentioned in the Mamari agreement by name or otherwise. There is no limitation in the agreement on how the Resort could use the loan proceeds. The funds were not earmarked for use only by Scott. There is no promise in the agreement that the Bank would disburse the loan proceeds to Scott or jointly to Scott and the Resort. Thus, there is nothing in the agreement that “clearly indicates” the contract was intended to benefit Scott. See, e.g., Light, 191 Ga. App. at 817-818 (2) (loan guarantor not third-party beneficiary of agreement between borrower and lender delineating terms for advancing loan proceeds).

Rather, paragraph 8 of the Mamari agreement merely represents an agreement between Mamari and the Bank as to who would fund the loan which had already been entered into. Simply agreeing who would satisfy the obligation did not create a third-party beneficiary where none previously existed.

Scott was only an incidental beneficiary to the various loans and the Mamari agreement. The trial court correctly held that Scott was not a third-party beneficiary.

2. Scott also claims he is entitled to payment from the Bank and Mamari under the theories of quantum meruit and unjust enrichment.

OCGA § 9-2-7 provides: “Ordinarily, when one renders service or transfers property which is valuable to another, which the latter accepts, a promise is implied to pay the reasonable value thereof.” But the law will not imply a promise contrary to the intention of the parties. Smith Dev. v. Flood, 198 Ga. App. 817, 820-821 (403 SE2d 249) (1991). Scott entered into a contract with the Resort, not the Bank or Mamari. And he had no contact with the Bank or anyone sufficient to create an expectation of payment directly from the Bank for his work. He performed the work based on his express contract with the Resort, not based on any implied contract.

Scott’s claim for unjust enrichment also fails. “The concept of unjust enrichment in law is premised upon the principle that a party cannot induce, accept, or encourage another to furnish or render something of value to such party and avoid payment for the value received. . . .” Reidling v. Holcomb, 225 Ga. App. 229, 232 (2) (483 SE2d 624) (1997). There is no evidence that either the Bank or Mamari did anything to fall under this rule. Neither received the direct benefit of Scott’s labor. And any indirect benefit to the Bank’s collateral resulting from repair of the dam was only the natural byproduct of all work performed on a financed real estate project. Also, the Bank paid $63,879.24 to the Resort in direct connection with the dam project. The fact that this money did not find its way to Scott does not mean that the Bank or Mamari has been unjustly enriched.

Decided February 22, 2000.

Newman, Sapp & Davis, Michele L. Davis, for appellant.

Stewart, Melvin & Frost, J. Douglas Stewart, for appellees.

Scott either has or had remedies available against the Resort, the property (he filed a materialman’s lien), or possibly other parties not relevant here. But his claims against the Bank and Mamari were rightly dismissed.

Judgment affirmed.

Smith and Miller, JJ, concur.

       It should be noted that generally “[a] construction lender has no duty ‘to protect the subcontractors from the risks of doing business with its borrower . . . (or) to supervise the borrower’s disbursement of the advances and control the funds for the benefit of the subcontractors.’ [Cit.]” Light v. Equitable Mtg. Resources, 191 Ga. App. 816, 817 (2) (383 SE2d 142) (1989).


text:
    A99A1978.
    SMITH v. THE STATE.
    (530 SE2d 223)
   Miller, Judge.

Craig V. Smith was tried before a jury and found guilty of robbery, armed robbery, hijacking a motor vehicle, and aggravated assault. On direct appeal, he was granted a new trial due to an “illegally constituted jury.” At a hearing on January 26, 1999, Smith moved for discharge and acquittal under OCGA § 17-7-171 (b). The court twice orally denied Smith’s motion, once on January 26 and again on February 2. On February 5, he filed a notice of appeal from the January 26 denial. He later filed an “amended” notice of appeal from the court’s February 2 denial. But “[i]t is elementary that an oral order is not final nor appealable until and unless it is reduced to writing, signed by the judge, and filed with the clerk.” Because both notices of appeal are from unappealable oral orders, we dismiss the appeal in Case No. A99A1978 and remand the case to give the trial court the opportunity to enter a written order on Smith’s motion for discharge and acquittal within ten days of receipt of the remittitur.

Appeal dismissed and case remanded with direction.

Pope, P. J., and Smith, J., concur.

Decided February 22, 2000.

Johnson, Prioleau & Kenison, Theodore Johnson, for appellant.

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

        Smith v. State, 232 Ga. App. 458, 460-461 (1) (501 SE2d 622) (1998).

       (Citations omitted.) Sharp v. State, 183 Ga. App. 641, 642 (1) (360 SE2d 50) (1987); see OCGA § 5-6-31.