text:
    A98A2401.
    CARTER v. THE STATE.
    (510 SE2d 539)
   Blackburn, Judge.

Troy Lee Carter appeals his conviction of rape contending (1) that the evidence was insufficient to support his conviction and (2) that the trial court erred in admitting his verbal statement. We affirm.

1. “On appeal the evidence must be viewed in the light most favorable to support the verdict, and [Carter] no longer enjoys a presumption of innocence; moreover, an appellate court determines evidence sufficiency and does not weigh the evidence or determine witness credibility. The standard for reviewing a denial of a motion for a directed verdict of acquittal is whether under the rule of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979), the evidence was sufficient for a rational trier of fact to find beyond a reasonable doubt that the defendant was guilty of the charged offense. Moreover, the test established in Jackson is the proper test for us to use when the sufficiency of the evidence is challenged, whether the challenge arises from the overruling of a motion for directed verdict or the overruling of a motion for new trial based upon alleged insufficiency of the evidence.” (Punctuation omitted.) Redd v. State, 232 Ga. App. 666 (1) (502 SE2d 467) (1998).

So viewing the evidence, it reveals that the victim was talking to the defendant’s father on the porch of defendant’s father’s house when she went inside to get something to drink. Inside the house, the defendant asked the victim if she “wanted to do it,” and she responded that she did not because she was a married woman. The defendant then grabbed the victim’s arm and forced her into his bedroom where he made her lie down on the bed. He put his elbow across her throat while he raped her. The defendant told the victim, “don’t tell anybody. This is called rape.” After his arrest, the defendant wrote a statement denying that the victim entered his house. However, he later made an oral statement to the police that he had sex with the victim but it was not rape.

Decided November 12, 1998.

Juwayn N. Haddad, for appellant.

Michael H. Crawford, District Attorney, Earnest J. McCollum, Assistant District Attorney, for appellee.

Under the standard set forth in Jackson v. Virginia, supra, we conclude that a rational trier of fact could have found Carter guilty beyond a reasonable doubt of rape.

2. Carter contends that the trial court erred in admitting the oral statement he made to police in which he admitted having sex with the victim. Carter argues that he was not given his Miranda warnings and that his statement was involuntary. However, our review of the transcript reveals that Carter failed to preserve this issue for appeal because he failed to object when two different State witnesses testified as to the contents of his statement. See Jacobson v. State, 201 Ga. App. 749, 751 (2) (b) (412 SE2d 859) (1991). “Moreover, [after the admission of such testimony], the court conducted a Jackson-Denno hearing, which produced evidence which authorized the finding that, considering the nine factors enumerated in Marshall v. State, 248 Ga. 227 (3) (282 SE2d 301) (1981), the statements were made knowingly, intelligently, and voluntarily.” (Punctuation omitted.) Stowers v. State, 205 Ga. App. 518, 520 (422 SE2d 870) (1992).

Judgment affirmed.

McMurray, P. J., and Eldridge, J., concur.


source: Caselaw Access Project

author: Johnson, Presiding Judge.

license: Public Domain

text:
    A98A1708.
    LOFTON v. HERITAGE REALTY COMPANY et al.
    (508 SE2d 700)
   Johnson, Presiding Judge.

After Wanda Faye Lofton’s daughter, Brittany, drowned in a swimming pool at Tara Apartments, Lofton filed a wrongful death action against Heritage Realty Company et al. and the undisclosed owners of Tara Apartments (hereinafter collectively “Heritage”). Lofton appeals from the grant of summary judgment to Heritage.

The evidence viewed in favor of Lofton is as follows: Brittany, age four, lived in an apartment complex next door to Tara Apartments. On the day of the incident, she was allowed to play outside. Lofton was taking care of a younger child, but checked on Brittany approximately 15 to 20 minutes before the incident. Brittany and her four-year-old cousin walked over to Tara Apartments. She did not have permission to do this and had never before wandered from her own apartment area.

Lofton alleges that Brittany could not swim, was drowned when she entered the pool area “through an unsecured gate and fenced area surrounding the pool,” and apparently fell into the pool while attempting to retrieve a ball. Although it was October, the apartment swimming pool was still open. A “no trespassing” sign was posted by the primary gate of the pool to no avail since Brittany could not read.

The apartment manager was aware that teenage children occasionally trespassed into the pool area. While none of the apartment’s residents had small children of Brittany’s age, some of their guests were children. The apartment manager also had heard children’s voices coming from the apartment complex next door.

Although an independent contractor inspected the pool weekly, the manager did not know when it had last been inspected before the incident. The pool had three gates. Locks had been installed on all three gates to prevent any unauthorized access to the pool. Only two of the gates were locked at the time of the incident. The third gate, the primary entryway, had a latch, but it was unlocked so that sunbathers could use the pool.

In the manager’s opinion, this primary gate could not be opened by children under five years of age because the latch was on the inside of the gate. Although the evidence is conflicting as to whether the latch was working properly, the manager does not know the condition of the latch on the day of the incident. The investigating officer testified that the latch was not working properly on the day of the incident, and he believed the gate could have been pushed open. Though he also testified that a small child might not be able to get the gate open, he did not remember the exact condition of the latch or gate. For purposes of this appeal, we must assume the latch was not properly working, which is consistent with the testimony of the investigating officer.

The manager did not know whether any safeguard existed to warn young children who could not read not to enter the pool area or which would prevent them from doing so. The manager knew that a section of the pool fence had an opening at the bottom which was large enough for a small child to crawl under. After Brittany drowned, a maintenance man for the apartments told the investigating officer that the primary gate should have had a lock on it, and he put one on it in the officer’s presence. There was no lifeguard or other attendant at the pool.

Lofton contends the trial court erred in granting the defendants’ motion for summary judgment because a genuine issue of material fact exists whether the defendants failed to exercise reasonable care to protect children from the dangerous condition on the property. We agree.

1. The applicable summary judgment standard is that of Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991). In ruling on a motion for summary judgment, the opposing party should be given the benefit of all reasonable doubt, and the court should construe the evidence and all inferences and conclusions arising therefrom most favorably toward the party opposing the motion. Moore v. Goldome Credit Corp., 187 Ga. App. 594, 595-596 (370 SE2d 843) (1988). Opinion evidence can preclude, but not support, a grant of summary judgment. McGonagil v. Treadway, 216 Ga. App. 850, 853 (1) (456 SE2d 260) (1995).

2. A person’s status as a trespasser, licensee or invitee is not determined by his age or by his physical or mental capacity. Gregory v. Johnson, 249 Ga. 151, 153 (289 SE2d 232) (1982). Brittany trespassed onto the swimming pool area of Tara Apartments.

(a) The first issue to be resolved is the scope of the legal duty which Heritage owed to children who were trespassing in the swimming pool area. Over the years, the legal fiction of attractive nuisance has shifted to traditional negligence concepts, including reasonable foreseeability of harm. Gregory, supra at 154. The possessor of land is not an insurer of the safety of others. Essentially, “[t]he duty imposed is to exercise reasonable care to prevent foreseeable injury, not to protect against any injury.” (Emphasis in original.) Id. at 155.

A swimming pool generally will be classified as an artificial condition upon the land. Pursuant to the five-prong test of Gregory, supra, a possessor of land is subject to liability for physical harm caused to a trespassing child by such an artificial condition if: (i) the possessor knows or has reason to know that children are likely to trespass on the place where the artificial condition exists; (ii) the possessor knows or has reason to know or realizes or should realize that the condition will involve an unreasonable risk of death or serious bodily harm to a trespassing child; (iii) the child because of his or her youth does not discover the condition or realize the risk involved in interfering with it or coming within the area made dangerous by it; (iv) the utility to the possessor of maintaining the condition and the burden of eliminating the danger are slight as compared with the risk to any children involved; and (v) the possessor fails to exercise reasonable care to eliminate the danger or otherwise to protect the children. Id. at 154.

(b) Heritage primarily argues that the evidence does not create a genuine issue of material fact as to the first and fifth elements of the Gregory decision and as to the issue of foreseeability. We will address the five elements of the Gregory test in order.

(i) Construing all inferences and conclusions most favorably to Lofton as we are required to do, we find that a genuine issue of material fact exists for jury resolution as to whether Heritage knew or had reason to know that children were likely to trespass in the pool area. This is not a situation involving a pool in the yard of a single-family dwelling. This pool was open to the residents who were known to have children as guests. Teenagers had been observed trespassing at the pool. Other children were known to be present in a neighboring apartment complex because their voices could be heard by Tara Apartments’ manager. The pool had been enclosed by a fence apparently to prevent unauthorized entry to the pool area.

(ii) In Wallace v. Boys Club of Albany, 211 Ga. App. 534, 537 (439 SE2d 746) (1993), a case involving the negligent supervision of a child who, by some unknown route, wandered off the Club’s premises and was molested, a majority of this Court held: “Perhaps no child has ever been struck by a car on the street near defendant’s premises or drowned in the nearby swimming pool, but these dangers are so obviously foreseeable that an unforeseeability argument could not reasonably be made concerning these dangers to an unsupervised child.” Although the facts differ, this principle aptly applies to this case. No rational argument can be advanced that, as a matter of law, Heritage could not reasonably foresee the likelihood that young children would trespass into the pool area. A swimming pool poses a clear danger to a child of tender years, particularly a young child who cannot swim and who lacks an appreciation of the nature of the danger.

(iii) We cannot find that as a matter of law, Brittany, a child of tender years who could not swim and who apparently had never before visited the swimming pool, realized and appreciated the risk which she was encountering at the pool.

(iv) We need not analyze in detail whether the utility of the swimming pool and cost of rendering it safe substantially outweighed the risk of harm it posed to children. It appears that the installation of a gate latch which worked and modification of the fence so that it was secure would have eliminated the only deficiencies apparent in the fence and gate. Whether utility and cost outweighed the risk is an issue for the jury.

(v) A jury issue also exists regarding the final element of Gregory. There are only four ways that Brittany could possibly have gained access to the pool. First, she may have climbed over a five-foot wooden fence — a conclusion too unreasonable to warrant discussion. Second, she may have crawled under the fence. Third, she may have walked through the primary gate because it had been left open. Finally, she may have pushed open the primary gate because it had a defective latch. How she gained access to the pool is an issue for the jury.

Decided October 29, 1998

Reconsideration denied November 13, 1998

Daryl V. Yokely, for appellant.

Warren C. Grice, for appellees.

A possessor or owner of land generally will meet his duty to exercise reasonable care by erecting a fence or other enclosure around a swimming pool. Knutzen v. O’Leary, 210 Ga. App. 590, 592 (2) (437 SE2d 347) (1993). However, the primary gate to this pool was not locked, and we must assume that it had a defective latch. A portion of the fence was knowingly maintained with an opening at the bottom big enough to allow a child of Brittany’s size to enter. We cannot find, as a matter of law, that Heritage fulfilled its duty to take reasonable precautions to protect trespassing children from the inherent danger created by the swimming pool.

The facts of this case are distinguishable from Bowers v. Grizzle, 214 Ga. App. 718 (448 SE2d 759) (1994), and Knutzen, supra, which involved drownings at swimming pools of single-family homes and did not involve a fence erected and knowingly maintained with an opening under it through which a young child could crawl.

Except where evidence is so clear and palpable that a jury can draw but one conclusion, questions of negligence, foreseeability, proximate cause and related issues should be presented to the jury. Wade v. Mitchell, 206 Ga. App. 265, 268 (4) (424 SE2d 810) (1992); see also Thompson v. Crownover, 259 Ga. 126, 129 (5) (381 SE2d 283) (1989). The evidence in this case is not clear and palpable, and a jury should decide the genuine issues of material fact. Compare Gregory, supra.

Judgment reversed.

Smith, J, and Senior Appellate Judge Harold R. Banke concur.


author: Blackburn, Judge.

text:
    A98A2099.
    DILL v. THE STATE.
    (508 SE2d 739)
   Blackburn, Judge.

Following a jury trial, John R. Dill appeals his conviction of driving under the influence of alcohol, contending: that the trial court erred (1) by denying his motion for a directed verdict of acquittal; (2) by denying his request to charge that a defendant has certain rights to refuse a breathalyzer test; and (3) by permitting a witness whose name was misspelled on the witness list to testify. For the reasons set forth below, we affirm.

“On appeal the evidence must be viewed in the light most favorable to support the verdict, and [Dill] no longer enjoys a presumption of innocence; moreover, an appellate court determines evidence sufficiency and does not weigh the evidence or determine witness credibility. The standard for reviewing a denial of a motion for a directed verdict of acquittal is whether under the rule of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979), the evidence was sufficient for a rational trier of fact to find beyond a reasonable doubt that the defendant was guilty of the charged offense.” (Citation and punctuation omitted.) Lester v. State, 226 Ga. App. 373, 376 (2) (487 SE2d 25) (1997).

On October 19, 1997, Dill was involved in a traffic accident with Matthew Parker. Parker testified that Dill drove his car through a red light and collided with his car. The accident was investigated by Officer Deborah Johnson. While questioning Dill at the scene, Johnson detected the strong smell of an alcoholic beverage on Dill, and she observed that his eyes were watery, his pupils were dilated, his speech was slurred, his balance was unsteady, and his demeanor was agitated. Officer Johnson asked Dill to recite the alphabet, and he omitted letters during his recitation. Both Parker and another witness, Mario Page, testified that they smelled an alcoholic beverage on Dill at the scene.

1. Dill contends that the trial court should have granted his motion for a directed verdict of acquittal. The evidence here was sufficient to support the verdict against Dill. See, e.g., Garrett v. State, 230 Ga. App. 97, 98 (2) (495 SE2d 579) (1998); Bayer v. State, 230 Ga. App. 708, 711 (4) (497 SE2d 266) (1998).

2. Dill contends that the trial court erred by refusing to give the jury the following instruction: “Ladies and Gentlemen of the jury I charge you that: OCGA § 40-5-55 and OCGA § 40-6-391 grant a right to a defendant by providing for refusal to take such test.”

The record contains the following facts relative to this issue. After Officer Johnson arrested Dill for driving under the influence, she escorted him to the police station to perform a breathalyzer test. Although Dill agreed to take the test, which is accomplished by having the subject blow into a tube, he failed to perform it properly. Instead of blowing into the tube, Dill sucked air out of the tube, preventing a reading. On appeal, Dill contends that this behavior was tantamount to a refusal, and, as such, his requested charge should have been given to the jury.

“A request to charge must embody a correct, applicable and complete statement of law, legal and perfect in form and adjusted to the pleadings and evidence; it must not be argumentative or seek an expression of opinion on the part of the court; and it must not be so phrased as to have tendency to confuse and mislead the jury or to becloud the issues in the case.” (Punctuation omitted.) Register v. State, 229 Ga. App. 648 (1) (494 SE2d 555) (1997).

Pretermitting the issue of whether Dill’s performance on the breathalyzer test should be considered a refusal, his requested instruction was an incomplete statement of the law. While OCGA §§ 40-5-55 and 40-6-392 do give an individual the right to refuse a blood-alcohol test, OCGA § 40-6-392 (d) provides that evidence of such refusal may be used against anyone who refuses in a criminal trial. Moreover, Dill’s requested instruction improperly cited OCGA § 40-6-391 as the source defining his right to refuse rather than OCGA § 40-6-392, and it provided an improper case citation as general precedential support. Dill’s requested instruction, therefore, was neither correct nor complete, and it was not error for the trial court to refuse to give it.

3. Dill contends that the State failed to include Matthew Parker on its witness list pursuant to OCGA § 17-16-21, and, as such, the trial court erred in allowing Parker to testify. Due to a typographical error, Parker’s name was listed as “Matthew E. Porker” on the list of State witnesses. Parker’s correct address was listed along with his misspelled name.

OCGA § 17-16-21 provides: “Prior to arraignment, every person charged with a criminal offense shall be furnished with a copy of the indictment or accusation and, on demand, with a list of the witnesses on whose testimony the charge against such person is founded. Without the consent of the defendant, no witness shall be permitted to testify for the state whose name does not appear on the list of witnesses as furnished to the defendant unless the prosecuting attorney shall state that the evidence sought to be presented is newly discovered evidence which the state was not aware of at the time of its furnishing the defendant with a list of the witnesses.”

“The transcending purpose of this Code section is to insure that an accused is not confronted at trial with testimony against him from witnesses whom he has not had the opportunity to interview prior to trial. The record here shows that the witness was identified sufficiently for counsel to have had an opportunity to interview [him] prior to trial. Furthermore, remedies available for defendant are a continuance or a mistrial, neither of which was sought here.” (Citation and punctuation omitted.) Moody v. State, 258 Ga. 818, 821 (4) (375 SE2d 30) (1989). Accordingly, this enumeration of error lacks merit:

Decided November 3, 1998

Reconsideration denied November 13, 1998.

Timothy T. Herring, for appellant.

Ralph T. Bowden, Jr., Solicitor, Tony E. Mathis, W. Cliff Howard, Assistant Solicitors, for appellee.

Judgment affirmed.

McMurray, P. J., and Eldridge, J., concur.

       Dill was also charged with driving with no proof of insurance and disobedience of a traffic control device. The trial court granted Dill’s motion for a directed verdict with regard to the no proof of insurance charge, and the jury found Dill not guilty of disobedience of a traffic device.


author: Smith, Judge.

text:
    A98A0981.
    DOCUTRONICS, INC. v. REITMAN.
    (509 SE2d 348)
   Smith, Judge.

This appeal presents the limited issue of whether a jury verdict was inconsistent in its award of damages to the parties on their claims and cross-claims below. Appellant Docutronics, Inc. contends that the verdict was contradictory and ambiguous, because the jury inconsistently awarded damages, including punitive damages, against Docutronics on Pyramid Technology Corporation’s fraudulent conveyance claim, while declining to award damages on Docutronics’s cross-claim against its shareholders to return unlawful distributions. We agree and reverse.

This litigation arose from the failure of Docutronics, a Delaware corporation in the business of selling computer systems. Docutronics’s hardware vendor, Pyramid, sued Docutronics for return of a $500,000 advance against royalties, claiming breach of a “value added reseller agreement.” Pyramid later amended its complaint to sue the corporation and its shareholders and directors under a theory of fraudulent conveyance, alleging that Docutronics paid bonuses and redeemed its shareholders’ stock with money that should have been used to repay Pyramid’s advance. Docutronics cross-claimed against Jacquith and Reitman, two directors and shareholders, seeking return of the distributions they received.

At trial, the jury returned a special verdict against Docutronics on both breach of contract and fraudulent conveyance claims and against the directors and shareholders for fraudulent conveyance. The jury also determined that Pyramid was entitled to an award of punitive damages from the directors and shareholders. In a separate verdict the jury awarded punitive damages in varying amounts against the directors and shareholders, finding that each acted “with a specific intent to harm Pyramid.” But the jury also found against Docutronics on its cross-claim against the directors. The trial court entered judgment on the verdict and denied Docutronics’s motion for new trial. This inconsistency forms the basis of Docutronics’s appeal.

The parties agree that Docutronics’s cross-claim against its directors properly relies upon the relevant Delaware statutes. 8 Del. C. § 160 (a) (1) forbids the redemption of the capital stock of a corporation “when the capital of the corporation is impaired or when such purchase or redemption would cause any impairment of the capital of the corporation.” 8 Del. C. § 174 (a) (1997), governing among other things unlawful stock purchase or redemption, provides that in case of a wilful or negligent violation of § 160 “the directors under whose administration the same may happen shall be jointly and severally liable ... to the corporation[ ] and to its creditors in the event of its dissolution or insolvency ... to the full amount unlawfully paid for the purchase or redemption of the corporation’s stock, with interest from the time such liability accrued.” Subsection (c) of the same Code section provides for the rights of the corporation and subrogation to those rights by directors liable under subsection (a), “against stockholders who received the . . . assets for the sale or redemption of[ ] their stock with knowledge of facts indicating that such . . . redemption was unlawful under this chapter, in proportion to the amounts received by such stockholders respectively.” See also John A. Roebling’s Sons Co. v. Mode, 43 A 480 (Del. Sup. 1899).

“A verdict that is contradictory and repugnant is void, and no valid judgment can be entered thereon. A judgment entered on such a verdict will be set aside. However, verdicts are to be reasonably construed and not avoided unless from necessity. OCGA § 9-12-4. The burden is upon the party attacking a verdict to show its invalidity.” (Citations and punctuation omitted.) Zurich American Ins. Co. &c. v. Bruce, 193 Ga. App. 804 (1) (388 SE2d 923) (1989).

The verdict returned by the jury in this case is internally inconsistent. With respect to Pyramid’s claims against Docutronics’s directors and shareholders, the jury found them liable for fraudulent conveyance, found that they “acted with a specific intent to harm Pyramid,” and awarded punitive damages against them. Under the law as charged to the jury, a fraudulent conveyance was defined as a conveyance without valuable consideration “by a debtor who is insolvent at the time of the conveyance,” OCGA § 18-2-22 (3), or “made with intention to delay or defraud creditors, where such intention is known to the taking party.” OCGA § 18-2-22 (2). The trial court then instructed the jury that “a corporation is prohibited from purchasing or redeeming its own shares of stock for cash or other property when the capital of the corporation is impaired or when such purchase or redemption would cause any impairment of the capital of the corporation. A corporation’s capital is impaired when the value of its assets is less than the aggregate amount of the value of all the shares of its stock. In effect a corporation is prohibited from redeeming its stock when the purchase diminishes its ability to pay valid debts or lessens the security of the corporation’s creditors.”

The trial court also instructed the jury that punitive damages could be awarded only if the jury found in favor of Pyramid on its fraudulent conveyance claim and that punitive damages could be awarded against the directors and shareholders only if the jury found clear and convincing evidence that they were guilty of wilful misconduct, malice, fraud, wantonness, oppression, or entire want of care. With respect to Docutronics’s cross-claim against its directors and shareholders, the trial court again instructed the jury regarding wrongful redemption and impairment of capital.

Under these instructions, the jury’s verdict of no recovery on Docutronics’s cross-claim was inconsistent with its finding of a fraudulent conveyance, specific intent to harm, and punitive damages against the directors and shareholders. If the jury found a subsection (3) fraudulent conveyance because Docutronics was insolvent, its capital was by definition impaired, and the jury also found that the directors and shareholders had knowledge of this fact and acted with specific intent to harm Pyramid. If, on the other hand, the jury found a subsection (2) fraudulent conveyance with intention to delay or defraud creditors, it also necessarily found impairment of capital within the meaning of Delaware law as charged to the jury.

In Jefferson Ins. Co. &c. v. Dunn, 224 Ga. App. 732, 738-739 (5) (482 SE2d 383) (1997), rev’d on other grounds, 269 Ga. 213 (496 SE2d 696) (1998), this Court considered the construction of OCGA § 18-2-22 (2). “[I]n order for this Code section to apply, so that a conveyance by an insolvent debtor can be attacked by his creditor, it must be made to appear that the insolvent debtor actually parted with some valuable asset which belonged to him, and which, if title had been retained, might have been subjected to his debts.” (Citation and punctuation omitted.) 224 Ga. App. at 739 (5). This Georgia law not only acknowledges insolvency as part of the facts supporting a finding of fraudulent ccinveyance under OCGA § 18-2-22 (2), but also mirrors the Delaware definition of “impairment of capital” as diminishing the corporation’s ability to pay its debts or lessening creditors’ security.

Decided November 13, 1998

Bondurant, Mixson & Elmore, H. Lamar Mixson, Jill A. Pryor, Lynn M. Adam, for appellant.

Given the definition of “impairment of capital” provided to the jury, a finding of fraudulent conveyance under either OCGA § 18-2-22 (2) or (3) constitutes a finding that Docutronics’s capital was impaired by the stock redemption. In finding a fraudulent conveyance and awarding damages to Pyramid on that claim, and in finding a specific intent to cause harm to Pyramid and awarding punitive damages against the directors and shareholders, the jury necessarily found impairment of capital as well as knowledge on the part of the directors and shareholders. These findings are wholly inconsistent and irreconcilable with the jury’s finding against Docutronics on its cross-claim, which required a finding either that no unlawful stock redemption occurred or that the stockholders lacked knowledge of its unlawfulness under 8 Del. C. § 174 (c).

While it is our duty to uphold an ambiguous verdict if possible, “[ejven construing the verdict in the light of the pleadings and evidence, we are unable to establish with substantial certainty which of these . . . conflicting interpretations was the true intent of the jury here.” Zurich American, supra at 805 (1). “A verdict that is contradictory and repugnant is void, and no valid judgment can be entered thereon. A judgment entered on such a verdict will be set aside. Therefore, the trial court erred in denying the parties’ motions for new trial.” (Citation and punctuation omitted.) Hilltop Terrace, Ltd. v. Baker, 261 Ga. 592, 593 (1) (408 SE2d 704) (1991). See also Bunch v. Mathieson Drive Apts., 220 Ga. App. 855, 858 (470 SE2d 895) (1996); H & H Subs v. Lim, 213 Ga. App. 371, 372-373 (444 SE2d 404) (1994).

Judgment reversed.

Johnson, P. J, and Senior Appellate Judge Harold R. Banke concur.

Morris, Manning & Martin, Laureen M. Seeger, Troutman Sanders, Alan W. Loeffler, Sherri M. Graves, for appellee.

       Only one of the directors, Reitman, has filed a brief with this Court. Docutronics and director Sorensen have settled with Pyramid; the other director, Jacquith, has filed no brief, and the parties state that he cannot be located.

       Docutronics seeks only the return of the sums Reitman received for redemption of his shares under subsection (c) of 8 Del. C. § 174.

       This language, which was requested by Pyramid and unobjected to by Reitman, is taken almost verbatim from In re Intl. Radiator Co., 92 A 255 (1) (Del. Ch. 1914).


author: POPE, Presiding Judge.

text:
    A98A0986.
    PARKER et al. v. KENNON.
    (509 SE2d 152)
   POPE, Presiding Judge.

Virginia Gray, by and through her next friend Betty Hewitt, filed a complaint against her daughter Virginia Kemp. The complaint alleges that after Gray had a stroke which left her unable to handle her affairs, Kemp fraudulently obtained an unlimited power of attorney over Gray’s property, which she has mishandled. The complaint seeks appointment of a receiver, an accounting as to all Gray’s property, cancellation of Kemp’s power of attorney, and other relief related to Gray’s financial affairs. The court appointed Warner Ken-non as receiver. Kennon secured a court order freezing bank accounts in the names of Gray’s other two daughters, Linda Hunter and Jane Parker, on the basis that funds in the accounts may belong to Gray. Hunter and Parker filed a motion to lift the freeze on the accounts. The court denied the motion. Hunter and Parker filed this direct appeal from the court’s denial of their motion to lift the freeze.

The order appealed from is not a final judgment or any other type of judgment that can be directly appealed. See OCGA § 5-6-34 (a). Hunter and Parker also failed to seek interlocutory review under OCGA § 5-6-34 (b). In their briefs, Hunter and Parker incorrectly refer to the court’s order as a denial of their motion for summary judgment. They did not file a summary judgment motion, and the court’s order is not a summary judgment ruling, but is simply a denial of their motion to lift the freeze. Moreover, even if the order could somehow be construed as a summary judgment denial, such an order would not be directly appealable, but must be appealed pursuant to the interlocutory appeal procedures. See OCGA §§ 5-6-34 (b); 9-11-56 (h); Southeastern Security Ins. Co. v. Empire Banking Co., 268 Ga. 450 (490 SE2d 372) (1997).

The appeal also does not fall under the collateral order exception to the final judgment rule. “The Supreme Court of Georgia adopted the collateral order exception to the final judgment rule in Patterson v. State, 248 Ga. 875 (287 SE2d 7) (1982). Patterson involved the trial court’s denial of the defendant’s plea of double jeopardy, and since that decision our appellate courts have applied the exception to only two other types of trial court orders. In two cases our Supreme Court allowed a direct appeal of trial court orders cancelling a notice of lis pendens. [Cits.] In another case, this Court applied the collateral order exception in allowing a direct appeal from the trial court’s order to produce attorney work product. [Cit.]” Johnson & Johnson v. Kaufman, 226 Ga. App. 77, 79 (485 SE2d 525) (1997). The order in the instant case is not one of these types of orders in which the collateral order exception has been applied. Furthermore, the exception does not apply here because the order refusing to lift the freeze (1) does not completely and conclusively resolve the issue appealed (i.e., whether the money in the account belongs to Gray or to the daughters); (2) does not concern an issue substantially separate from the basic issues presented in the complaint; and (3) would not result in the loss of an important right. See id.

Decided November 13, 1998

L. B. Kent, for appellants.

Hagler, Hyles, Adams & McKenna, Ashley C. McKenna, Denney, Pease, Allison & Kirk, John W. Denney, Peter G. Williams, Larry L. Taylor, for appellee.

Warner L. Kennon, Sr., pro se.

Because Hunter and Parker directly appealed from an order that is not directly appealable and failed to follow the appropriate interlocutory appeal procedures, their appeal is dismissed.

Appeal dismissed.

Beasley and Ruffin, JJ., concur.


author: Pope, Presiding Judge.

text:
    A98A1122.
    ALPHA BETA DICKERSON SOUTHEASTERN, INC. v. WHITE COMPANY.
    (509 SE2d 351)
   Pope, Presiding Judge.

White Company, which was involved in the offset printing business for many years, agreed to transfer its offset printing contracts and accounts to Alpha Beta Dickerson Southeastern, Inc. In exchange, Alpha Beta agreed to purchase White’s offset printing inventory. The president of Alpha Beta prepared the agreement, which provides in pertinent part: “Upon verification by A.B. Dick Southeastern of WHITE’S physical inventory, relative to the offset industry, that is deemed ‘useable and sellable’, A.B. Dick Southeastern agrees to pay to WHITE’S the dealer cost available to A.B. Dick Southeastern for said determined inventory.”

Although they did not name him in the contract, White and Alpha Beta agreed that Grady Singletary, an Alpha Beta employee who had previously worked for White, would prepare a list of White’s offset printing inventory. Pursuant to instructions from White and Alpha Beta, Singletary made a list of the inventory that he deemed to be usable and sellable. Thereafter, Alpha Beta President Curtis Johnson refused to buy all the inventory on the list, claiming that Alpha Beta could use only some of the listed inventory.

White then sued Alpha Beta for breach of contract, fraud, bad faith and stubborn litigiousness, asserting that Alpha Beta was obligated by the agreement to buy all the listed inventory deemed usable and sellable by Singletary. Alpha Beta answered the lawsuit and counterclaimed for breach of contract, fraud and bad faith, contending that Singletary’s inventory list was merely a preliminary step after which Alpha Beta would decide what inventory was usable and sellable. The case was tried before a jury, which awarded White $91,482 on its complaint and also found for White on Alpha Beta’s counterclaim. The trial court entered judgment for White on the verdict.

Alpha Beta appeals, challenging the sufficiency of the evidence supporting the verdict and the court’s refusal to give a requested jury charge. The challenges are without merit, and we affirm the judgment.

1. Alpha Beta argues that there is no evidence from which the jury could have found that under the contract Singletary, instead of Johnson, was authorized to determine the usable and sellable White inventory. On appeal, we must construe the evidence in favor of the verdict and judgment. James v. Tyler, 215 Ga. App. 479, 480 (1) (451 SE2d 506) (1994). “It is well established that this court will not pass on the weight, but [will pass on] the sufficiency of the evidence. If there is ‘any evidence’ to support the verdict we cannot disturb it.” (Citations and punctuation omitted.) Bishop Contracting Co. v. North Ga. Equip. Co., 203 Ga. App. 655, 657 (1) (417 SE2d 400) (1992). Contrary to Alpha Beta’s argument, there is some evidence from which the jury could have found that under the contract Singletary was authorized to determine the usable and sellable inventory.

“There are three steps in the process of contract construction. 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 (OCGA § 13-2-2); if after doing so the trial court determines that an ambiguity still remains, the jury must then resolve the ambiguity. We presume that the trial court proceeded properly even though our record does not clearly reveal the process employed. Ambiguity in a contract may be defined as duplicity, indistinctness, an uncertainty of meaning or expression.” (Citations and punctuation omitted.) Karlan, Inc. v. King, 202 Ga. App. 713, 715 (1) (415 SE2d 319) (1992). The contract in the instant case, even after applying the rules of construction found in OCGA § 13-2-2, is ambiguous. As the parties both agree, the contract plainly provides that Alpha Beta is to verify the inventory that is usable and sellable. But the contract is ambiguous in that it does not identify who at Alpha Beta is to make the verification.

“Parol evidence is admissible to explain all ambiguities, the question as to what was intended being an issue of fact for the jury. Even after the introduction of parol evidence, there remains a conflict in the evidence as to the intent of the parties, and this disagreement is an evidentiary, factual matter for resolution by the jury and not a matter of law for determination by the court.” (Citations and punctuation omitted.) Karlan, Inc. v. King, 202 Ga. App. at 715-716. The parol evidence in the instant case is in conflict as to whom the parties intended to determine the usable and sellable inventory. Alpha Beta presented evidence that the parties intended Johnson to make the final determination. White, however, presented testimony that the parties intended that Singletary would make the determination.

White’s president swore in an affidavit and testified at trial that the parties agreed Alpha Beta would buy all the usable and sellable inventory as determined by Singletary. He further testified that, in negotiating the contract, the parties never discussed Johnson reviewing the inventory list prepared by Singletary. In fact, Alpha Beta’s own general sales manager, Jerry Carter, who helped negotiate the terms of the contract, testified that he could not remember ever telling White that Johnson would review the inventory list prepared by Singletary to determine what was usable and sellable.

Walter McConnell, who helped negotiate the agreement on behalf of White, testified that Singletary was the expert on White’s inventory because he was familiar with all of it from his 20 years as a White employee. McConnell stated that Carter suggested having Singletary take the inventory, the purpose of which was to determine the usable and sellable inventory that Alpha Beta would buy under the contract. He also testified that Carter never mentioned having Johnson review Singletary’s inventory list.

In addition, the undisputed evidence shows that Singletary did in fact make a list of the White inventory that he believed to be usable and sellable. At his deposition, Singletary testified: “The only instructions I received was sitting down with Jerry Carter at lunch, after he met with Jerry McConnell earlier that day. He told me that I was going to be the one to go in there and do the inventory of the parts and everything, because The White Company felt like that would be the best thing, would be to let me do it. . . . And they trusted me to do it.” At trial, Singletary reiterated that Carter told him that Alpha Beta and White had agreed that Singletary would review the inventory, and that he then listed only the inventory that he thought was usable.

Although the evidence is in conflict as to whom the parties intended to determine the usable and sellable inventory, it was the jury’s function to resolve that conflict. See Dept. of Transp. v. Blair, 220 Ga. App. 342, 344 (1) (a) (469 SE2d 446) (1996). Because there is some evidence to support the finding that the parties intended for Singletary to determine the usable and sellable inventory, Alpha Beta’s challenge to the sufficiency of the evidence is without merit.

2. Alpha Beta claims the court erred in refusing to give its requested charge on absolute and conditional contracts. Alpha Beta, however, failed to except properly to the court’s ruling and therefore has not preserved the issue for appeal.

“To be reviewable on appeal, an objection to the jury charge must be unmistakable in directing the attention of the trial court to the claimed error and must point out distinctly the portion of the charge challenged; the grounds of error must be stated with sufficient particularity to leave no doubt as to the portion of the charge challenged or as to the specific ground of challenge, and must fully apprise the court of the error committed and the correction needed. [Cit.] Such specificity is required to ensure that the trial judge is afforded an opportunity to correct any error in the instructions prior to verdict so that the necessity of an appeal will be obviated. [Cit.] The grounds must be stated distinctly enough for a reasonable judge to understand its nature, enabling him to rule intelligently on the specific point. [Cits.]” Bedeski v. Atlanta Coliseum, 224 Ga. App. 435, 436 (1) (480 SE2d 881) (1997).

Here, after the court charged the jury, Alpha Beta simply stated, “we take exception to our Number 3 on absolute and conditional contracts and Number 8 on duty to mitigate.” This exception did not comply with the statutory requirement that “in all civil cases, no party may complain of the giving or the failure to give an instruction to the jury unless he objects thereto before the jury returns its verdict, stating distinctly the matter to which he objects and the grounds of his objection.” OCGA § 5-5-24 (a). Because Alpha Beta did not state distinctly the matter to which it objected and the grounds of the objection, there is nothing for us to review.

Decided November 13, 1998.

Denney, Pease, Allison & Kirk, Ray L. Allison, Elizabeth S. Morgan, for appellant.

Self, Mullins, Robinson, Marchetti & Kamensky, Lucius M. Lay field III, for appellee.

3. White’s motion for an award of frivolous appeal damages is denied because, contrary to White’s claims, we find no reason for concluding that Alpha Beta appealed for delay only. See OCGA § 5-6-6; Court of Appeals Rule 15 (b); Starrett v. Commercial Bank of Ga., 226 Ga. App. 598, 601 (3) (486 SE2d 923) (1997).

Judgment affirmed.

Beasley and Ruffin, JJ, concur.

       We note that Paragraph 7 of White’s complaint alleges that Alpha Beta agreed to “purchase all of White’s physical inventory and supplies relative to the offset industry that were deemed ‘useable and saleable’ by a designated representative of [Alpha Beta], Mr. Grady Singletary.” In its answer to the complaint, Alpha Beta replied: “Defendant ALPHA BETÁ admits the general allegations contained in Paragraph 7 of Plaintiff’s Complaint.”
      Additionally, White served an interrogatory asking Alpha Beta to state its “understanding of the background behind the agreement... including a description of the circumstances which [led] to the signing of this agreement; the individuals who represented your company in negotiating said transaction; and whether said agreement was a memorialization of any prior oral agreement.” In response, Alpha Beta said, in part, “Defendant’s Sales Manager, Jerry Carter, talked with The White Company, generally as alleged in Paragraph 7 of Plaintiff’s Complaint. After reaching the oral agreement, it was then reduced to a written agreement. . . .”


text:
    A98A1257.
    JOHNSON et al. v. FULTON COUNTY.
    (509 SE2d 355)
   POPE, Presiding Judge.

Fulton County firefighters Thomas Johnson and Robert Tyrrell, Fulton County deputy sheriffs Neel Berry and Yvonne McConico, the Fraternal Order of Fulton County Firefighters and Local 453 International Brotherhood of Police Officers filed a class action against Fulton County. The employees claim that from 1990 until the present the county failed to pay county merit system employees annual salary increases of four percent as required by an employee handbook. They seek damages under theories of breach of contract, promissory estoppel, and due process. The county moved for summary judgment on all the claims, and the employees moved for partial summary judgment. The court denied the employees’ motion, but granted the county’s motion. The employees appeal. We affirm the trial court’s judgment.

1. The employees argue they have a contractual right to four percent annual pay raises based on the following language from an employee handbook: “A multi-step salary range is established for each class and position. These steps or ‘increments’ provide for regular annual increases of one step (4%) each year.” While this language, standing alone, might be construed to guarantee yearly raises, the trial court correctly ruled that the language, when read in the context of the entire handbook and the applicable county personnel regulations, does not entitle employees to mandatory annual pay raises. Moreover, the court also correctly ruled that any purported pay raise requirement set forth in the handbook cannot legally bind future county authorities.

(a) The foreword of the handbook states: “The purpose of this handbook is to acquaint you with your job and your County. It will provide you with answers to many of your questions.” The handbook later provides: “Your service and careers with Fulton County are governed by two important publications, the Civil Service Act of 1982 and the Personnel Regulations, which implement the Civil Service Act. All employees and Appointing Authorities are required by the Act to comply with these Personnel Regulations. We urge all employees to refer to and read these Personnel Regulations carefully so that you may be kept fully informed as to your rights, privileges and obligations. These Personnel Regulations contain comprehensive and detailed information concerning positions and classes, salaries . . . and many other items which will affect your employment.” (Punctuation omitted.) Another section of the handbook which summarizes employee benefits, including annual pay raises, states: “For more details, please refer to the various booklets and publications which are included in this handbook.”

One of the publications included with the handbook is a copy of the personnel regulations. The foreword of the regulations provides: “[T]he Board of Commissioners, County Manager and Personnel Board are pleased to announce the approval and publication of the enclosed series of Personnel Regulations (PR’s) for the information and guidance of all concerned. These Personnel Regulations supersede and replace all earlier Rules and Regulations of the Personnel Board. . . . These Personnel Regulations . . . have the force and effect of law. All employees and Appointing Authorities are enjoined by the Act to comply with their provisions. We urge all employees to read these Personnel Regulations carefully so that you may be kept fully informed as to your rights, privileges and obligations. Any questions that may arise concerning these Regulations should be referred to the Fulton County Personnel Department.”

Based on the quoted language from the handbook and the personnel regulations, it is apparent that the handbook does not establish the specific and comprehensive terms of employment with the county. Rather, the handbook merely summarizes and acquaints employees with their rights, privileges and obligations. The specific rules actually governing employee rights, such as salary increases, are found in the county personnel regulations, which implement the Civil Service Act. The handbook and the regulations expressly notify employees that they must consult the personnel regulations to be fully informed about their rights, privileges and obligations. Accordingly, the employees’ reliance on language from the handbook in claiming mandatory pay increases is misplaced. See Adams v. Hercules, Inc., 245 Ga. 464 (265 SE2d 781) (1980) (handbook put employees on notice of a master agreement and that such master agreement should be examined to determine available benefits).

Instead of the handbook, the personnel regulations must be examined to determine if the county is required to give employees annual pay raises. The applicable regulation is PR-300-14, which provides: “Upon the recommendation of an Appointing Authority and approval by the Personnel Director and the County Manager, a one (1) step regular annual salary increase may be granted to an employee within the authorized range for each twelve (12) months of continuous active creditable service, counting from the established annual increment date in each instance, except for employees in the maximum step of their assigned ranges.” (Emphasis supplied.) As the trial court correctly found, this regulation does not require that the county pay annual raises to all employees; rather, it establishes that the county has discretion in deciding whether to award raises. The appointing authority has discretion to recommend a raise, and both the personnel director and the county manager have discretion to approve such a recommendation. Based on such recommendation and approval, a raise may be granted. Because the regulations do not provide for mandatory annual pay raises, but instead provide for the possibility of such increases at the discretion of county authorities, the employees’ claim that the county had a contractual obligation to give annual raises is without basis in fact or law.

(b) Furthermore, even if we assume without deciding that the 1987 handbook requires the county to give employees annual four percent salary increases, such a requirement cannot legally bind the county to approve or fund pay increases in the future. In Intl. Brotherhood &c. v. Chatham County, 232 Ga. App. 507 (502 SE2d 341) (1998), Chatham County employees argued that an employee handbook providing for salary increases was a contract requiring the county to pay such unpaid increases. This Court held that the county could not be bound by the handbook. “OCGA § 36-30-3 (a) provides that one council may not, by an ordinance, bind itself or its successors so as to prevent free legislation in matters of municipal government. . . . The appropriating process is a legislative function and the law prohibits a local governing authority from binding itself or its successors so as to prevent free legislation.” (Citations and punctuation omitted.) Id. at 508-509. Likewise, the handbook in the instant case cannot prevent free legislation by binding future county authorities to approve annual salary increases. See Buskirk v. State of Ga., 267 Ga. 769 (482 SE2d 286) (1997).

Decided November 13, 1998.

Kirwan, Parks, Chesin & Miller, Larry Chesin, for appellants.

Viviane M. Haight, Larry W. Ramsey, Jr., for appellee.

For the foregoing reasons, the trial court correctly granted summary judgment to the county on the employees’ breach of contract claim.

2. The employees claim that they relied to their detriment on the county’s promise to pay annual four percent raises and therefore the county is estopped from denying such raises. To establish a claim under the doctrine of promissory estoppel, the employees must show (1) the county promised mandatory annual four percent raises, (2) the county should have expected that the employees would rely on such a promise, (3) the employees did in fact rely on the promise to their detriment, and (4) injustice can be avoided only by enforcement of the promise. See OCGA § 13-3-44 (a); Dooley v. Dun & Bradstreet Software &c., 225 Ga. App. 63, 66 (3) (483 SE2d 308) (1997). The employees cannot establish a promissory estoppel claim because, as discussed in Division 1, the county did not promise mandatory annual four percent pay raises. Because there was no binding promise of automatic pay increases, the trial court correctly granted summary judgment to the county on this claim.

3. The employees argue that the county’s failure to give them the promised annual four percent salary increases violates their due process rights under the Georgia Constitution. In support of their argument, they cite State of Ga. v. McMillan, 253 Ga. 154, 160 (1) (319 SE2d 1) (1984), which held that a prohibition on the ability of retired superior court judges to practice law violated their due process rights to work. Unlike the appellants in McMillan, the employees in this case have not had their right to work limited. Moreover, their claimed interest in annual four percent pay raises is not, as discussed above, a property right that has been provided for by any law. See Horne v. Skelton, 152 Ga. App. 654, 660 (4) (263 SE2d 528) (1979) (no legal entitlement to job promotion). Accordingly, the trial court did not err in granting summary judgment in favor of the county on the due process claims. See generally City of Atlanta v. Mahony, 162 Ga. App. 5 (289 SE2d 250) (1982).

Judgment affirmed.

Beasley and Ruffin, JJ., concur.

       The booklet was printed once and distributed to county departments in August 1987. No further copies were printed after that time.

       “No person shall be deprived of life, liberty, or property except by due process of law.” Ga. Const. of 1983, Art. I, Sec. I, Par. I.


text:
    A98A2376.
    In the Interest of D. W. et al., children.
    (59909 SE2d 345)
   Blackburn, Judge.

Appellant, the biological mother of D. W., L. P. W., L. S. W., R. W., and L. R. W., appeals the juvenile court’s termination of her parental rights, claiming, through seven enumerations of error, that the evidence was insufficient to support the termination. As there is clear and convincing evidence which supports the termination, we affirm the juvenile court’s decision.

On appeal, we must determine “whether, after reviewing the evidence in a light most favorable to the lower court’s judgments, any rational trier of fact could have found by clear and convincing evidence that the natural parent’s rights to custody have been lost. This Court neither weighs evidence nor determines the credibility of witnesses; rather, we defer to the trial court’s factfinding and affirm unless the appellate standard is not met.” (Citation and punctuation omitted.) In the Interest of R. N., 224 Ga. App. 202 (480 SE2d 243) (1997).

On January 23, 1992, the juvenile court found appellant’s children to be deprived on the basis that appellant failed to provide necessary medical treatment and schooling for them. The children were placed in the custody of the Department of Family & Children Services (DFACS), and a 30-day case plan was developed. The goals for reunification incorporated into this plan, among others, included: (1) appellant would improve her parenting knowledge and skills; (2) appellant would develop stable living conditions; and (3) appellant would maintain contact with the children. Over the six years following the removal of her children, appellant took only a single parenting class, never held a job or established her own home, never provided any monetary support for her children, and visited her children only sporadically. Furthermore, from 1993 through 1997, appellant did not attend a single Citizen’s Panel Review regarding her reunification plan. On November 19, 1997, DFACS petitioned the juvenile court to terminate appellant’s rights. On February 27,1998, the juvenile court granted this petition.

“Before terminating a parent’s rights, a juvenile court must employ a two-prong test. In the first prong, the court must decide whether there is ‘present clear and convincing evidence of parental misconduct or inability.’ OCGA § 15-11-81 (a). Parental misconduct or inability, in turn, is proven by evidence showing: (1) that the child is deprived; (2) that lack of proper parental care or control is the cause of deprivation; (3) that the cause of deprivation is likely to continue or will not likely be remedied; and (4) that continued deprivation is likely to cause serious physical, mental, emotional, or moral harm to the child. OCGA § 15-11-81 (b) (4) (A). . . . In the second prong of the termination test, the juvenile court must consider whether termination of parental rights would be in the best interest of the child.” In the Interest of V. S., 230 Ga. App. 26, 27 (495 SE2d 142) (1997).

There is no issue as to whether the appellant’s children were deprived. The record contains previous orders of the juvenile court which include findings of such deprivation, and, in the termination proceedings, the court took judicial notice of such orders. See In the Interest of J. L. Y., 184 Ga. App. 254 (1) (361 SE2d 246) (1987). In addition, there was evidence that the appellant had failed to communicate with her children in a “meaningful, supportive, parental manner” for more than a year prior to the termination petition. See OCGA § 15-11-81 (b) (4) (C).

The evidence supported the juvenile court’s determination that appellant’s inability to adequately care for her children was the cause of their deprivation. The children were initially taken into DFACS’ custody because appellant, who held no job and could not provide stable living conditions, failed to provide them with appropriate medical care and schooling. However, in DFACS’ custody, the children were healthy and made significant educational improvement. As such, there was clear and convincing evidence that the children’s deprivation originated from appellant’s neglectful childrearing.

The evidence also shows that the children’s deprivation would be likely to continue in appellant’s care. “Although past deprivation is not sufficient for termination without a showing of present deprivation, the court can consider a parent’s past conduct in determining whether such conditions of deprivation are likely to continue. The court was entitled to infer from the evidence that, despite the best efforts of DFACS and many other social workers and charities, the same pattern of deprivation would continue [if] the children were reunited with their mother.” (Citation and punctuation omitted.) In the Interest of R. N., supra at 204 (1) (c). Here, the appellant had six years to attempt to make changes in her life to regain custody of her children. Instead, appellant did almost nothing.

A finding that the children would likely be harmed by the continued deprivation is supported by the record. Again, despite the fact that her children were removed from her custody, appellant’s attempts to achieve reunification were almost nonexistent. In light of appellant’s history of neglect, her minimal efforts to attain reunification, and her failure to comply with DFACS’ case plan, the evidence provides clear and convincing proof that reuniting these children with appellant would cause harm to them.

Decided November 13, 1998.

Chandler R. Bridges, for appellant.

Thurhert E. Baker, Attorney General, William C. Joy, Dennis R. Dunn, Senior Assistant Attorneys General, Shalen A. Sgrosso, Assistant Attorney General, Nardone & Read, Robert G. Nardone, for appellee.

Finally, the record supports a finding that the best interests of the children are served by termination of appellant’s rights. The same factors which show appellant’s inability to rear her children may also provide evidence that termination of her rights would be in the best interests of her children. In the Interest of G. K. J., 187 Ga. App. 443, 444 (2) (370 SE2d 490) (1988). Although appellant now claims that she will find an apartment and get a job, she has not held a job since 1980, and the outcome of this case remains the same. “ ‘[T]he decision as to a child’s future must rest on more than positive promises which are contrary to negative past fact.’ ” In the Interest of D. I. W., 215 Ga. App. 644, 646 (1) (451 SE2d 804) (1994).

Judgment affirmed.

McMurray, P. J., and Eldridge, J., concur.

       The putative father of the children does not appeal the termination of his rights.

       Appellant visited her children only 13 times from 1992 through 1997.

       In fact, in 1995, 1996, and 1997 combined, appellant visited her children only two times.

         When asked what she did on a daily basis, appellant replied: “I don’t do anything. I just stay in the house. That’s about all I do, stay in and visit my sister.”


author: Judge Harold R. Banke.

text:
    A98A1599.
    AUGUSTA SURGICAL CENTER, INC. et al. v. WALTON & HEARD OFFICE VENTURE.
    (508 SE2d 666)
   Judge Harold R. Banke.

Walton & Heard Office Venture (“Walton-Heard”), a Georgia general partnership, owns an office building at 2050 Walton Way (“2050 building”) which it alleged was subject to a certain real estate sales contract executed by R. Jeffrey Adkins, M.D. Although neither Augusta Surgical Center, Inc. (“Augusta Surgical”) nor Surgicare of Augusta, Inc. (“Surgicare”) appear by name on this contract, Walton-Heard contended that in executing it, Adkins acted individually and also as an agent for both entities.

Augusta Surgical is a Georgia corporation that owned a nearby office building in which Surgicare, an entity owned by Columbia/ HCA, leased space. Under that lease, Surgicare was afforded an option to purchase Augusta Surgical’s building for $1,850,000. At the time of the transaction at issue, Adkins was secretary/treasurer of Augusta Surgical and was under contract with Surgicare as its medical director. After the closing failed to transpire, Walton-Heard sued Adkins, Augusta Surgical, and Surgicare for specific performance of the sales contract or for damages for breach of that contract. Adkins, Augusta Surgical, and Surgicare appeal the denial of their motions for summary judgment, collectively asserting 17 enumerations of error.

On May 5, 1995, Adkins, as “BUYER” executed a sales contract to purchase Walton-Heard’s 2050 building for $1,650,000. Adkins provided a $5,000 personal check as earnest money. A. L. Adams signed on behalf of Walton-Heard and Joseph Hamilton, a broker and a partner in Walton-Heard, also signed. One week after executing the contract, Adkins entered a substance abuse treatment program lasting several months. As the closing date of June 17 approached, Hamilton was unable to locate Adkins. Instead, Hamilton met with Andrew Rang of Columbia/HCA, the owner of Surgicare, Beryl Barrett, the administrator of Surgicare, and Hugh Connolly, a partner in Walton-Heard, to discuss the sales contract.

While the real estate transaction at issue was pending, Surgicare and Augusta Surgical attempted to finalize a tax-free exchange of buildings. According to Hamilton, the plan was for Surgicare to purchase and obtain title to the 2050 building owned by Walton-Heard and then exchange it for the building owned by Augusta Surgical. In the end, Augusta Surgical would hold title to the 2050 building.

On several occasions, Hamilton negotiated with representatives of Columbia/HCA including King, who was vice president of Surgicare, Karl B. Wagner, chief regional financial officer for Columbia/ HCA, and Steven Baker, legal counsel for Surgicare. King acknowledged that he and Adkins discussed the tax-free exchange concept before Adkins entered treatment. While Adkins remained unavailable, Barrett, on behalf of Surgicare and Adams for Walton-Heard twice initialed changes to the sales contract extending the date of closing. Later, the financing contingency clause was deleted. King explained that his company (Surgicare) extended the closing date because “we were trying to make a transaction happen.” Adkins never re-executed or initialed the modified contract.

Although Augusta Surgical’s board of directors unanimously approved the tax-free exchange, its shareholders rejected it. John D. Harmon, M.D., a shareholder of Augusta Surgical who inspected the building prior to the shareholders meeting, testified that he told the shareholders that if they could get the building for a lower price, “we could still hold this thing together.” The shareholders voted to search for other properties. Prior to the vote of the stockholders, $18,000 in legal fees were incurred for work on the proposed tax-free exchange. Augusta Surgical and Columbia/HCA (Surgicare) split these fees 50/ 50.

With no written document providing authorization for Adkins to purchase real estate on behalf of either Augusta Surgical or Surgicare, the parties contest who did what for whom. According to Hamilton, he and Adkins had been negotiating for several months and he understood that Adkins was operating on behalf of others. However, Adkins testified that he had entered the contract only for himself and hoped to put a group together to purchase the property or to obtain the financing for himself. Both Augusta Surgical and Surgicare denied giving Adkins authority to act on their behalf. Adkins as secretary/treasurer of Augusta Surgical had check writing authority on Augusta Surgical’s checking account and reimbursed the $5,000 earnest money to himself. Only after Walton-Heard filed the underlying action did the directors of Augusta Surgical seek repayment of the $5,000, and Adkins refused to comply.

In a letter dated July 20, ,1995, Wagner, the chief regional financial officer of Columbia/HCA, the owner of Surgicare, wrote the following to Hamilton: “As you know, Columbia/HCA is interested in acquiring the office building located at 2050 Walton Way. . . . We have delayed the anticipated closing date of the transaction which was initiated by the doctors since it is now expected that Columbia will purchase the property. We expect that we will close on the transaction by August 25, 1995.” Held:

1. Citing the general contract principles of statute of frauds, “mirror image” rule, and the concept of “equal dignity,” the appellants contend they are entitled to judgment as a matter of law.

As a general rule, where the exercise or performance of an agency is by written instrument, the agency must also be created by written instrument. OCGA § 10-6-2. Under the “equal dignity rule,” the authority of an agent to execute an instrument required by the statute of frauds to be in writing must also be in writing. Turnipseed v. Jaje, 267 Ga. 320, 322 (1) (477 SE2d 101) (1996). “Thus, the authority of an agent to execute a contract for the sale of real estate must be evidenced by a writing. [Cits.]” Id. Otherwise, the purpose of the statute of frauds would be frustrated. Jones v. Sheppard, 231 Ga. 223, 225 (200 SE2d 877) (1973). Here, no written document exists which authorized Adkins to act on behalf of either Augusta Surgical or Surgicare.

The absence of this writing, however, does not resolve this case. “[W]hile a written instrument may have been executed by an agent not having any authority in writing to do so or not having been ratified by an act of comparable dignity, the principal may nevertheless be estopped by his acts from denying the authority of his agent. [Cits.]” 20/20 Vision Center v. Hudgens, 256 Ga. 129, 134 (4) (345 SE2d 330) (1986). Thus, if by their conduct Augusta Surgical or Surgicare ratified Adkins’ actions, then they would be estopped from denying Adkins’ authority. Id.

2. Both Augusta Surgical and Surgicare contend that the general principles of agency/partnership demonstrate that they are entitled to judgment as a matter of law.

An agency relationship is created wherever one person expressly or by implication authorizes another to act for him or subsequently ratifies the acts of another in his behalf. OCGA § 10-6-1. “[A]pparent authority to do an act is created as to a third person when the statements or conduct of the alleged principal reasonably cause the third party to believe that the principal consents to have the act done on his behalf by the purported agent.” (Emphasis in original.) Brown v. Little, 227 Ga. App. 484, 487 (2) (489 SE2d 596) (1997) (physical precedent only).

Walton-Heard offered evidence that Surgicare did not repudiate the contract but rather embraced it. On two occasions, Surgicare agreed in writing to extend the closing date. Surgicare agreed to delete the financing contingency, and it tried to satisfy the August closing date. By letter and action, Surgicare through King appears to have communicated to Walton-Heard that Surgicare fully intended to purchase the 2050 building for the tax-free exchange. In these circumstances, we find that a jury must resolve whether by these actions Surgicare ratified Adkins’ execution of the contract and whether Surgicare’s conduct would have led a person of ordinary prudence to believe that Adkins had acted on Surgicare’s behalf. Turnipseed, 267 Ga. at 323 (2) (a). See Commercial Credit Corp. v. Noles, 85 Ga. App. 392, 396 (69 SE2d 309) (1952) (principal estopped to deny agency where principal appears to have conferred authority).

Further, even where a binding agreement is lacking, triable issues of fact may preclude summary judgment under the doctrine of promissory estoppel. 20/20 Vision Center, 256 Ga. 135 (7). Here, Walton-Heard offered evidence that in reliance upon the pending closing, it ceased advertising and marketing its leased space and told certain businesses that it could not rent to them. Further, in reliance upon the impending closing, Walton-Heard failed to seek a renewal of a soon-to-expire bank mortgage. See Morgan v. Maddox, 216 Ga. 816, 819 (120 SE2d 183) (1961) (doctrine of estoppel is predicated upon a detrimental change in position in reliance upon the conduct of the party to be estopped). Therefore, the trial court properly denied summary judgment to Surgicare.

However, we reach a different outcome with respect, to Augusta Surgical. “The officers [of a corporation] appointed by the directors are clothed with only such powers and authority as are expressly conferred upon them by the charter or the by-laws, or as may be implied by usage and acquiescence. [Cit.]” Henderson Lumber Co. v. Chatham Bank &c. Co., 33 Ga. App. 196, 197 (1) (125 SE 867) (1924). In this case, the agreement was not executed in Augusta Surgical’s name. Adkins did not sign the contract as “secretary/treasurer of” or “on the behalf of.” Nor did Walton-Heard offer evidence of conduct by Augusta Surgical that it clothed Adkins with apparent authority to bind it to this contract. Bresnahan v. Lighthouse Mission, 230 Ga. App. 389, 391 (1) (496 SE2d 351) (1998). While it is true that Adkins reimbursed the earnest money to himself through Augusta Surgical’s account, no evidence shows that Walton-Heard knew about that reimbursement and relied upon it. It is undisputed that no one representing Augusta Surgical agreed to extend the closing date, initialed the contract changes, or consented to any modifications in the sales contract. See 20/20 Vision Center, 256 Ga. at 134 (5); OCGA § 10-6-50.

Moreover, it is undisputed that Augusta Surgical’s sole property consisted of the office building and a vacant lot. Barring certain circumstances not applicable here, State law precludes a corporation from exchanging substantially all its property, unless and until such action receives both board of directors and shareholder approval. OCGA §§ 14-2-1202 (b); 14-2-1201. Due to shareholder opposition, Augusta Surgical could not proceed with the tax-free exchange plan. Id.

Notwithstanding Walton-Heard’s contention to the contrary, Surgicare and Augusta Surgical were not both purchasing the 2050 building. Under the tax-free exchange plan, Surgicare, not Augusta Surgical, was to buy the 2050 building from Walton-Heard, and then trade it to Augusta Surgical for Augusta Surgical’s building. Evidently, after the shareholders of Augusta Surgical rejected the tax-free exchange of buildings, both the real estate sale and the exchange unraveled. Under these facts, we cannot agree that Augusta Surgical was a party bound to the real estate contract at issue. Therefore, Augusta Surgical was entitled to summary judgment. See East Piedmont 120 Assoc. v. Sheppard, 209 Ga. App. 664, 666 (434 SE2d 101) (1993).

Decided October 20, 1998

Reconsiderations denied November 16, 1998.

Jay M. Sawilowsky, Timothy S. Mirshak, for appellants.

Dye, Tucker, Everitt, Wheale & Long, John B. Long, Jon E. Ingram, Jr., for appellee.

3. Surgicare contends that the trial court failed to recognize that Walton-Heard’s partnership never properly authorized any agent to execute the sales contract on its behalf. In light of the conflicting evidence in the record, we believe that a jury must determine whether Adams, Hamilton, and Connolly, the members of Walton-Heard’s managing committee, exceeded their authority or violated the terms of the partnership agreement. See Atlanta Biltmore Hotel Corp. v. Martell, 118 Ga. App. 172, 175 (3) (162 SE2d 815) (1968).

4. Adkins contends that he was entitled to summary judgment. We disagree. Without question, the parties dispute whether Adkins acted for himself or as an agent. Material issues of disputed fact remain as to whether the changes to the sales contract constituted a counteroffer or contract modifications. See Morrison v. Trust Co. Bank, 229 Ga. App. 145, 147 (1) (493 SE2d 566) (1997). Having reviewed the disputed facts in a light most favorable to Walton-Heard, we cannot say that triable issues do not remain. Id. at 146.

5. The remaining issues are either without merit or are controlled by the above findings.

Judgment affirmed in part and reversed in part.

Johnson, P. J, and Beasley, J., concur. Smith, J., disqualified.

       Hamilton, A. L. Adams, and Hugh Connolly are the managing partners and comprised the managing committee of Walton-Heard.

       According to the Exchange Plan of Augusta Surgical Center, Inc., “C/HCA has agreed to purchase the two story office building . . . known as 2050 Walton Way from its present owners for $1,650,000 and exchange such property for that now owned by ASCI.”

       In any event, King admitted that Surgicare had discussed the possibility of reimbursing Augusta Surgical for the $5,000 earnest money after the conclusion of this case.


text:
    A98A1660.
    ADAMS et al. v. ATLANTA CASUALTY COMPANY.
    (509 SE2d 66)
   Judge Harold R. Banke.

Atlanta Casualty Company (“Atlanta Casualty”) filed a declaratory judgment action to ascertain whether it had any duty to defend or provide coverage for Willie Alvin Adams, Jr. After the trial court found in favor of Atlanta Casualty, Willie A. Adams, Sr., Willie A. Adams, Jr., and General Accident Insurance Company of America (“General Accident”) commenced this appeal.

The underlying case arose after Theresa Adams, with the express authorization of Adams, Sr., completed an insurance application on his behalf which contained a “NAMED DRIVER EXCLUSION AGREEMENT” expressly “superseding] and excluding] from the policy any contrary provision^].” In two separate places on the application, the names of Adams, Jr. and his sister appear as excluded drivers notwithstanding the fact that one line was left blank. Mrs. Adams admitted that it was her intent to exclude Adams, Jr. from coverage under the policy, and that it was her understanding that he had been excluded. By not including the children on the policy, Mrs. Adams was able to procure a policy from Atlanta Casualty at a reduced premium.

Shortly after Mrs. Adams submitted the application, Adams, Jr. became involved in an automobile accident involving a third party. Upon receiving a report of this accident, Atlanta Casualty notified its policyholder, Adams, Sr., that it would investigate under a complete reservation of rights. About ten days later, Atlanta Casualty sent notice to him that no coverage existed because of the named driver exclusion.

After a third party filed suit against Adams, Jr., that party’s uninsured motorist carrier, General Accident, defended Adams, Jr. It is undisputed that Atlanta Casualty was not notified about the tort suit until over a year after it was filed. Nearly two years after denying coverage, while the applicability of the exclusion remained in dispute, Atlanta Casualty advised its policyholder that it had assigned the defense of Adams, Jr. to a specified law firm and that Atlanta Casualty would pay the attorney fees and expenses incurred. Later, Atlanta Casualty decided not to assume and conduct any defense because General Accident was doing so. General Accident paid the expenses of defending the action and paid the $1,105.18 judgment entered against Adams, Jr.

When Atlanta Casualty proceeded with its declaratory judgment action, General Accident, Adams, Sr. and Adams, Jr. counterclaimed seeking damages for Atlanta Casualty’s failure to assume and conduct a defense for Adams, Jr. The trial court determined that the named driver exclusion was enforceable and that Atlanta Casualty had no duty to defend Adams, Jr. or to pay any judgment on his behalf. This Court reversed, finding that no justiciable controversy existed to support the trial court’s jurisdiction because Atlanta Casualty had denied coverage prior to filing suit. Adams v. Atlanta Cas. Co., 225 Ga. App. 482, 485 (1) (484 SE2d 302) (1997). We held, however, that the coverage issues relating to the counterclaims were not moot. Id. at 485-486. Upon remand, the trial court found the named driver exclusion to be enforceable and rejected the arguments that Atlanta Casualty had waived or was estopped from asserting its coverage defense. Held:

1. The trial court did not err in determining that the named driver exclusion unambiguously excluded Adams, Jr.

Where the terms and conditions of an insurance contract are clear and unambiguous, they must be given their literal meaning. United, States Fire Ins. Co. v. Capital Ford &c., 257 Ga. 77, 79 (1) (355 SE2d 428) (1987). Although ambiguous exclusions may be construed liberally in favor of the insured and strictly construed against the insurer, this cannot be done when the exclusion is clear and unequivocal. United Services Auto. Assn. v. Lail, 192 Ga. App. 487, 489 (1) (385 SE2d 424) (1989).

Decided October 30, 1998

Reconsideration denied November 16, 1998

Clark & Clark, Fred S. Clark, for appellants.

Brennan, Harris & Rominger, Edward R. Stabell III, for appellee.

Named driver exclusions, like the one here, which are clear, unambiguous and supported by consideration are enforceable and do not violate public policy or compulsory insurance laws. Ison v. State Farm Fire &c., 230 Ga. App. 554, 555 (496 SE2d 478) (1998); see Fountain v. Atlanta Cas. Co., 204 Ga. App. 165, 166 (1) (419 SE2d 67) (1992). Because the provision at issue clearly and unambiguously excluded Adams, Jr., its interpretation was a matter for the court. Middlebrooks v. Atlanta Cas. Co., 222 Ga. App. 785, 786 (476 SE2d 82) (1996).

2. The trial court was not required to determine whether Adams, Jr. was a permissive driver or knew that the policy excluded him. Having agreed to exclude Adams, Jr. from the policy, the policyholder cannot effectively revoke that exclusion by asserting that Adams, Jr. was a “permissive user” entitled to coverage. Ison, 230 Ga. App. at 556.

3. Atlanta Casualty did not waive its right to deny coverage and is not estopped from denying coverage. Atlanta Casualty provided written notice by certified mail that it was reserving its rights under the policy. Moreover, as a general rule, neither waiver nor estoppel may be used to create coverage under a policy of liability insurance except where an insurer assumes and conducts the defense without a reservation of rights. Prescott’s Altama Datsun v. Monarch Ins. Co. &c., 253 Ga. 317, 318 (319 SE2d 445) (1984); Andrews v. Ga. Farm Bureau Mut. Ins. Co., 226 Ga. App. 316, 317 (487 SE2d 3) (1997). Here, Atlanta Casualty did not retain counsel, file pleadings, or conduct a defense on behalf of Adams, Jr. Moreover, no evidence has been offered to demonstrate how General Accident’s participation in the tort case prejudiced Adams, Jr.’s defense. Prescott’s Altama Datsun, 253 Ga. at 319.

Judgment affirmed.

Johnson, P. J., and Smith, J., concur.


author: Andrews, Chief Judge.

text:
    A98A0810.
    BRUTON et al. v. DEPARTMENT OF HUMAN RESOURCES.
    (509 SE2d 363)
   Andrews, Chief Judge.

Rory Michael Bruton, acting as heir at law and administrator of the estate of his grandmother, Vera H. O’Brien, sued the Georgia Department of Human Resources (DHR) pursuant to the Georgia Tort Claims Act. He alleged that O’Brien’s death at a personal care home subject to DHR rules and regulations was proximately caused by the DHR’s negligence. The trial court granted summary judgment in favor of the DHR on the basis that sovereign immunity afforded to the DHR under the Georgia Tort Claims Act protected it from liability. Bruton appeals contending that sovereign immunity was not a defense under the circumstances.

In August 1994, O’Brien, who was 83 years of age, was admitted to the Ashton Hall Personal Care Home (the home), a personal care home licensed by the DHR and subject to rules and regulations promulgated by the DHR. OCGA §§ 31-7-12; 31-7-3; 31-7-2.1; 31-2-6; Rules of the Department of Human Resources, Chapter 290-5-35 (Personal Care Homes). The home was aware that O’Brien suffered from Alzheimer’s disease and that, because of the disease, she was prone to wander from her room and about the home. On January 29, 1995, O’Brien wandered unsupervised out of the home in cold weather into an adjacent construction area, where she fell face down into shallow water and mud and died. According to the medical examiner’s report, O’Brien died from “mechanical impairment of respiration and associated environmental exposure.”

Bruton’s suit against the DHR makes numerous claims of negligent action or failure to act by the DHR. Essentially, the suit alleges that: (1) the DHR was negligent in conducting or failing to conduct adequate inspections of the home, and (2) the DHR knew O’Brien was not physically or mentally suitable for residence in a personal care home and negligently failed to take action to protect her from the risks posed by her continued residence at the home. As to the second allegation, Bruton contends the DHR negligently failed to conduct its own reassessment of O’Brien’s condition pursuant to DHR Rule 290-5-35-.24 (3), and negligently failed to order an emergency relocation of O’Brien from the home to an appropriate facility pursuant to OCGA § 31-7-2.2 (a) (1).

In support of his claims, Bruton produced evidence of complaints about the home received by the DHR prior to O’Brien’s death and evidence of the DHR’s response to the complaints.

On October 5, 1993, the DHR completed investigation of a complaint that a resident of the home was in need of a level of care higher than that provided by a personal care home. Although the DHR found that the resident’s physical condition was at best marginal for residence in a personal care home, the investigation showed that the resident was receiving adequate care from a visiting nurse and home health aides. The DHR concluded that, in light of the resident’s improving physical condition and strong desire to remain at the home, it was appropriate that she remain at the home.

On April 5,1994, the DHR received a report from a social worker that a resident of the home might need nursing care, and therefore the home might not be an appropriate residence for this individual. The record shows that the DHR investigated this report, but there is nothing in the record indicating the results of the investigation.

On May 13, 1994, the DHR received a report from the Gwinnett County Solicitor’s Office indicating that, during a recent fire inspection of the home, fire inspectors observed violations of the fire code and saw at least two residents of the home who they believed might not be suitable for residence in a personal care home due to their medical or mental condition. A DHR memorandum dated June 10, 1994, in response to the report shows that two DHR employees, including a nurse, had recently visited the home and saw no problem. The DHR records also contained a subsequent fire safety inspection report on the home showing that the home was in compliance with fire safety requirements.

On December 7, 1994, a DHR nurse visited the home to investigate a complaint that a resident had not received assistance from the staff after falling inside the home. The nurse toured the entire home, reviewed residents’ records, and discussed with Curtis McGill, the operator of the home, various violations of DHR regulations and the requirements for compliance with the regulations. The DHR visit confirmed that the home had taken corrective action regarding the cause of the complaint, and that staffing at the home met minimum requirements. During the visit, the nurse reviewed records on O’Brien’s August 1994 admission to the home and talked to staff at the home about the level of care that O’Brien needed. The nurse noted that the admission records of some residents, including those of O’Brien, did not contain a physician’s report of a physical examination as required by DHR regulations. At the conclusion of the visit, McGill agreed to a plan of correction by which he would correct all the noted deficiencies in the records by January 31, 1995, including obtaining a physician’s report of a physical examination on all residents. McGill testified that, after the December 7, 1994 visit by the DHR nurse, Bruton provided him with a statement dated Decernber 15, 1994, from O’Brien’s physician stating that O’Brien had Alzheimer’s disease and that this condition made it necessary for her to live in a personal care home.

O’Brien was not in her room at the time of the December 7, 1994 visit, and the nurse could not recall whether she personally saw her. The record does not reflect that the DHR had knowledge that O’Brien suffered from Alzheimer’s disease, nor does it show that the DHR knew the extent of O’Brien’s physical or mental impairment. The DHR nurse stated that one purpose of the rule requiring that a resident’s admission records include a physician’s report of a physical examination is to show that the resident does not need a level of care higher than that provided in a personal care home. Although the lack of a physician’s physical examination report on O’Brien raised questions at the December 7, 1994 visit as to whether the home was an appropriate residence for O’Brien, the DHR nurse said she could not recall receiving any information during the visit that would have caused her to conclude that O’Brien needed continuous nursing care or some other higher level of care above the level of care provided by a personal care home.

After the DHR was informed of O’Brien’s death on January 29, 1995, it conducted another inspection of the home and issued a report on January 31, 1995. In the report, the home was cited for being one resident over capacity and for violation of regulations regarding insufficient staffing required to protect residents.

In moving for summary judgment, the DHR asserted the defense of sovereign immunity to all of Bruton’s claims. The 1991 amendment to Art. I, Sec. II, Par. IX of the Georgia Constitution of 1983 recognized that sovereign immunity was extended “to the state and all of its departments and agencies”; that such immunity “can only be waived by an Act of the General Assembly which specifically provides that sovereign immunity is thereby waived and the extent of such waiver[,]” and that “[t]he General Assembly may waive the state’s sovereign immunity from suit by enacting a State Tort Claims Act. . . .” Ga. Const. of 1983, Art. I, Sec. II, Par. IX (a), (e). Thereafter, the General Assembly enacted the Georgia Tort Claims Act (OCGA § 50-21-20 et seq.) which provided for a limited waiver of the state’s sovereign immunity and set forth exceptions to such waiver. OCGA §§ 50-21-23; 50-21-24. As a department of the state, the DHR is subject to the waiver and the exceptions set forth in the Georgia Tort Claims Act.

Section 50-21-24 of the Georgia Tort Claims Act enumerates 13 exceptions to the waiver of. sovereign immunity. In granting summary judgment in favor of the DHR, the trial , court concluded that the DHR was entitled to sovereign immunity from Bruton’s claims under exceptions (2) and (8) of § 50-21-24. Exception (2) provides that “[t]he state shall have no liability for losses resulting from: [t]he exercise or performance of or the failure to exercise or perform a discretionary function or duty on the part of a state officer or employee, whether or not the discretion involved is abused.” Under OCGA § 50-21-22 (2), “ ‘[discretionary function or duty’ means a function or duty requiring a state officer or employee to exercise his or her policy judgment in choosing among alternate courses of action based upon a consideration of social, political, or economic factors.” Exception (8) provides that “[t]he state shall have no liability for losses resulting from: ^Inspection powers or functions, including failure to make an inspection or making an inadequate or negligent inspection of any property other than property owned by the state to determine whether the property complies with or violates any law, regulation, code, or ordinance or contains a hazard to health or safety.”

Bruton concedes that, to the extent his claims state the DHR was negligent in conducting or failing to conduct adequate inspections of the home, the DHR was entitled to summary judgment on the basis of sovereign immunity under the inspection exception stated in OCGA § 50-21-24 (8).

As to the remaining allegations that the DHR knew it was dangerous for O’Brien to reside at the home and negligently failed to take action to protect her, Bruton contends the trial court erred in concluding that the DHR was entitled to summary judgment on the basis of sovereign immunity under the discretionary function or duty exception stated in OCGA § 50-21-24 (2). Bruton contends that no discretionary function or duty was at issue because, as defined by OCGA § 50-21-22 (2), a discretionary function or duty is limited to the exercise of a “policy judgment in choosing among alternate courses of action based upon a consideration of social, political, or economic factors.” Specifically, Bruton contends that there was no exercise of a “policy judgment” within the definition of discretionary function or duty when the DHR decided not to conduct its own reassessment of O’Brien’s condition pursuant to DHR Rule 290-5-35-.24 (3), and decided not to order an emergency relocation of O’Brien from the home to an appropriate facility pursuant to OCGA § 31-7-2.2 (a) (1).

Assuming O’Brien’s physical or mental condition made it inappropriate under DHR rules for her to reside in a personal care home, the record does not establish that the DHR knew she needed a level of care higher than that provided in a personal care home. See DHR Rules 290-5-35-.15; 290-5-35-.04 (c). The record shows that the DHR investigated complaints about the home prior to its last investigative visit on December 7, 1994, about seven weeks before O’Brien’s death. At the December 7, 1994 visit, the DHR nurse reviewed admission records, had conversations with the staff about residents’ care needs, and concluded there was a question about whether O’Brien and other residents met the criteria for residence in a personal care home. The nurse also noted that the records of some residents, including O’Brien, did not contain a physician’s physical examination report establishing suitability for personal home care when they were admitted to the home, as required by DHR rules. DHR Rule 290-5-35-. 15 (3). As a result of the December 7, 1994 visit, the DHR obtained an agreement by the administrator of the home to obtain the required physician’s physical examination reports no later than January 31, 1995. Although the record does not reflect that a physical examination report in compliance with DHR rules was obtained, the home did obtain a statement from a physician dated December 15, 1994, stating that O’Brien had Alzheimer’s disease, and that this condition made it necessary for her to live in a personal care home. Thereafter, O’Brien fell and died after wandering unsupervised from the home on January 29, 1995.

Under the circumstances, we conclude that the decision by the DHR to take the above action to determine if O’Brien was a suitable resident at the home rather than taking other action, including reassessing O’Brien under DHR Rule 290-5-35-.24 (3) or ordering emergency relocation under OCGA § 31-7-2.2 (a) (1), entailed policy judgments in which alternate courses of action were weighed in light of competing economic and social factors. Northwest Ga. Regional Hosp. v. Wilkins, 220 Ga. App. 534, 537 (469 SE2d 786) (1996); Jackson v. Dept. of Human Resources, 230 Ga. App. 595, 596 (497 SE2d 58) (1998); Dollar v. Olmstead, 232 Ga. App. 520, 523-524 (502 SE2d 472) (1998); OCGA § 50-21-22 (2). The decision in Dept. of Transp. v. Brown, 267 Ga. 6-7 (471 SE2d 849) (1996), which discussed the difference between governmental policy decisions entitled to discretionary immunity and design and operational decisions not entitled to immunity, was made in the context of road construction by the DOT and is distinguishable from the present case on its facts. Accordingly, in making these decisions, the DHR was performing a discretionary function or duty within the exception stated in OCGA § 50-21-24 (2) and was entitled to summary judgment on the ground of sovereign immunity.

Decided November 16, 1998

Blasingame, Burch, Garrard & Ashley, Andrew J. Hill III, Rikard L. Bridges, Christopher G. Conley, for appellants.

Thurbert E. Baker, Attorney General, Kathleen M. Pacious, Deputy Attorney General, Loretta L. Pinkston, Senior Assistant Attorney General, Marla-Deen Brooks, Assistant Attorney General, for appellee.

Bruton also contends the trial court erred in granting summary judgment to the DHR on the basis of sovereign immunity because, in response to the May 13, 1994 report on the home from the Gwinnett County Solicitor’s Office, a DHR employee said the DHR “would investigate the matter and take whatever steps were necessary to protect the residents of [the home].” Bruton contends this response constituted the DHR’s voluntary assumption of a noninspectionrelated duty to protect impaired residents of the home and rendered the DHR liable as a “Good Samaritan” for negligent failure to perform the assumed duty. See Community Fed. Sav. &c. Assn. v. Foster Developers, 179 Ga. App. 861, 865 (348 SE2d 326) (1986). Bruton apparently contends the DHR assumed a duty over and above any duty it had as a department of the state, and that sovereign immunity was no defense.

The DHR. did nothing more than indicate it would investigate the report and take whatever action it deemed necessary. We find no merit to Bruton’s contention that the DHR was liable as a “Good Samaritan.”

Judgment affirmed.

Smith, J., and Senior Appellate Judge Harold R. Banke concur.

       In addition to suing the DHR, Bruton sued the operator of the home, Curtis McGill, and Ashton Hall, Inc., the corporation which owned the home. Only the claims against the DHR are at issue in this appeal.

       In so ruling, we assume for purposes of this opinion that the DB3t could have ordered an emergency relocation of O’Brien pursuant to OCGA § 31-7-2.2 (a) (1). We reach no conclusion, however, as to whether the DHR was actually authorized to do so. Section 31-7-2.2 (a) (1) provides that “[t]he commissioner may order the emergency relocation of patients or residents from an institution subject to licensure under this chapter when the commissioner has determined that the patients or residents are subject to an imminent and substantial danger.” However, subsection (d) of § 31-7-2.2 further provides that “[t]he commissioner may issue emergency orders pursuant to this Code section only if authorized by rules and regulations of the department. ... [A]n emergency order is valid only if the order is authorized to be issued under this Code section and rules and regulations relating thereto.” OCGA § 31-7-2.2 (d). Although we find no specific provision in the DHR rules and regulations relating to personal care homes (Chapter 290-5-35) authorizing the commissioner to order the emergency relocation of residents, we make no decision as to whether these rules or other rules and regulations of the DHR would authorize such an emergency order.