text:
    A99A2298.
    GLW INTERNATIONAL CORPORATION et al. v. YAO et al.
    (532 SE2d 151)
   Ruffin, Judge.

Jian Yin Yao and Zhaoqing Crafts & Arts Industry Company sued GLW International Corporation, China Crafts & Art, Inc., Li Wen and Robert Wen for fraud and misrepresentation, theft by deception or conversion, interference with contractual relations, breach of contract, and breach of fiduciary duty stemming from a failed joint venture between GLW and Zhaoqing Crafts. The defendants counterclaimed for breach of fiduciary duty, breach of contract, and conversion, among other claims. The jury awarded $30,000 to plaintiffs, and $7,250 to defendants. After offsetting the two verdicts, the court entered a final judgment in the amount of $22,500 in favor of plaintiffs. Defendants appeal. For reasons which follow, we affirm.

In 1992, Yao worked in Japan for Zhaoqing Crafts, a Chinese corporation which manufactured and exported rosewood furniture. After making inquiries with friends about moving to the United States, Yao was contacted by Li Wen, who had attended school with Yao in China and was then living in Atlanta. Li Wen and her husband Robert Wen owned GLW, which was in the business of importing goods from China. Ms. Wen told Yao she had previously helped four families come to the United States under an L-l visa. She explained to Yao that if he used an L-l visa to come to the United States, he could get his “green card” a year and a half later. Li Wen proposed establishing a joint venture between Zhaoqing Crafts and GLW. As part of the visa requirements, Yao would be employed by the joint venture.

The joint venture was organized as a Georgia corporation, China Crafts & Art, and was owned equally by GLW and Zhaoqing Crafts. GLW and Zhaoqing Crafts were each responsible for contributing $50,000 toward the initial capitalization of the joint venture. Li Wen asked Yao to transfer Zhaoqing Crafts’ capital contribution to GLW’s account. Yao transferred $50,000 in personal funds, on behalf of Zhaoqing Crafts, to GLW’s account. Although $49,995 was deposited in the GLW account, GLW eventually transferred only $43,000 into China Crafts’ account. The remainder of the money was spent on expenses related to a furniture show.

Documents that Li Wen faxed to Yao indicated that China Crafts would hire Yao and engage in active business. Under the organizational documents of the joint venture, Yao was vice president of China Crafts, Robert Wen was the president, and Li Wen was the secretary. Yao was to act as import manager, at an initial salary of $40,000 a year. Li Wen also asked Yao to secure shipment of a crate of goods from China before he left Japan.

Yao’s visa was approved on January 18, 1994. He arrived in Atlanta on April 23,1994, and met with Robert Wen the next day. Mr. Wen told Yao that if Yao wanted to stay with China Crafts and get Wen’s help in securing permanent residency, Yao must guarantee $300,000 in sales for the joint venture by arranging for $300,000 in goods to be delivered from China. Yao would be responsible for paying taxes on the $300,000 in goods whether they were actually sold or not, as well as taxes on his and Mr. Wen’s salary. This was the first time Yao had been informed of these additional requirements, but Robert Wen explained that if he had told Yao up front, Yao would not have come to the United States. A few days later, Robert Wen sent Yao a document stating that Yao would have to provide three months of his salary, in cash, to China Crafts if he wanted to remain employed by the company. Robert Wen told Yao that Yao could not work for China Crafts if he did not come forward with the money and that he would no longer be responsible for Yao’s continued residency. Robert Wen also demanded repayment of attorney fees for the visa application, and Yao provided a partial payment of $1,500 in travelers checks for that amount.

Following the conversations between Robert Wen and Yao, both Wens met with Yao, and Li Wen told Yao that his $50,000 contribution to China Crafts was a charge for getting a visa for Yao and his family and was not excessive. After the meeting with Robert and Li Wen, Yao did not return to work. Upon advice of counsel, he initiated the formation of a subsidiary of Zhaoqing Crafts so that he would not lose his resident status due to loss of employment. Yao worked at GLW’s offices for three days but was never compensated for his time.

Instead of cash, GLW contributed $50,000 in furniture to the joint venture. China Crafts then bought $33,000 in additional inventory from GLW. Although it controlled over $80,000 in inventory from 1993 to 1995, China Crafts made no sales to the public. China Crafts, beginning in January 1994, paid Robert Wen a salary of $3,800 a month. Even though China Crafts had no public sales, it entered into a sublease with GLW for $1,800 a month. GLW bought back some inventory from China Crafts, but GLW subsequently went bankrupt.

1. Initially, we address plaintiffs’ motion to dismiss the appeal. Defendants failed to file a separate enumeration of errors as required by then applicable Court of Appeals Rule 22. The enumeration of errors was, however, set forth in the brief. Rule 22 was amended effective December 23,1999, and no longer requires that the enumeration of errors be filed separately. We decline to dismiss the appeal because of defendants’ violation of then applicable Rule 22.

Plaintiffs also ask that the appeal be dismissed because the sequence of arguments in defendants’ brief does not follow the order of the enumeration of errors, nor is it numbered accordingly, as required by Court of Appeals Rule 27 (c) (1). It has been our practice, however, to consider an appellant’s enumeration of errors to the extent we can discern them even if the argument in the brief fails to follow the sequence in the enumeration of errors.

Plaintiffs also complain that defendants failed to follow Court of Appeals Rule 27 (a) (1), which requires that appellants, in part one of their brief, set forth a statement of the facts and proceedings necessary for the consideration of the errors complained of. Defendants’ brief contains a recitation of facts and references to the record and is sufficient to comply with Rule 27 (a) (1).

Finally, plaintiffs move to dismiss the appeal because the brief was unfairly extended by small type in violation of Court of Appeals Rule 1 (c). In particular, plaintiffs complain that defendants’ appellate brief contained type size which was ten percent smaller than allowed. Under Rule 1 (c) we may order inappropriately formatted documents to be redacted and recast. We did not issue such an order in this case, and we do not believe that plaintiffs have been prejudiced so as to warrant the harsh remedy of dismissal for failure by defendants to correctly format their appellate brief.

2. Plaintiffs maintain that defendants failed to preserve their claims of error regarding the trial court’s failure to grant a directed verdict. Defendants moved for a directed verdict at the conclusion of plaintiffs’ case but did not renew the motion at the end of the trial. Nor did defendants move for judgment notwithstanding the verdict. Therefore, the plaintiffs maintain, the trial court never ruled on the motion for directed verdict based on the entire trial record. We find this argument unpersuasive. OCGA § 9-11-50 (a) provides that “[a] motion for a directed verdict may be made at the close of the evidence offered by an opponent or at the close of the case.” There is no statutory requirement that a motion for directed verdict be renewed at the end of trial. Furthermore, OCGA § 5-6-36 (b) provides: “A motion for judgment notwithstanding the verdict need not be filed as a condition precedent to review upon appeal of an order or ruling of the trial court overruling a motion for directed verdict.”

3. In their first five enumerations of error, defendants claim that the trial court erred by failing to direct a verdict on Yao’s claims of fraud, misrepresentation, conversion, breach of fiduciary duty, and breach of contract. A trial court should grant a motion for directed verdict “[i]f there is no conflict in the evidence as to any material issue and the evidence introduced, with all reasonable deductions therefrom, shall demand a particular verdict.” When determining whether any conflict in the evidence exists, the trial court must construe the evidence most favorably to the party opposing the motion for directed verdict. The standard used to review the grant or denial of a directed verdict is the “any evidence” test. Applying this standard with respect to each of plaintiffs’ claims, we find no error.

(a) In order to prove fraud, Yao must show the following elements: (1) a false representation; (2) scienter; (3) intention to induce plaintiff to act or refrain from acting; (4) justifiable reliance by plaintiff; and (5) damage to plaintiff. With regard to the element of scienter, “[t]he gist. . . of an action for damages in tort based on the falsity of representations is that they must have involved actual moral guilt.”

Here, the claim of fraud is based on the misrepresentations made to Yao concerning the terms of the joint venture and Yao’s employment. Under the original terms of the joint venture proposed by the Wens, Yao and Zhaoqing Crafts would each contribute $50,000 to the capitalization of China Crafts, which would effectively be controlled by the Wens. Yao testified, however, that after he arrived in the United States, the Wens informed him that he could not work for China Crafts without a contribution of additional funds. According to Yao, Mr. Wen had refrained from informing him of this additional requirement before he traveled to the United States, because Yao would not otherwise have relocated. Yao also testified that Li Wen told him that she considered the $50,000 initial contribution to be a fee for arranging for Yao and his family to come to the United States, even though the funds were designated as a capital contribution. Moreover, after Yao left China Crafts, the Wens and GLW did not conduct any business through the joint venture but simply siphoned cash out of the company by entering into a sublease with GLW for space it did not need and by selling furniture from GLW to China Crafts. This evidence was sufficient to allow the jury to conclude that the Wens and GLW never intended to go forward with the joint venture on the terms initially presented to the plaintiffs. As there is evidence to support each element of fraud, the trial court did not err when it refused to direct a verdict on the issue of fraud.

(b) Conversion is the unauthorized assumption and exercise of the right of ownership over personal property belonging to another. In support of plaintiffs’ conversion claim, evidence shows the $50,000 capital contribution from Zhaoqing Crafts was deposited in GLW’s account, not China Crafts’, and only $43,000 was eventually transferred to China Crafts. The difference was applied by the Wens and GLW to support a furniture show. The evidence supports the jury’s verdict in favor of plaintiffs on the conversion claim.

(c) The Wens and China Crafts owed a fiduciary duty to Zhaoqing Crafts as a shareholder of China Crafts. It is well settled that corporate officers and directors have a fiduciary relationship to the corporation and its shareholders and must act in good faith. There is also a fiduciary relationship between the corporation and its stockholders. Here, the evidence supports a finding that the Wens and GLW, with the cooperation of China Crafts, siphoned off the capital of China Crafts for their personal benefit, for no legitimate business purpose, and to the detriment of Zhaoqing Crafts. “A fiduciary’s duty of good faith prohibits him from appropriating for himself the assets and property of the corporation.” The trial court did not err in refusing to direct a verdict on the claim of breach of fiduciary duty.

(d) Although defendants argue that the trial court erred by failing to direct a verdict on plaintiffs’ breach of contract claim, we need not address this issue because the jury found in favor of the defendants on that claim. It is therefore moot.

4. A verdict against defendant China Crafts may be authorized only for a breach of fiduciary duty. The verdict of the jury is sustainable on this count alone, however. From the record, it appears that damages awarded to plaintiffs were not allocated between the various theories of recovery nor considered separately as to each defendant. Given that the verdict against China Crafts is sustainable under the theory of breach of fiduciary duty, we will presume that the jury decided its verdict on that basis.

5. In their sixth enumeration of error, defendants claim that the trial court entered a judgment inconsistent with the verdict. They maintain that the jury awarded $30,000 to plaintiffs and defendants each on plaintiffs’ verdict form and that the final judgment should have been entered in favor of defendants in the amount of $7,250.

In response, plaintiffs argue that because no objection was made to the judgment below, defendants have no standing to raise this issue on appeal. Defendants maintain that because the judgment was erroneous as a matter of law, we may consider the question on appeal.

Pretermitting whether defendants have waived their right to object to the judgment, their arguments are based on writings made on the plaintiffs’ verdict actually returned by the jury, and this document was not made part of the record on appeal. We cannot address an argument dependent upon a document that is not in the record. The record reflects that the court orally interpreted the verdict and discussed it with the jury foreman. As reflected in the record, the jury verdict is consistent with the final judgment.

6. Defendants maintain that the trial court erred by allowing the use of the interpreter, Leusie Liang. Liang had no formal training and was a neighbor of Yao, although she testified that she knew him by reputation only. The selection of an interpreter, however, is within the sound discretion of the trial court. Furthermore, the defendants cannot show any harm from the use of this interpreter. It is apparent from the record that the Wens speak both English and Cantonese and could have objected — and at one point did object — to request a clarification if they were unhappy with the translation. The trial court did not err in allowing the interpreter.

Judgment affirmed.

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

Decided March 23, 2000.

Melvin L. Dansby, for appellants.

Gambrell & Stolz, Irwin W. Stolz, Jr., Seaton D. Purdom, Robert G. Brazier, for appellees.

       The attorney who prepared the corporate and immigration documentation testified that the L-l nonimmigration work visa allows international companies that are doing business in the United States to transfer executives or managers to the United States to work.

       See, e.g., Jarrett v. Butts, 190 Ga. App. 703, 704 (1) (379 SE2d 583) (1989).

       See Home Ins. Co. v. Wynn, 229 Ga. App. 220, 224 (6) (493 SE2d 622) (1997); In the Interest of C. W. S., 231 Ga. App. 444, 445 (1) (498 SE2d 813) (1998).

       OCGA § 9-11-50 (a).

        Southern R. Co. v. Lawson, 256 Ga. 798, 799 (1) (a) (353 SE2d 491) (1987).

        Skelton v. Skelton, 251 Ga. 631, 633 (4) (308 SE2d 838) (1983).

        Lykins v. Nationwide Mut. Ins. Co., 214 Ga. App. 577, 579 (2) (448 SE2d 716) (1994).

       (Citations and punctuation omitted.) Bennett v. Clark, 192 Ga. App. 698, 699 (1) (385 SE2d 780) (1989).

        Weldon v. Trust Co. Bank &c., 231 Ga. App. 458, 463-464 (4) (499 SE2d 393) (1999).

        Henderson v. KM Systems, 188 Ga. App. 893, 899 (3) (374 SE2d 550) (1988), overruled on other grounds by Cohen v. William Goldberg & Co., 262 Ga. 606, 611 (2) (423 SE2d 231) (1992).

        Frye v. Commonwealth Investment Co., 107 Ga. App. 739, 745 (3) (131 SE2d 569) (1963).

        Quinn v. Cardiovascular Physicians, P.C., 254 Ga. 216, 219 (5) (326 SE2d 460) (1985).

       There is no evidence to support a fraud or conversion claim against China Crafts. China Crafts was not in existence at the inception of the alleged fraud. Nor did China Crafts appear to be involved in converting Zhaoqing Crafts’ funds.

       See Evans v. Maiuro, 170 Ga. App. 672, 673 (318 SE2d 69) (1984).

       See Witty v. McNeal Agency, 239 Ga. App. 554, 559-560 (3) (521 SE2d 619) (1999).

       See Long v. Marion, 182 Ga. App. 361, 365 (5) (355 SE2d 711) (1987).

       See, e.g., Acker v. Jenkins, 178 Ga. App. 393, 394 (343 SE2d 160) (1986).

        Choi v. State, 269 Ga. 376, 377 (3) (497 SE2d 563) (1998).


source: Caselaw Access Project

author: Eldridge, Judge.

license: Public Domain

text:
    A00A0824.
    In the Interest of R. D., a child.
    (532 SE2d 146)
   Eldridge, Judge.

The father challenges the September 1999 termination of his parental rights. The Whitfield County Juvenile Court terminated his rights in an order that was both comprehensive and legally correct. After reviewing the record and the trial court’s order, this Court finds that there was sufficient clear and convincing evidence to support the termination. Therefore, we affirm.

Viewed in favor of upholding the termination, In the Interest of A. S. H., 239 Ga. App. 565, 568 (521 SE2d 604) (1999), the evidence showed that R. D. was born in 1990 to the father and C. B. In 1991, the Murray County Department of Family & Children Services (“Murray DFCS”) investigated allegations that R. D. had been abused; however, the abuser was never identified. Then, in 1993, Murray DFCS removed R. D. on the basis of a deprivation petition filed by his maternal grandparents.

R. D. remained in foster care until he was placed with the father in April 1997, even though the father had recently been expelled from a twenty-eight-day drug treatment program after four days on the suspicion that he was dealing drugs. Then, shortly after the father regained custody of R. D., the father was arrested for stealing two SK-47 assault rifles. He was released on probation.

In April 1998, the father attempted suicide by slashing his wrists while R. D. was sitting with him in his truck. According to the father, he spent two weeks in a psychiatric hospital following the suicide attempt. The Whitfield County Department of Family & Children Services (“Whitfield DFCS”) took custody of R. D. based upon the father’s suicide attempt, his history of drug use, and his previous criminal convictions. The trial court in this case took judicial notice of the records of the deprivation action which followed. The father did not appeal from the April 24, 1998 order that found R. D. to be deprived.

After R. D. was removed from the father’s custody, Whitfield DFCS compiled a case plan for reunification. According to the termination hearing testimony, the reunification plan required the father to become and remain emotionally stable; maintain meaningful contact with R. D.; pay $10 per week in child support; maintain stable employment; maintain a safe, stable home; and cooperate with Whitfield DFCS. The father’s failure to complete the reunification plan is undisputed. The father claimed that he visited R. D. twice immediately after Whitfield DFCS took custody but admitted that he did not visit or contact the child from that time until the September 1999 hearing. He admitted that he paid no child support from April 1998 until September 1999. He also failed to work or maintain a home and was living in a homeless shelter during the month preceding his January 1999 incarceration. Such incarceration resulted from a probation revocation action which followed his September 1998 arrest for committing a felony, i.e., shoplifting a laptop computer. Notably, the father admitted during the hearing that, after his release from prison in December 1999, he would be sent to a diversion center for a few months, then would serve four more years under house arrest.

A Citizens Review Panel periodically reviewed the father’s progress on the reunification plan and, in May 1999, recommended the termination of his parental rights due to his failure to complete the plan requirements. Whitfield DFCS filed the termination action on July 9, 1999. A guardian ad litem was appointed to represent R. D.’s interests and recommended termination of the father’s rights.

A hearing was conducted on September 13, 1999, during which the trial court heard testimony from the father; C. B.; several Murray and Whitfield County DFCS employees; and R. D.’s Court Appointed Special Advocate (“CASA”). After considering the records of R. D.’s prior deprivation action, DFCS and CASA reports, and the hearing testimony, the trial court concluded that there was sufficient clear and convincing evidence to support the termination of the father’s rights under OCGA § 15-11-81. The father appeals from the trial court’s order. Held:

In three enumerations, the father claims that there was insufficient clear and convincing evidence to support the termination of his parental rights. We disagree.

The standard of appellate review where a parent’s rights to [his] child have been severed is whether, after reviewing the evidence in the light most favorable to the appellee [DFCS], any rational trier of fact could have found by clear and convincing evidence that the natural parent’s rights to custody have been lost. The factfinding and weighing of evidence [are] to be done in the trial court under the clear and convincing evidence test. The reviewing court is to defer to the lower court in the area of factfinding and should affirm unless the appellate standard of review is not met.

(Citations omitted.) In the Interest of A. S. H., supra at 568. Under OCGA § 15-11-81 (a),

a juvenile court deciding whether to terminate a parent’s rights employs a two-prong test, first determining whether there is clear and convincing evidence of parental misconduct or inability. A finding of parental misconduct or inability must rest on clear and convincing evidence showing: 1) that the child is deprived; 2) that the cause of the deprivation is a lack of proper parental care or control; 3) that the cause of the deprivation is likely to continue or will not likely be remedied; and 4) that the continued deprivation is likely to cause physical, mental, emotional, or moral harm to the child. OCGA § 15-11-81 (b) (4) (A).

(Punctuation omitted.) In the Interest of J. M. B., 231 Ga. App. 875, 876 (501 SE2d 259) (1998). See also In the Interest of R. N., 224 Ga. App. 202, 203 (480 SE2d 243) (1997).

In determining whether the child is without proper parental care and control, the court shall consider, without being limited to, the following: (i) A medically verifiable deficiency of the parent’s physical, mental, or emotional health of such duration or nature as to render the parent unable to provide adequately for the physical, mental, emotional, or moral condition and needs of the child; (ii) Excessive use of or history of chronic unrehabilitated abuse of intoxicating liquors or narcotic or dangerous drugs or controlled substances . . . ; [or] (iii) Conviction 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) (i)-(iii). In addition, when the parent does not have custody of the child, the court may consider:

whether the parent without justifiable cause has failed significantly for a period of one year or longer prior to the filing of the petition for termination of parental rights: (i) To develop and maintain a parental bond with the child in a meaningful, supportive manner; (ii) To provide for the care and support of the child as required by law or judicial decree; and (iii) To comply with a court ordered plan designed to reunite the child with the parent or parents.

OCGA § 15-11-81 (b) (4) (C) (i)-(iii).

If the first prong is met, then the trial court must consider whether termination of parental rights is in the best interest of the child, after 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 the Interest of N. B., 239 Ga. App. 336, 337 (521 SE2d 47) (1999).

1. The father asserts that there was insufficient evidence of his parental misconduct or inability to justify termination under OCGA § 15-11-81. The trial court specifically found that the clear and convincing evidence of the father’s repeated incarcerations; his unjustifiable failure to develop and maintain a meaningful, supportive relationship with the child; and his unjustifiable failure to pay child support was sufficient to establish the father’s parental misconduct or inability. See OCGA § 15-11-81 (b) (4) (B) (iii), (C) (i), (ii).

Although the father claims that his incarceration prevented him from fulfilling the reunification plan requirements, such incarceration does not explain or excuse his failure to make any positive efforts toward such goals in the eight months preceding his incarceration. Further, he admitted that his incarceration did not prevent him from contacting R. D. through the mail but claims he was unable to do so because he did not have R. D.’s address. However, he never contacted Whitfield DFCS to get that information or to otherwise enlist their assistance in fulfilling his plan requirements. As such, we find no error in the trial court’s finding of the father’s present parental misconduct or inability.

2. In his second enumeration, the father contends that his April 1998 “mental collapse” was the primary cause of his inability to meet the program reunification goals. He claims that the State failed to demonstrate that his mental disability is likely to continue or will not be remedied and, therefore, that the trial court erred in terminating his parental rights. This assertion is without merit.

The father claims that he was fully capable of caring for R. D. prior to his “mental collapse.” He claims that he is now emotionally stable, thanks to several prescription medications that he has been taking during his incarceration. According to the father, as long as he remains on this medication, he will be able to care for R. D. Therefore, the father relies on this Court’s decision in In the Interest of C. G., 235 Ga. App. 23 (508 SE2d 246) (1998), for the proposition that the termination must be reversed because the State failed to present any evidence that the alleged primary cause of R. D.’s deprivation, i.e., the father’s mental illness, is likely to continue.

However, this case is distinguishable from In the Interest of C. G., supra, wherein the trial court determined that a mother’s mental disability rendered her incapable of caring for her child. Id. at 24. This Court found that the “crux of this case is the mother’s mental condition and that the other factors [as to her parental inability] arose from that condition.” Id. Since the State failed to present evidence that the condition was likely to continue, this Court ruled that there was insufficient clear and convincing evidence to support termination of her parental rights. Id. at 25.

In contrast, the trial court in this case specifically found clear and convincing evidence of the father’s misconduct which had nothing, whatsoever, to do with his “mental collapse.” These factors included his repeated felony convictions and resultant incarceration, as well as his unjustifiable failure to communicate with R. D. in a supportive parental manner, pay child support, or otherwise complete the reunification plan. See Division 1, supra; see also In the Interest of C. W. D., 232 Ga. App. 200, 204 (1) (501 SE2d 232) (1998) (evidence of past conduct may be used to demonstrate that deprivation is likely to continue); In the Interest of T. B. R., 224 Ga. App. 470, 473 (1) (b) (480 SE2d 901) (1997).

Further, even assuming that the father continues to take his medication while incarcerated, his newfound mental stability is untested in the real world. Although he promised the trial court that, once he is released, he would pursue counseling, get a job, find and maintain a home, pay child support, and fulfill all of his other reunification requirements, such empty promises fly in the face of past and present facts. This is particularly true when the father admits that he will be confined to house arrest for four years once he is finally released from the diversion center.

In fact, there is no evidence to indicate that the father is likely to be successful in fulfilling his ambitious — but unrealistic — promises. “The decision as to a child’s future must rest on more than positive promises which are contrary to negative past fact.” (Citation and punctuation omitted.) In the Interest of R. N., supra at 205 (2). This Court is unwilling to gamble R. D.’s safety and well-being on the mere possibility that the father will be able and willing to care for the child at some point in the future, when the overwhelming evidence suggests otherwise. In the Interest of C. W. D., supra at 204 (1); In the Interest of T B. R., supra at 476-477.

Decided March 23, 2000.

Jerry W. Moncus, for appellant.

Thurbert E. Baker, Attorney General, Dennis R. Dunn, Deputy Attorney General, William C. Joy, Senior Assistant Attorney General, Shalen A. Sgrosso, Assistant Attorney General, Sanders B. Deen, for appellee.

Based on the record before us, this Court affirms the trial court’s finding that there was clear and convincing evidence that R. D.’s deprivation, caused by the father’s parental misconduct or inability, is likely to continue or will not be remedied. See OCGA § 15-11-81 (b) (4) (A) (iii).

3. Finally, the father claims that termination is not in R. D.’s best interest. Again, we must disagree. “The same factors which show parental inability may also show that termination would be in the [child’s] best interest. [Cits.]” (Punctuation omitted.) In the Interest of A. S. H., supra at 571 (2). See also In the Interest of E. C., 225 Ga. App. 12, 18 (482 SE2d 522) (1997). As noted above, the father committed a felony while he had custody of R. D. and attempted suicide in the child’s presence. He also unjustifiably failed to communicate with or support the child for over a year.

Further, R. D. has been diagnosed with Attention Deficit Disorder, for which he takes the medication Ritalin. Hearing testimony showed that he was disruptive and “act[ed] out” when he came into DFCS custody in 1998. Even though R. D. has shown “remarkable progress” while in foster care, he still requires special considerations in school, a stable and structured home environment, and possibly additional counseling or other assistance in order to catch up with his peers.

After considering the entire record, this Court finds that there was sufficient clear and convincing evidence to support the trial court’s conclusion that termination of the father’s parental rights was in R. D.’s best interest.

Judgment affirmed.

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

       C. B.’s parental rights were also terminated in the same action, but she did not participate in this appeal.

       As such, the father is estopped from challenging the finding that the child is deprived under OCGA § 15-11-2 (8) (A). OCGA § 15-11-81 (b) (4) (A) (i); In the Interest of T. B. R., 224 Ga. App. 470, 473 (1) (a) (480 SE2d 901) (1997); In the Interest of R. N., 224 Ga. App. 202, 203 (480 SE2d 243) (1997).

       This Court notes, however, that such assertion is directly contradicted by the record. See Division 1, supra. The record demonstrated that R. D. was in foster care for years before the father was finally able to fulfill the Murray DFCS reunification plans in 1997. Then, almost as soon as he got custody of R. D., he committed a felony theft of two assault rifles. The father also had at least two failed attempts at drug treatment prior to his suicide attempt.


author: Barnes, Judge.

text:
    A99A2156.
    BRINSON v. THE STATE.
    (530 SE2d 798)
   Barnes, Judge.

Kermit Brinson, Jr. appeals his conviction of one count of child molestation in violation of OCGA § 16-6-4. He contends the trial court erred by: (1) denying his motions for mistrial made after three prosecution witnesses allegedly placed his character in issue, (2) charging the jury that the possible lesser included offenses were misdemeanors, and (3) denying his motion for a new trial. Brinson also contends the evidence was insufficient to sustain his conviction of child molestation and further contends the errors concerning the testimony that allegedly placed his character in issue were cumulative. We disagree and affirm.

Viewed in the light most favorable to the verdict, the evidence shows that on New Year’s Eve 1997, several adults, including Brinson, who was a family friend, the ten-year-old victim’s mother and stepfather, and her natural father, were attending a party at the home of the victim’s mother and stepfather. The victim was asleep in her bed when she was awakened to celebrate the New Year at midnight.

After the celebration, the victim returned to her room and went back to sleep. Later, she awoke to find someone standing over her with his hand between her legs,- rubbing her “private parts,” by which she meant her “vagina.” She identified Brinson as the person who rubbed her.

The victim told Brinson that she was sick and got out of bed. As she started to leave, Brinson grabbed her arm, but she pulled away and ran downstairs to her mother. She told her mother that she was sick and lay on the couch for two hours until her father took her upstairs. After her father asked her what was wrong, the victim told him what Brinson had done. The police were called, and the victim told them what had happened. Before the police arrived, the victim’s father and stepfather beat up Brinson.

Eventually, Brinson was tried and convicted of child molestation. He was sentenced to serve 20 years confinement.

1. In three enumerations of error Brinson contends the trial court erred by denying his motions for mistrial after three of the State’s witnesses allegedly put his character in issue improperly by testifying separately that Brinson (a) had been in prison, (b) was on probation, and (c) had kidnapped the third witness. On each occasion Brinson promptly moved for a mistrial, and the trial court denied the motions but gave curative instruction on the first two remarks, after which Brinson renewed his motions. The trial court denied the renewed motions.

Whether to grant a mistrial is within the sound discretion of the trial court, and its ruling will not be disturbed absent an abuse of discretion. Ladson v. State, 248 Ga. 470, 476 (7) (285 SE2d 508) (1981). We do not find that the trial court abused its discretion in this case.

These apparently inadvertent comments do not rise to the level of misconduct condemned in King v. State, 261 Ga. 534, 535 (407 SE2d 733) (1991). See Martin v. State, 193 Ga. App. 581, 584 (388 SE2d 420) (1989). In King, an experienced police officer, who was present in court while the trial judge and counsel agreed that he was not to testify that King had been in jail and was instructed by the prosecutor not to refer to King’s confinement, immediately testified that King had just been released from jail. In this case, the witnesses were the mother and the stepfather of this victim and the young child who was the victim of another sexual molestation by Brinson. They were not privy to discussions between counsel and the trial court about the scope of their testimony, and there is no indication that they were fully aware of all the ramifications of their testimony and the trial court’s ruling on what testimony about the similar transaction was permissible. Brinson had been previously charged with kidnapping and molesting the young victim who testified in this case, and as part of a plea bargain, he was allowed to plead guilty to kidnapping only. At the start of this trial, the trial court ruled that testimony about the molestation of the other young victim was permissible as a similar transaction, but no evidence concerning Brinson’s conviction for kidnapping would be allowed. No witness testified that Brinson was convicted of kidnapping. Although Brinson argues that the witnesses conspired to do so, we do not find from the context of the answers that the witnesses sought to intentionally prejudice the jury against Brinson.

Under the circumstances, we find no abuse of discretion in denying Brinson’s motions for mistrial and, hence, no error. Accordingly, we find all of Brinson’s enumerations of error concerning the testimony of these witnesses to be without merit.

2. Brinson contends the evidence was insufficient to sustain his conviction because of inconsistencies in the victim’s testimony about whether she was terrified and because the victim, based on conversations she had with her mother about the dangers of being molested, had a predisposition to believe that Brinson molested her. He alleges that the victim misconstrued an innocent act to be child molestation.

On appeal, the evidence must be viewed in the light most favorable to the verdict, the appellant no longer enjoys the presumption of innocence, and the appellate court determines the sufficiency of the evidence and does not weigh the evidence or judge the credibility of the witnesses. Grant v. State, 195 Ga. App. 463, 464 (1) (393 SE2d 737) (1990). Having reviewed the evidence in the light most favorable to the jury’s determination, we conclude that a rational trier of fact could have found Brinson guilty of child molestation beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Decided March 9, 2000

Reconsideration denied March 24, 2000.

Silvis & Ambrose, Douglas K. Silvis, Chris E. Ambrose, for appellant.

J. David Miller, District Attorney, Mark E. Mitchell, Assistant District Attorney, for appellee.

3. Based upon what he asserts was the cumulative effect of the alleged errors that prompted him to move for the mistrials, Brinson contends he is entitled to a new trial.

Because this state does not recognize the concept of cumulative error, it is incumbent upon the defendant to show error with regard to each point he raises. Each of the motions for mistrial that appellant made during the course of the trial has been addressed. None was erroneously denied.

(Citation and punctuation omitted.) Curtis v. State, 182 Ga. App. 899, 901 (3) (357 SE2d 602) (1987). We do not find persuasive Brinson’s argument that the circumstances of this case require a different result because the misconduct was allegedly part of a scheme by the mother and stepfather to bring this information to the attention of the jury.

4. Although Brinson now contends the trial court erred by instructing the jury that the lesser included offenses were misdemeanors, the transcript shows that when asked by the trial court whether he had objections to the charge, Brinson said that he had none. Therefore, any error was waived. When a trial court asks if there are objections to the charge, counsel must state his objections or reserve the right to object on motion for new trial or on appeal. Otherwise, waiver will result. Jackson v. State, 246 Ga. 459, 460 (271 SE2d 855) (1980). Moreover, any error in referring to the lesser included offenses was harmless. Freeman v. State, 214 Ga. App. 425, 426 (1) (448 SE2d 465) (1994); Cater v. State, 176 Ga. App. 388, 389 (336 SE2d 314) (1985).

Judgment affirmed.

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


author: Ruffin, Judge.

text:
    A99A1716, A99A1717.
    GARRETT v. WOMEN’S HEALTH CARE OF GWINNETT, P.C. et al.; and vice versa.
    (532 SE2d 164)
   Ruffin, Judge.

Dr. Veronica Garrett sued Dr. Cora Salvino and Women’s Health Care of Gwinnett, P.C. (WHCG) for breach of contract and fraud, alleging that defendants failed to properly calculate a bonus to which she was entitled under her employment contract. Dr. Garrett also sought attorney fees. Both parties moved for summary judgment, and the trial court granted summary judgment to Dr. Garrett against WHCG on the breach of contract claim. The trial court dismissed all claims against Dr. Salvino, individually, and granted summary judgment to WHCG on the fraud claim. In a separate order, the trial court denied Dr. Garrett’s claim for attorney fees under OCGA § 13-6-11. The following appeals ensued. For reasons that follow, we affirm in part and reverse in part.

To prevail on a motion for summary judgment, the movant must demonstrate that there are no genuine issues of material fact and that the evidence, viewed in the light most favorable to the nonmovant, warrants judgment as a matter of law. So viewed, the evidence shows that, in October 1994, Dr. Garrett went to work for WHCG, which is wholly owned by Dr. Salvino. Dr. Garrett and Dr. Salvino, as president of WHCG, signed a two-year employment contract that provided if Dr. Garrett did not become a co-owner of WHCG following her first year of employment, she would be entitled to receive a “production bonus” at the end of her second year. The contract specified that the production bonus would be calculated as follows:

(1) The Parties will ascertain, utilizing the Practice Certified Public Accountant, that portion of the gross profits for the second year of this contract which are attributable exclusively to Employee’s performance (“Gross Profits Calculation”).
(2) The Employee shall receive no production bonus in connection with the first Three Hundred Thousand Dollars ($300,000.00) (being twice Employee’s salary) of the Gross Profits Calculation.
(3) The Employee shall receive, as a Production Bonus, twenty-five percent (25%) of the Gross Profits Calculation in excess of $300,000.00 generated during the second year of her employment.

Dr. Garrett left WHCG after two years, and Dr. Salvino asked the corporate accountant to determine gross profit for the purpose of calculating Dr. Garrett’s production bonus. The accountant asked Dr. Salvino if she intended the calculation of gross profit to include a deduction for costs, and Dr. Salvino “said yes, that was her intent.” The accountant determined that the total revenue generated by Dr. Garrett was $503,892.28. He then deducted the expenses directly or indirectly related to the provision of services, which resulted in a gross profit of $326,017.06. The bonus was then calculated by subtracting $300,000 from the gross profit, leaving $26,017.06, which, when multiplied by 25 percent, resulted in a production bonus of $6,504.27.

Dr. Garrett disputed the method used for calculating her production bonus. According to Dr. Garrett, no expenses should have been deducted from total revenue in determining gross profit. Instead, she contends that “gross profit” is synonymous with “gross revenue.” Thus, she asserts that her actual bonus should have been $50,973.07.

Dr. Garrett sued Dr. Salvino and WHCG for breach of contract and fraud. After the parties filed cross-motions for summary judgment, the trial court ruled in favor of Dr. Garrett on the breach of contract claim, concluding that her production bonus should have been 25 percent of $203,892.28, or $50,973.07. But the trial court found that Dr. Salvino could not be held liable in her personal capacity and dismissed her as a party to the suit. The trial court also granted summary judgment to WHCG on Dr. Garrett’s fraud claim and claim for attorney fees.

In Case No. A99A1716, Dr. Garrett appeals, asserting that the trial court erred in (1) declining to assess attorney fees; and (2) dismissing Salvino as a party in her individual capacity. In Case No. A99A1717, WHCG appeals the trial court’s ruling on the breach of contract claim. As the two cases involve the same operative facts, we have consolidated them for this appeal.

Case No. A99A1716

1. Dr. Garrett contends that the trial court erred in failing either to hear evidence on the issue of assessed attorney fees or to incorporate an award of attorney fees under OCGA § 13-6-11 in its final order. We disagree.

Attorney fees may be assessed “where the plaintiff has specially pleaded and has made prayer therefor and where the defendant has acted in bad faith, has been stubbornly litigious, or has caused the plaintiff unnecessary trouble and expense.” “Questions concerning bad faith, stubborn litigiousness, and unnecessary trouble and expense, under OCGA § 13-6-11, are generally questions for the jury to decide.” But if there is no evidence of bad faith or stubborn litigiousness, a court should grant a defendant’s motion for summary judgment on a claim for attorney fees. Here, the absence of evidence that Dr. Salvino acted in bad faith or was stubbornly litigious supports the trial court’s ruling.

According to Dr. Garrett, the evidence that Dr. Salvino ordered the accountant to deduct the operating costs in calculating gross profit supports a finding that she acted in bad faith. But the contract did not define “gross profit,” and there was a bona fide controversy with respect to the method of calculation to be used. Such a bona fide controversy precludes a recovery of attorney fees. Moreover, the contract specified that the corporate accountant would calculate the production bonus, and the record shows that Dr. Salvino relied upon the accountant’s calculations. The accountant clearly believed that his method of calculation was appropriate, and there is no evidence that Dr. Salvino had reason to believe otherwise. Given the lack of evidence that Dr. Salvino “acted through ill will or furtive design with regard to the performance of the contract,” the trial court properly granted her motion for summary judgment as to OCGA § 13-6-11 attorney fees.

• To the extent that Dr. Garrett asserts that the trial court denied her an opportunity to present evidence which would support a finding of bad faith, this assertion presents no basis for reversal. Dr. Garrett provides no authority, argument, or citation to the record in support of her claim, and, thus, it is deemed abandoned.

2. Dr. Garrett also enumerates as error the trial court’s dismissal of Dr. Salvino as a defendant in her individual capacity. She argues that the protection of the “corporate veil” should be pierced to hold Dr. Salvino personally liable for the actions of WHCG. Again, we disagree.

“One who deals with a corporation as such an entity cannot, in the absence of fraud, deny the legality of the corporate existence for the purpose of holding the owner liable.” A corporation is a separate legal entity, and great caution should be exercised before disregarding this separateness. But Georgia courts will pierce the corporate veil “to remedy injustices which arise where a party has overextended [her] privilege in the use of a corporate entity in order to defeat justice, perpetrate fraud or to evade contractual or tort responsibility.” In order to justify the disregard of the corporate entity, there must be evidence that the corporate form has been abused. Here, the record is devoid of evidence that would warrant piercing the corporate veil.

In support of her contention, Dr. Garrett argues that Dr. Salvino abused the corporate form by ordering the accountant to deduct costs in an attempt to evade contractual liability. But this speculation on the part of Dr. Garrett is simply not supported by the record, which shows that the accountant determined the method of calculating Dr. Garrett’s bonus. This conduct simply does not rise to the level of conduct necessary to justify piercing the corporate veil. Moreover, although there is evidence that Dr. Salvino loaned the corporation money, there is no evidence that she disregarded the corporate form of WHCG or acted as though it was her alter ego.

Finally, Dr. Garrett asserts that Dr. Salvino recently closed her medical practice, which demonstrates that she is attempting to evade her contractual liability. But nothing in the record supports this assertion, and “[t]his court cannot consider the factual assertions of the parties appearing in briefs when such evidence does not appear on the record.”

Case No. A99A1717

3. In WHCG’s cross-appeal, it asserts that the trial court erred in construing the employment contract. Where the language of a contract is clear and unambiguous, the construction of that contract is a question of law. Contract construction involves three steps:

The trial court must first decide whether the contract language is ambiguous; if it is ambiguous, the trial court must then apply the applicable rules of construction; if after doing so the trial court determines that an ambiguity still remains, the jury must then resolve the ambiguity.

Decided March 24, 2000.

“A word or phrase is ambiguous when it is of uncertain meaning and may be fairly understood in more ways than one.” Here, the term “gross profit” is not defined within the contract. But, in construing contracts, dictionaries may be used to determine the meaning of a word or phrase.

In construing the employment contract, the trial court relied upon Black’s Law Dictionary, which defines the term “gross profit” as “the difference between sales and the cost of goods sold before allowance for operating expenses and income taxes.” Thus, the trial court concluded that “gross profit is ascertained before the deduction of expenses and taxes,” and it calculated Dr. Garrett’s bonus without deducting any costs or expenses.

In failing to deduct any costs or expenses, the trial court incorrectly equated “gross profit” with “gross earnings,” which are not synonymous. What the trial court failed to recognize is that the term “gross profit” does include a deduction for the cost of goods sold. Here, the medical practice provides for services rather than for goods. Nevertheless, there are costs associated with providing a service that should be deducted in determining gross profit. We cannot say, as a matter of law, what those costs are, and the record provides no guidance as to what costs the parties intended to deduct. Accordingly, an issue of fact remains, and the trial court erred in granting summary judgment on this issue.

Judgment affirmed in Case No. A99A1716. Judgment reversed in Case No. A99A1717.

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

Freeman, Mathis & Gary, Christopher E. Parker, for appellant.

McKinney & Salo, Jan McKinney, for appellees.

       OCGA § 9-11-56 (c); Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

       OCGA § 13-6-11.

       (Punctuation omitted.) American Med. Transport Group v. Glo-An, Inc., 235 Ga. App. 464, 467 (3) (509 SE2d 738) (1998).

        Tyler v. Lincoln, 236 Ga. App. 850, 853 (3) (513 SE2d 6) (1999).

        Williams Tile &c. Co. v. Ra-Lin & Assoc., 206 Ga. App. 750, 752 (5) (426 SE2d 598) (1992).

       Id.

       Court of Appeals Rule 27 (c) (2); Saffar v. Chrysler First Business Credit Corp., 215 Ga. App. 239, 240 (1) (450 SE2d 267) (1994).

       (Citations and punctuation omitted.) Gen. Ins. Svcs. v. Marcola, 231 Ga. App. 144, 149 (7) (497 SE2d 679) (1998).

        Mark Six Realty Assoc. v. Drake, 219 Ga. App. 57, 61 (2) (b) (463 SE2d 917) (1995).

       (Punctuation omitted.) J-Mart Jewelry Outlets v. Standard Design, 218 Ga. App. 459, 460 (1) (462 SE2d 406) (1995).

       Id.

        Marcola, supra.

        Clark v. Cauthen, 239 Ga. App. 226, 228 (2) (520 SE2d 477) (1999).

       (Punctuation omitted.) Hixson v. Hickson, 236 Ga. App. 894, 895 (1) (512 SE2d 648) (1999).

        Odem v. Pace Academy, 235 Ga. App. 648, 652 (1) (510 SE2d 326) (1998).

       (Citations and punctuation omitted.) Gram Corp. v. Wilkinson, 210 Ga. App. 680-681 (1) (437 SE2d 341) (1993).

        Akron Pest Control v. Radar Exterminating Co., 216 Ga. App. 495, 497 (1) (455 SE2d 601) (1995).

       Id.

       (6th ed. 1990).

       See Turner, Wood & Smith, Inc. v. Reed, 169 Ga. App. 213, 215 (311 SE2d 859) (1983) (in calculating insurance coverage, agent erred in considering “gross profit” rather than “gross earnings”).

       Black’s Law Dictionary, supra.

       See 17 CFR § 229.302 (a) (1) (federal securities and exchange provision that defines gross profit as “net sales less costs and expenses associated directly with or allocated to products sold or services rendered”).


text:
    A99A1821.
    In re ESTATE OF DAVIS.
    (532 SE2d 169)
   Ruffin, Judge.

In October 1997, Thomas Edward Davis, Jr. (“Ted Davis” or “decedent”) committed suicide after being accused of molesting two of his brother Jeffrey’s children. Pursuant to the terms of his will, his father, Thomas Edward Davis, Sr. (“Davis” or “Ed Davis”), was made executor of his estate and sole residual beneficiary. Jeffrey Davis and his wife Leigh, individually and on behalf of their two children, petitioned to remove Davis as executor because he had destroyed evidence relevant to their lawsuit against the estate. After a hearing, the probate court granted the petition, and Davis appeals. Because removal was within the probate court’s discretion, we affirm.

The relevant facts are as follows. At some point in mid-October 1997, Ted Davis learned that a warrant had been issued for his arrest on molestation charges. On October 22 or 23,1997, after learning of the charges, he committed suicide. On the afternoon of October 23, concerned because Ted had missed a scheduled appointment, Ed Davis went to Ted’s house and found the police already on the scene. The police informed him that they had found Ted’s body while attempting to serve an arrest warrant for sexual molestation. Ed Davis understood at the time that his son Jeffrey had instigated the warrant and that Ted was accused of molesting Jeffrey’s children. Detective Wiley, one of the investigating officers, told Davis that he had discovered some sexually explicit material in the house and that he suspected more such material would be found.

Davis, an attorney, testified that he had drafted Ted’s will, which made him executor of Ted’s estate. From the time of Ted’s death, Davis acted as if he were executor of the estate. Davis testified that, after the suicide, he searched his son’s house and discovered a large amount of sexually explicit material, including videotapes, magazines, and documents that appeared to have been printed off the Internet. Although he did not view the videotapes, Davis claimed that the material consisted of gay adult pornography and that he did not see anything that would constitute child pornography. Davis testified that he placed such material in a rented storage building and ultimately arranged for a trash contractor to collect and dispose of it. Davis claimed that Detective Wiley told him it was legal to dispose of the material, although he admitted that Wiley denied making such statement in his deposition.

Davis testified that at some point, he began searching through the files in Ted’s computer. Although Davis claimed that he was looking for financial information, he also testified that he was looking for child pornography. He stated that he had previously attended an attorney general’s seminar where he had learned about pedophilia. During his deposition, he said that he was specifically looking for child pornography and agreed that if he had found any, “we’d be in a different posture now” with respect to the molestation suit. At the removal hearing, he testified that, based on what he learned at the pedophilia seminar, he was looking for “a specific type” of child pornography, in particular pictures of the alleged victims.

Davis testified that, while searching through the computer, he came across several file folders containing sexually explicit material. He claimed that he did not, however, come across any pictures of the victims or anything that had to do with child pornography. He testified that he deleted the sexual material as he came across it. He knew, however, that deleted material could be retrieved, so he reformatted one of the drives on the computer.

In February 1998, appellees provided written notice to Davis that they were asserting a claim against the estate based on the alleged molestation. Appellees subsequently filed a civil suit against the estate in June 1998. During discovery, appellees had an expert examine the decedent’s computer. The expert was able to retrieve a large amount of deleted pornographic material. This material consisted primarily of pictures of young males apparently under the age of 18, as well as sexual stories regarding young boys. Some of the stories involved boys having sexual relations with their uncles and other relatives, and some involved boys with the same first names as the two victims. The expert testified that many of the files that were deleted were probably irretrievable.

The expert testified that one of the drives had been reformatted and that the directories on the root drive were time stamped with a date of May 21, 1998, indicating that the drive had been reformatted on that date. In his deposition testimony, Davis stated that he could not pinpoint when he had deleted the material from the computer, although he was “almost positive” it was before he received notice of appellees’ claim in February 1998. During his testimony at the removal hearing, Davis claimed that he deleted the material sometime in November or December 1997. He stated that his own computer was subsequently damaged by lightning in June 1998 and that he decided to use the decedent’s computer as a replacement. He claimed that he took both computers to a computer company to see if anything could be transferred from his own computer to the decedent’s and that he assumes the company reloaded the original software onto the decedent’s computer, which appellees’ expert indicated could have caused the root drive directories to be restamped. However, Davis did not introduce any documentary evidence to support this claim or provide any testimony from the computer company.

In April 1998, after receiving notice of appellees’ claims, Davis paid himself approximately $200,000 in executor fees. In November 1998, however, he informed appellees that he could not fund certain trusts established in the will for Jeffrey’s children, stating that he had to freeze all assets of the estate because of the tort claim.

Appellees filed a petition to remove Davis as executor on December 11, 1998, alleging that he had a conflict of interest and improperly destroyed evidence relevant to their claim against the estate. Following a hearing, the probate court granted the petition on March 22, 1999. The order stated that Davis’ letters testamentary would be revoked effective upon the qualification of his successor and invited all interested parties to petition for the appointment of a successor.

1. In his first enumeration of error, Davis claims the trial court abused its discretion in removing him as executor. For reasons discussed below, we disagree.

OCGA § 53-7-55, which became effective January 1, 1998, provides that,

[u]pon the petition of any person having an interest in the estate or whenever it appears to the probate court that good cause may exist to revoke the letters of a personal representative or impose other sanctions, the court shall cite the personal representative to answer to the charge. Upon investigation, the court may, in the court’s discretion . . . [r] evoke the personal representative’s letters.

This statute replaced OCGA § 53-7-148, which allowed the court to remove an executor under certain specified circumstances, including if “for any reason he is unfit for the trust reposed in him.” Cases construing the former statute make it clear that the probate court has broad discretion to remove an executor or administrator. Although the revised statute uses a “good cause” standard, it does not lessen the probate court’s discretion in removing an executor.

In its order, the probate court found that good cause existed for removal because Davis destroyed pornographic material found in the decedent’s home and on his computer. The court stated that such material would have had value as evidence in a civil lawsuit and that an independent fiduciary would not have destroyed the material. Thus, the court apparently concluded that Davis’ actions were motivated by a conflict of interest in the administration of the estate.

Davis does not contend in this enumeration that destruction of evidence relevant to a claim against the estate is an insufficient reason to remove an executor. We note, however, that an executor has a duty “to act in the best interests of all persons who are interested in the estate and with due regard for their respective rights.” An executor holds an estate for the purpose of paying debts and distributing assets, and “[t]he creditors, as well as legatees, have a right to have the estate legally administered by the executor.” Although it is the duty of an executor to defend tort claims brought against the estate, we recognize the potential for conflict where the executor is also the residual beneficiary under the will and thus stands to gain from defeat of the claim. If such an executor, who has control over estate property by virtue of his office, wrongfully destroys or attempts to destroy evidence that would tend to support an arguably valid claim against the estate, we do not believe that a probate court would abuse its discretion in finding that good cause existed for the executor’s removal.

Davis argues that he did not wilfully destroy evidence because he had no reason to anticipate the filing of a civil suit at the time he destroyed the pornographic material and deleted material from the computer. As discussed above, however, there was evidence that the computer was reformatted on May 21, 1998, about three months after appellees filed a written claim with the estate based on the alleged molestation. Although Davis claimed at the hearing that he had a computer company service the computer in June, he provided no evidence to support this assertion, and the probate court was not required to accept his testimony. Moreover, apart from the evidence of the reformatting date, the probate court could have concluded that Davis attempted to destroy the pornographic material in order to prevent its use in any proceeding against the estate. As an attorney, Davis could anticipate that a claim would be made against the estate based on the alleged molestation, particularly since appellees had already obtained an arrest warrant against the decedent. Indeed, Davis testified that his son Jeffrey had “never been hesitant about making claims for injury.” Davis was well aware of the relevance of child pornography in a molestation action and admitted that such evidence would place the case “in a different posture.” Although Davis claims that his intent in deleting the pornographic material was simply to “protect my family,” he did not merely delete the material but took the additional step of having the hard drive reformatted. Davis testified that he reformatted the computer because he knew that deleted material “would always be there unless you reformatted it.” The probate court could thus infer that Davis’ intent was not simply to avoid embarrassment by deleting the offensive material, but to ensure that the material could never be retrieved by anyone.

There were other factors the probate court could have considered in rejecting Davis’ claims of honest intent. For example, Davis testified that he did not come across anything he would consider child pornography, either on his son’s computer or elsewhere in the house. When the computer was examined by an expert, however, the expert retrieved a large amount of sexually explicit material involving minors that had been deleted. Davis testified in his deposition that he examined each folder in the computer, although he did not look at every file within each folder. Davis’ testimony at the removal hearing indicates that he went through the computer specifically to see whether there was anything to support appellees’ charges of molestation, in particular any pictures of the alleged victims. In light of the amount of child pornography retrieved by the expert, the probate court could have found Davis’ claim that he discovered only adult pornography unconvincing. Moreover, although Davis claimed that he had Detective Wiley’s permission to dispose of the pornographic material discovered at the house, Wiley denied giving any such permission. And the fact that Davis claims to have sought Wiley’s permission suggests that he was aware of the evidentiary value of such material in proving that the molestation occurred.

Davis also contends that, because appellees were able to retrieve a large amount of pornographic material, the estate was not harmed by his actions. We have rejected the proposition that, where a representative of an estate acts improperly, some identifiable loss to the estate must be shown before removal will be justified. Moreover, the computer expert testified that not all deleted material could be retrieved, so there is no way of knowing whether the irretrievable material, or any of the documents and tapes that were physically destroyed by Davis, would have provided more direct evidence of the decedent’s involvement in the alleged molestation.

Decided March 24, 2000.

Saveli & Williams, John C. Parker, Lisa J. Bucko, for appellant.

Long, Aldridge & Norman, Deborah Ebel, F. T. Davis, Jr., David E. Ralston, for appellees.

As discussed above, the relevant question in reviewing a removal order is whether the trial court had grounds to conclude that there was “good cause” for the removal. Where an executor destroys or attempts to destroy evidence in his possession that would help prove an arguably valid claim against the estate, we do not believe that the probate court abuses its discretion in removing the executor, particularly where, as here, the executor is the residual beneficiary under the will and thus stands to personally profit from defeat of the claim. Although we cannot say that the evidence was overwhelmingly in favor of removal, the probate court has broad discretion in such matters, and we cannot say that it abused its discretion in this case.

2. Under OCGA § 53-6-13 (3), the probate court is to appoint an administrator if the executor becomes disqualified to serve. In its order, the probate court stated that “[a]ny interested party may petition this Court for the appointment of a successor fiduciary in accordance with the applicable laws.” On appeal, Davis does not contend that it is improper to solicit nominees from interested parties but simply argues that appellees are not interested parties and should have no say in the selection of a successor. Nothing in the record, however, indicates that appellees have proposed a successor administrator or that an administrator has been named by the court. We decline Davis’ request to issue an advisory opinion as to how the probate court should select a successor administrator, as the proper time to consider such issue is after a successor has been appointed.

Judgment affirmed.

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

       To avoid confusion, Jeffrey and Leigh Davis and their children will be referred to collectively as appellees.

        See Nesmith v. Pierce, 226 Ga. App. 851, 852 (1) (487 SE2d 687) (1997); Lokey v. Lokey, 82 Ga. App. 171, 174-175 (3) (60 SE2d 569) (1950).

       OCGA § 53-7-1 (a). See also Home Ins. Co. v. Wynn, 229 Ga. App. 220, 222 (1) (493 SE2d 622) (1997).

       See Roe v. Pitts, 82 Ga. App. 770, 774 (62 SE2d 387) (1950).

        Bickerstaff v. Ellis, 204 Ga. 734, 736-737, hn. a (51 SE2d 821) (1949).

       See Davenport v. Idlett, 234 Ga. 864, 866 (218 SE2d 577) (1975).

       See Lokey, supra at 177 (4).

       See Nesmith, supra; Lokey, supra at 174-175 (3).

       See Vann v. Billingsley, 234 Ga. App. 803, 805-806 (508 SE2d 180) (1998) (declining to issue advisory opinion where issue not ripe for decision); Huff v. Valentine, 217 Ga. App. 310, 312 (2) (457 SE2d 249) (1995) (declining to issue advisory opinion as to scope of trial court’s discretion).


text:
    A99A1925.
    FULTON COUNTY BOARD OF TAX ASSESSORS v. VISITING NURSE HEALTH SYSTEM OF METROPOLITAN ATLANTA, INC.
    (532 SE2d 416)
   Ruffin, Judge.

Visiting Nurse Health System of Metropolitan Atlanta, Inc. (VNHS) is a nonprofit corporation that provides home health care services. After the Fulton County Board of Tax Assessors (the Board) assessed ad valorem taxes on certain tangible property owned by VNHS, the corporation appealed to the Board of Equalization, which ruled that the property was taxable. Following a de novo appeal to Fulton County Superior Court, VNHS moved for summary judgment, arguing that it was exempt from taxation as a purely public charitable institution. The trial court agreed and granted VNHS’s motion. In four enumerations of error, the Board appeals this ruling. For reasons that follow, we reverse.

To prevail on a motion for summary judgment, the movant must demonstrate that there are no genuine issues of material fact and that the evidence, viewed in the light most favorable to the nonmovant, warrants judgment as a matter of law. So viewed, the evidence demonstrates that VNHS is a nonprofit corporation that is afforded tax-exempt status by the Internal Revenue Service under § 501 (c) (3) of the Internal Revenue Code. In keeping with its nonprofit status, the directors of VNHS receive no compensation, and although VNHS has one member, it has no shareholders and makes no distributions. But VNHS does have approximately 900 paid employees, including its president, Kathleen Ziegler, who also serves on the board of directors. Ziegler receives a salary for her work as president but receives no compensation for her work as a director.

According to the annual report, in 1996, VNHS had $58 million in revenue, which included over $12 million in “uncompensated care.” The largest portion of its revenue came from Medicare at sixty-eight percent, followed by insurance companies at fifteen percent, and self-pay and “other” at nine percent. Its expenses that year were approximately $59 million, with the bulk of expenses (72 percent) going to salaries and benefits for its employees.

Although the annual report showed that VNHS suffered a loss in 1996, Ziegler admitted that, in some years, VNHS has made money. Ziegler testified that when that happens the money “goes back into services. [VNHS] may buy equipment!,] . . . may care for more patients, [or may] be able to provide for indigent care.” In 1996, VNHS provided approximately $3.4 million in indigent care.

VNHS houses its clinical and administrative staff at 133 Luckie Street. No medical care is rendered at this facility. The Board assessed ad valorem taxes on certain tangible property located at 133 Luckie Street, including computers, desks, and other furnishings. VNHS applied for a tax exemption. Following denials by both the Board of Tax Assessors and the Board of Equalization, VNHS appealed to superior court, arguing that it qualified for an exemption as a purely public charitable institution or, in the alternative, as a hospital under OCGA § 48-5-41 (a) (5) (A). VNHS moved for summary judgment, and the trial court granted the motion, finding that VNHS was a purely public charitable institution.

1. In its first enumeration of error, the Board contends that the trial court relied upon inadmissible evidence in granting summary judgment. Specifically, the Board asserts that the evidence that VNHS was afforded tax-exempt status by the state and federal governments was irrelevant and thus should have been excluded. We disagree.

Evidence is relevant if it logically tends to either prove or disprove a material fact. Here, the fact that VNHS is a nonprofit organization exempt from other taxes tends to prove that it is, in fact, a charitable institution. Although this fact is not conclusive in determining whether VNHS should be exempt from ad valorem taxation, the trial court did not err in considering this evidence.

2. The Board also contends that the trial court erred in holding that VNHS qualifies as a purely public charitable institution as a matter of law. We agree.

Initially, we note that “[c]laims for tax exemption are construed in favor of the state and against the taxpayer.” Under OCGA § 48-5-41 (a) (4), “[a]ll institutions of purely public charity” are exempt from ad valorem taxes. But this is a narrow exception. As the Supreme Court noted, “[t]here are infinite charities that deserve the plaudits of all mankind, but the [law] restricts tax exemption of institutions of charity to those and those only that are purely charity and also that are public charity.”

In York Rite Bodies of Freemasonry &c. v. Bd. of Equalization &c., the Supreme Court set forth the test for determining whethér an organization qualifies as a purely public charity. This test requires that: (1) the institution must be devoted entirely to charitable pursuits; (2) the charitable pursuits must be for the benefit of the public; and (3) the property must be used exclusively for those charitable pursuits. Here, the record is simply insufficient to establish that VNHS passes this test as a matter of law.

To survive the first prong of the York Rite test, VNHS must demonstrate that its sole purpose is to dispense charity. The fact that VNHS charges patients for services rendered suggests that it is not a charitable institution. Although an institution that charges people who are able to pay may still qualify as an institution of purely public charity, where the primary purpose of the institution is to service those patients who do pay, then it cannot be said to be purely charitable. Here, there is no question that VNHS serves a benevolent purpose in providing home health care to those patients who cannot afford such services. But the fact that the vast majority of VNHS’s patients pay for services either through insurance or Medicare mitigates against a finding that VNHS is entirely charitable in nature. Moreover, there is no evidence to demonstrate that the revenue generated in excess of expenses is devoted exclusively to charitable purposes.

Under the second prong of the York Rite test, the charitable pursuits must be for the benefit of the public. The amount of revenue generated by VNHS, however, also suggests that it is not a purely public charity. Although VNHS has no shareholders and does not distribute profits, if its main purpose is to generate revenue rather than serve the needy, then its principal beneficiaries could be considered its employees rather than the public.

Under the third prong of the York Rite test, the property at issue must be used exclusively for charitable pursuits. Here, there simply is no evidence to support the conclusion that VNHS uses all the property at issue for charitable pursuits. Given the dearth of evidence that VNHS qualifies as a purely public charity, issues of fact remain as to whether it is exempt from ad valorem taxes. Accordingly, the trial court erred in granting summary judgment on this basis.

Decided March 24, 2000.

Johnson, Freeman & Perkins-Hooker, Maureen M. McLeod, Thomas A. Cox, Jr., for appellant.

Kilpatrick Stockton, David M. Zacks, Burleigh L. Singleton, for appellee.

3. Because a grant of summary judgment will be affirmed where it is right for any reason, we must address whether VNHS qualifies for a tax exemption as a hospital under OCGA § 48-5-41 (a) (5) (A). We hold that it does not.

Taxation is the rule, and exemption is the exception to the rule. Accordingly, we strictly construe taxation statutes, and we will not find an exemption unless it is clear that the legislature intended such exemption.

Under OCGA § 48-5-41 (a) (5) (A), property owned by “nonprofit hospitals” that is used in connection with the hospital’s operation is exempt from ad valorem taxes. “Hospital” is defined as “an institution in which medical, surgical, or psychiatric care is provided to individuals who are sick, injured, diseased, mentally ill, or crippled.” VNHS asserts that it is exempt from ad valorem taxes as a nonprofit hospital because it provides medical services to the sick or injured. A home health care organization, however, is not a hospital any more than a group of doctors is a hospital. According to the plain language of the statute, the hospital is the institution in which care is rendered. With home health care, there is no single location or “institution” in which care is rendered. Although home health organizations do provide some of the same services as a hospital, until the legislature clearly extends the exemption to such entities, we are constrained by the statute to find that no such exemption exists.

Judgment reversed.

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

       OCGA § 9-11-56 (c); Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

       The annual report is actually the report for Visiting Nurse Health System, the parent company of VNHS.

       The remaining expenses were broken down as follows: ten percent for services, supplies and transportation; six percent for depreciation and interest; five percent for administrative and general expenses; four percent for occupancy; and three percent for “other.”

       The Board also contends that the trial court relied upon matters that were not contained in the record. As the Board neither enumerated this as error nor addressed this contention in its argument, the issue is deemed abandoned pursuant to Court of Appeals Rule 27 (c). See Bradshaw v. Byrd, 235 Ga. App. 25, 26 (1) (508 SE2d 433) (1998).

        Cook v. State, 232 Ga. App. 796, 797 (1) (503 SE2d 40) (1998).

       See York Rite Bodies of Freemasonry &c. v. Bd. of Equalization &c., 261 Ga. 558-559 (2) (a) (408 SE2d 699) (1991) (nonprofit status is a factor for consideration).

       Id.

        Annandale at Suwanee v. Gwinnett County Bd. of Tax Assessors, 242 Ga. 241 (248 SE2d 640) (1978).

       (Punctuation omitted.) Ga. Osteopathic Hosp. v. Alford, 217 Ga. 663, 667 (124 SE2d 402) (1962).

       Supra.

       See id. at 558 (2).

        Institute of Nuclear Power Operations v. Cobb County Bd. of Tax Assessors, 236 Ga. App. 48, 53 (3) (510 SE2d 844) (1999).

        Chatham County Bd. of Tax Assessors v. Southside Communities Fire Protection, 217 Ga. App. 361, 364 (457 SE2d 267) (1995).

        Annandale, supra.

       See Alford, supra at 668.

       See Annandale, supra.

        Porquez v. Washington, 268 Ga. 649, 652 (3) (492 SE2d 665) (1997).

        Zach, Inc. v. Fulton County, 235 Ga. App. 478, 480 (2) (509 SE2d 746) (1998).

       Id.

       OCGA § 48-5-40 (4).


author: Smith, Judge.

text:
    A99A2054.
    In the Interest of E. D. F., a child.
    (532 SE2d 424)
   Smith, Judge.

After a hearing, E. D. E, a minor, was adjudicated delinquent upon a finding that he committed three designated felony acts which, if committed by an adult, would have been rape, statutory rape, and child molestation. On appeal, he enumerates five errors, three of which challenge the sufficiency of the evidence pertaining to the three designated felony acts. In the remaining two enumerations, he contends the juvenile court erred in failing to provide a court reporter for the hearing and sentencing phases of the case and in failing to make sufficient written findings on each of the five elements set forth in OCGA § 15-11-37 (c). We find that the evidence at trial was sufficient to support the juvenile court’s finding of delinquency and that the recordation of the hearing was sufficient. Because we agree with E. D. F. that one of the required written findings is insufficient, however, we vacate those findings and remand this case to the juvenile court.

1. We first consider E. D. F.’s contentions regarding the sufficiency of the evidence. When a juvenile is charged with offenses that would constitute crimes if committed by an adult, the standard of proof in the lower court is “beyond a reasonable doubt.” (Punctuation omitted.) In the Interest of B. J. G., 234 Ga. App. 285 (1) (506 SE2d 449) (1998). Any conflicts in the evidence must be resolved by the trier of fact, which in this case was the juvenile court judge. And on appeal, this court must view the evidence in the light most favorable to the findings and judgment of the juvenile court. Id.

The evidence presented at the hearing showed that the victim, a ten-year-old girl, awakened her mother in the middle of one night and complained that E. D. E, who was living with her family, “tried to mess with” her. The victim’s mother called her sister, a registered nurse, who examined the victim. The victim’s aunt found the victim’s vaginal area “a little red but not much irritated.” Although she could not tell positively, it appeared to her that the victim’s hymen was not intact; she saw no blood, however, and upon questioning, the victim denied that her clothing had been removed. The aunt thought it was probable that no sexual relations had taken place, but she and the victim’s mother insisted that E. D. F. move out of their home.

The authorities were called only after the victim revealed the incident in her school journal. A school counselor testified that the victim wrote in her journal that E. D. F. raped her. When the counselor questioned the victim, the victim told her that she was lying face down on her bed and E. D. F. forced her to turn over and “put this thing in her,” pointing to her vaginal area. The counselor notified the Department of Family & Children Services (DFACS), and the case was reported to the Georgia Bureau of Investigation (GBI).

GBI Agent Scott Whitley was called in by the local authorities. He testified that he interviewed the victim’s mother and aunt, who assumed that no penetration had taken place. He also interviewed the victim, who told him that she had awakened face down with her clothes on and that E. D. F. was standing over her pulling up his pants. Her vagina was burning, and she went to the bathroom and cleaned up. Whitley then interviewed E. D. F, with his mother’s permission, and E. D. F made a statement admitting having sexual intercourse with the victim.

When viewed in a light most favorable to support the juvenile court’s judgment, this evidence was sufficient to enable any rational trier of fact to conclude beyond a reasonable doubt that E. D. F. committed acts which, if committed by an adult, would have constituted the designated felonies of rape, statutory rape, and child molestation. The judgment of the juvenile court is amply supported.

2. E. D. F. contends the juvenile court erred in failing to provide a court reporter. He argues that prior to the hearing, he requested complete recordation, and although the juvenile court hearing was recorded on a tape recorder, certain “important and pertinent portions” of the proceedings were not recorded because the tape malfunctioned. We find ho merit in this contention.

OCGA § 15-11-28 (b) permits the recordation of juvenile court proceedings by “stenographic notes or by electronic, mechanical, or other appropriate means.” Clearly, a tape recorder was a permissible means of recordation. Moreover, E. D. F. did not object to the use of a tape recorder in juvenile court, and issues not raised below may not be asserted for the first time on appeal. In the Interest of C. W., 227 Ga. App. 763, 767-768 (3) (490 SE2d 442) (1997). The juvenile court judge certified that he had read the transcript and exhibits, and it was “a true, correct, and substantially complete transcription” of the hearing, although some of the disposition testimony could not be transcribed because the tape ran out. The defense attorney and the prosecutor also signed this certification. This was sufficient.

3. OCGA § 15-11-37 (b) requires that when a juvenile is found to have committed a designated felony act, the order of disposition must include a finding based upon a preponderance of the evidence as to whether the juvenile requires restrictive custody. In connection with this finding, the juvenile court must make specific written findings of fact as to each of the elements set forth in OCGA § 15-11-37 (c). These elements are:

(1) The needs and best interests of the juvenile; (2) The record and background of the juvenile; (3) The nature and circumstances of the offense, including whether any injury involved was inflicted by the juvenile or another participant; (4) The need for protection of the community; and (5) The age and physical condition of the victim.

OCGA § 15-11-37 (c). This specific statutory scheme was made explicit by the General Assembly

to ensure that a determination as to restrictive custody, regarding a particular juvenile, would not be accomplished in an arbitrary manner, but only with fundamental fairness after the required statutory findings had been made and duly considered by the court. Moreover, our Supreme Court has held [that] an appellate court cannot condone a violation of the statutory scheme set up by our legislature.

(Citations and punctuation omitted.) In the Interest of C. T., 197 Ga. App. 300, 303 (398 SE2d 286) (1990).

Here, the juvenile court entered a written order purporting to cover all five required findings. We must agree with E. D. F., however, that although the juvenile court listed all five required factors, the finding entered by the court under the caption “[t]he needs and best interests of the juvenile” simply does not address E. D. F.’s “needs” or “best interests.” Under that heading, the juvenile court found that “[s]aid youth’s actions cause him to be a risk to others.” While we could agree with the finding, it is more a statement regarding “[t]he need for protection of the community” rather than addressed to E. D. F.’s needs or best interest. Although we have recognized that “[t]he extent and depth of analysis to which each of these ‘elements’ must be subjected is in large measure within the sound discretion of the court,” we held that “each of these ‘elements’ must be specifically addressed in writing.” In the Interest of C. T., supra at 303. The juvenile court’s findings as to each element serve as “a meaningful legal road map,” enabling the juvenile court to exercise its discretion fairly and also help this court perform an intelligent review. Id.

Four of the required findings serve these purposes admirably. But because the order contains no cogent or relevant finding as to the element “the needs and best interests of the juvenile,” we do not know whether the juvenile court actually considered the needs and best interest of E. D. F. We therefore must vacate the juvenile court’s judgment and remand this case to the juvenile court for compliance with the statutory requirement that the court consider the needs and the best interest of E. D. F. and enter appropriate written findings addressing this element, after which an appropriate order of disposition may be entered. See generally In the Interest of A. Q. H., 239 Ga. App. 865 (522 SE2d 264) (1999).

Decided March 24, 2000.

Charles J. Steedley, for appellant.

Robert B. Ellis, Jr., District Attorney, Timothy L. Eidson, Assistant District Attorney, for appellee.

Judgment vacated and case remanded with direction.

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