text:
    A00A0282.
    VICKERS v. THE STATE.
    (527 SE2d 217)
   McMurray, Presiding Judge.

A Floyd County jury convicted defendant of two counts of child molestation for sexual acts directed at J. B., his stepdaughter. He was sentenced to 20 years confinement to serve 15 years, the remainder probated as to the first count, and to 20 years confinement on the second count to be served on probation consecutively. He now appeals, contending the evidence was insufficient to support his convictions because J. B.’s testimony was uncorroborated under the Child Hearsay Statute, OCGA § 24-3-16, as not supported by sufficient indicia of reliability. Held:

The evidence shows that in June 1997, a school counselor reported to the Department of Family & Children Services (DFACS) that 13-year-old J. B. had revealed that the defendant, her stepfather, gave her cigarettes on the condition she kiss him — a single cigarette for a kiss on the cheek, a package of cigarettes for a french kiss. J. B. also indicated that defendant supplied her alcohol and allowed her to drive in exchange for kisses. At trial, J. B. pertinently testified that defendant began these things when she was twelve, that within a year defendant began touching her breasts and vagina, while “shaking and breathing hard,” and on one occasion, failing in an attempt to have sexual intercourse with her after she had taken a shower. This testimony was consistent with that of Sergeant Terri Davis of the Floyd County Police Department who testified that upon interviewing J. B. before trial, J. B. spoke of similar events. The State’s attorney played an audiotape of such interview at trial, without objection, following J. B.’s testimony. Therein, among other things, J. B. corroborated her mother’s testimony insofar as her mother testified that upon confronting defendant with his actions, he admitted having oral sex with J. B., explaining that he loved her.

On appeal from a criminal conviction, the evidence must be construed in the light most favorable to the verdict, and the appellant (defendant here) no longer enjoys the presumption of innocence; moreover, an appellate court does not weigh the evidence or determine witness credibility but only determines whether the evidence is sufficient under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560). Conflicts in the testimony of the witnesses, including the State’s witnesses, [are] a matter of credibility for the jury to resolve. As long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State’s case, the jury’s verdict will be upheld.

(Citations and punctuation omitted.) Turner v. State, 223 Ga. App. 448, 449 (1) (a) (477 SE2d 847). The testimony of a victim of child molestation or aggravated child molestation need not be corroborated. Id. at 449 (1) (b); Toles v. State, 202 Ga. App. 815 (1) (415 SE2d 531); Saunders v. State, 195 Ga. App. 810-811 (1) (395 SE2d 53); Fitzgerald v. State, 193 Ga. App. 76 (2) (386 SE2d 914). Nevertheless, J. B.’s testimony was here corroborated by defendant’s admission of oral sex with J. B. to her mother. Even had this not been so, J. B.’s testimony standing alone would have been sufficient under the standard of Jackson v. Virginia, 443 U. S. 307, supra, to authorize the jury to have found the essential elements of the crimes in the case sub judice. Turner v. State, 223 Ga. App. at 449 (1) (b), supra; Dent v. State, 220 Ga. App. 147 (1) (469 SE2d 311). Inasmuch as this is the case, we need not address the sufficiency of the evidence under the Child Hearsay Statute, though we nonetheless conclude upon our review of the record that such evidence was properly admitted. Medina v. State, 234 Ga. App. 13, 14 (1) (a) (505 SE2d 558) (statutory requirement for finding that child/victim’s statement supported by sufficient indicia of reliability satisfied “ ‘if after both parties have rested, the record contains evidence which would support such a finding.’ . . . Gregg v. State, 201 Ga. App. 238, 239 (3) (a) (411 SE2d 65) (1991)”). See also James v. State, 270 Ga. 675, 676 (3) (513 SE2d 207) (a prior consistent statement, here the audiotape, is admissible where a witness’ credibility is in issue, “and that witness is present at trial, under oath, and subject to cross-examination. . . . Edwards v. State, 255 Ga. 149 (2) (335 SE2d 869) (1985)”).

Decided December 14, 1999.

William A. O’Dell, for appellant.

Tambra P. Colston, District Attorney, Fred R. Simpson, Assistant District Attorney, for appellee.

Judgment affirmed.

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

       The first of the counts of which defendant was convicted charged him with touching and fondling J. B.’s breasts and vagina; the second charged defendant with attempting to place his penis in J. B.’s vagina for the purpose of engaging in sexual intercourse.

       OCGA § 24-3-16 provides that
      [a] statement by a child under the age of 14 years describing any act of sexual contact or physical abuse performed with or on the child by another or performed with or on another in the presence of the child is admissible in evidence by the testimony of the person or persons to whom made if the child is available to testify in the proceedings and the court finds that the circumstances of the statement provide sufficient indicia of reliability.

       Though J. B. had left the stand at the time the audiotape was played, defendant’s right to a thorough and sifting cross-examination left her subject to recall for cross-examination. Martin v. State, 151 Ga. App. 9, 17 (8) (258 SE2d 711).


source: Caselaw Access Project

author: Andrews, Presiding Judge.

license: Public Domain

text:
    A99A0883.
    HALL v. THE STATE.
    (525 SE2d 759)
   Andrews, Presiding Judge.

Dr. Edwin Hall, Jr., a psychologist, appeals after denial of his motion for new trial following his conviction, along with his co-defendant Rickie Lewis, of conspiracy to defraud the State (OCGA § 16-10-21), Medicaid fraud (OCGA § 49-4-146.1), and theft by taking (OCGA § 16-8-2).*

The conspiracy count alleged that Lewis and Hall

beginning on or about March 1, 1994, and continuing through on or about April 3, 1995, did then and there, unlawfully, conspire and agree with another to commit the theft of money, property which belonged to the Department of Medical Assistance (“Medicaid”), an agency of the State of Georgia, and in furtherance of the conspiracy did perform the following overt acts. ...

Lewis alone was alleged to have committed the overt acts of incorporating We Care Family Services in February 1994; recruiting children who were Medicaid recipients for services represented to the parents and guardians as day care, after school programs, tutoring, and counseling services; “on multiple occasions, causing] fraudulent billings to be submitted to [Electronic Data Systems] for psychological services to these children that were not medically necessary and in excess of the number of psychological services that were actually provided”; and causing “Medicaid recipient files to be fabricated to show that psychological services were rendered on certain dates, when in fact the services were not rendered on those dates.”

Overt acts were alleged to have been committed jointly by Lewis and Hall in their entering an agreement that Hall would “provide psychological services at We Care Family Services,” applying for a Medicaid provider number to provide these services, and in accepting medical assistance payments from Medicaid, in “an amount greater than that to which they were entitled, for services billed by We Care Family Services.”

Hall alone was alleged to have committed the overt act of, from April 11, 1994 through April 3, 1995, “providing] psychological services to Medicaid recipients that were not medically necessary.”

The Medicaid fraud count alleged that Lewis and Hall

beginning on or about May 2, 1994, and continuing through on or about April 3, 1995, did obtain for themselves medical assistance payments to which they were not entitled, and in an amount greater than that to which they were entitled, ... by the following fraudulent scheme and device: the accused caused to be submitted on multiple occasions electronic billings to Electronic Data Systems, Inc., ... for psychological services to Medicaid recipients at We Care Family Services, that were not medically necessary and in excess of the number of psychological services that were actually provided to the Medicaid recipients. . . .

Viewed with all inferences in favor of the verdict, the evidence was that Lewis, who was not a psychologist, set up We Care Family Services, a nonprofit corporation, and was provided space by the Atlanta Housing Authority at Bankhead Courts and Hollywood Courts, two Atlanta public housing projects. Lewis represented to the Authority that We Care was a living skills program which used only private funding. Lewis and Pelham, one of We Care’s employees, went throughout the apartment complexes handing out flyers stating that We Care would provide computer training, a GED program, tutoring and counseling. Although none of these services were covered by Medicaid, Lewis and Tracey Pelham signed up numerous families and obtained the Medicaid numbers for all of the individuals in these families. The parents believed that the children were being signed up for after school and summer programs, which, they were told, would be paid for if they received public assistance. A few mothers also attended some of the computer training and GED sessions.

Jones, who was employed by a substance abuse program, was approached by Lewis and asked to do Medicaid billing for We Care. He gave her a legal pad with three or four pages of names, Medicaid numbers, and birthdays listed and asked her to bill for those names. At that point, he did not have a provider number, and no dates of service were listed. Jones advised Lewis that a provider number and dates of service were necessary for billing. Asked what codes of service she should bill under, Lewis told her to use the same ones she used for the substance abuse program, but she would not. Later, Lewis returned with the list and advised her that Hall was working with the program and gave her Hall’s provider number. Dates of service had also been added to the list, and Jones prepared the billing.

Hall was contacted by Lewis and became the psychologist for We Care in mid-April 1994, obtaining a Medicaid provider number for We Care locations. He provided Lewis with his power of attorney to be used for We Care, and all Medicaid billing was done by Lewis or at Lewis’ direction. We Care received its first Medicaid payment on May 2, 1994, and was deposited by Lewis in a bank account in his name, “d/b/a We Care Family Services, Inc.” Lewis then wrote checks to Hall for half of the amount received. Hall’s first payment was received on May 11, 1994.

Lewis back-billed Medicaid under Hall’s provider number for $76,000 worth of services performed before Hall even began with We Care, and Hall received half of that amount.

Jones only did the billing for Lewis for a short time, after which Lewis did the billing. After she quit in June 1994, she telephoned Hall and advised him of the back-billing and the codes Lewis had wanted her to use. Hall’s only response was that he had his own format and codes. Although Jones did not tell Lewis she had called Hall, Lewis telephoned Jones several weeks after the call, called her an obscene name, and threatened to sue her for slander.

After Hall began work with We Care in April 1994 and until January 1995, Pelham, employed by We Care, assisted him. While Pel-ham had an undergraduate degree in psychology and had some teaching experience, she was not a psychologist or specifically trained in psychological testing. Medicaid policies and procedures allowed for “auxiliary personnel” employed by a clinic or doctor’s office to conduct psychological evaluation and testing, but only under the direct supervision of a licensed psychologist. Psychotherapy, either group or individual, was to be conducted only by a licensed psychologist enrolled in the Medicaid program.

Pelham, however, prepared the paperwork for the files maintained for the children involved with We Care. She prepared an intake sheet and filled out the mental status examination and checklist forms. She was provided with a copy of the Diagnostic & Statistical Manual of Mental Disorders by Hall, and, in the fall of 1994, Hall gave Pelham and other lay workers with We Care a list of the most commonly diagnosed disorders with the appropriate codes for billing. All children involved were given a diagnostic code, although the parents were unaware of this. Also, the only psychological testing done was performed by Pelham without oversight by Hall. The majority of the tests were not scored and, therefore, were unusable for therapeutic purposes.

Groups of children were periodically gathered together by Pel-ham, Terika Ford, and Gwendolyn Marshall, also lay employees of We Care, for group therapy sessions. Hall attended these sessions only sporadically initially and did not enter any notes in the files. All note taking was done by Pelham, Ford, and Marshall. None of these women were trained or had any experience in this area. As Hall acknowledged, he instructed Pelham, Ford, and Marshall regarding note taking. He testified that it was not complex to be “able to follow these kind of cookbook directions in order to generate ongoing session notes.” Hall further acknowledged that, because Lewis maintained custody of these files, he never consulted or reviewed them. During these group sessions, described by various participants as “rap sessions,” the children had snacks, received minimal computer instruction, played, watched videos or just talked.

After another We Care employee was arrested by Georgia Bureau of Investigation agents in connection with a separate investigation, Hall and Lewis told We Care employees that it was very important that the files be up-to-date because the GBI was going to come for them. Hall told Pelham and others that the files had to be “up-to-date and up to par. It was very, very important that everything had to be matched into the files. . . . What they [Medicaid] was billed for had to match what was in the files.” Lewis told the women they would have to work all weekend on the files, and they did. Hall told them he had to go out of town and was not present when the files were supplemented. Lewis produced the billing sheets, and the women wrote out “session notes” for the files that matched what was billed. Pelham and Ford both testified they made up the notes.

After working all weekend on the files, Pelham told Hall that she was concerned about the situation. He told her he would try to regulate it and not to worry.

From May 1994 until April 1995, We Care was paid, under Hall’s provider number, $538,920.41 by 42 separate checks which combined numerous billings. This was only a portion of the total of $1,103,449.53 which was billed by We Care. The primary code given as a reason for nonpayment was that the number of contacts billed for a patient exceeded those allowed by Medicaid for one year.

The session supplementing the case files for the children occurred after Hall had been interviewed on September 24, 1994, by Investigator Pitts from the Georgia Department of Medical Assistance. While investigating another provider, Pitts received information that, over a 15-month period, Hall had received over $808,332.43 in payments for the three Medicaid provider numbers issued to him, including We Care.

Hall acknowledged that his “personal case file notes,” which he maintained separately from the case files, only originated in January 1995, after the investigation began. Hall nonetheless maintained during the trial that he did not know the claims filed by Lewis were being exaggerated.

Dr. John Currie, the State’s expert witness, testified that group counseling is most often appropriate for children nine years old or older, but may be done with exceptionally bright six-year-olds. At least a third of the 143 case files he examined were for children three years old or younger, including some only months old. Additionally, Dr. Currie found testing instruments present in a large majority of the files, including some infants, but they were not scored. Most of the language used in the files he examined was basically the same. In his opinion, of the files he examined, 75 percent of those diagnosed with a mental disorder should not have been. One hundred twelve of the 143 files reflected no complaint of the child having any mental illness.

1. Hall’s first two enumerations are that the court erred in failing to adequately charge the jury on “unanimity” to alleviate the dangers of duplicity and in failing to give his Request to Charge No. 15 on the issue. They are considered together.

OCGA § 16-1-7 (a) (2) prohibits multiple prosecutions, including the defect of duplicity.

“An accusation is duplicitous if it joins ‘separate and distinct offenses in one and the same count.’ (Cit.) ‘Duplicity’ is ‘the technical fault in . . . pleading of uniting . . . two or more offenses in the same count of an indictment. . . .’ (Cit.)” Peters v. State, 175 Ga. App. 463, 465 (1) (333 SE2d 436) (1985) (overruled on other grounds, Hogan v. State, 178 Ga. App. 534, 535 (343 SE2d 770) (1986)).

State v. Boyer, 270 Ga. 701, 703 (2) (512 SE2d 605) (1999).

If an indictment is duplicitous, it is subject to demurrer. State of Ga. v. Williams, 247 Ga. 200, 202-203 (2) (275 SE2d 62) (1981). While Hall filed a special demurrer below, its premise was that all three of the separate counts “allege the same conduct,” and therefore, the accused could not be subjected to multiple punishments. This is a different issue from that presented here. Further, at the hearing on the demurrer, Hall abandoned his request for a specific ruling on the demurrer and merely requested that the court reserve the issue of duplicity until trial. Therefore, nothing is presented here for our determination regarding either the validity of the ground contained in the demurrer or, as a basis for demurring, the argument made here. McKay v. State, 234 Ga. App. 556, 558 (2) (507 SE2d 484) (1998); Gatlin v. State, 18 Ga. App. 9 (6) (89 SE 345) (1916).

Hall’s Request to Charge No. 15 was that

[t]he indictment alleges a number of acts between March of 1994 through March of 1995. In order to find a defendant guilty, each juror must agree with each of the other jurors unanimously that the same act was, in fact, engaged in or employed by the defendant Hall in committing the crimes charged in Counts 1 through 3 of the indictment. Unless the government unanimously proves to your satisfaction the same means or method to each of you, beyond a reasonable doubt, you must acquit the defendant of the crimes charged in Counts 1 through 3 of the indictment.

The argument made focused on the fact that Lewis submitted a total of 4,761 claims on 42 separate occasions for 301 Medicaid recipients. Hall contends, apparently, that all the jurors were required to agree that a specific claim submitted was one to which We Care was not entitled or was for more than We Care was entitled in order to prove conspiracy and Medicaid fraud and that his requested charge was necessary in this regard. Acknowledging that there is no Georgia authority on the issue, Hall relies on two federal cases in support of his argument. These cases are of persuasive value only and not binding on this Court. Felker v. State, 252 Ga. 351, 361 (1) (314 SE2d 621) (1984).

“In order for a refusal to charge to be error, the request must be entirely correct and accurate, and adjusted to the pleadings, law, and evidence, and not otherwise covered in the general charge. [Cit.]” (Punctuation omitted.) Ogles v. State, 218 Ga. App. 92, 93 (1) (c) (460 SE2d 866) (1995).

Regarding the conspiracy charge, the request is inapposite because Hall could be convicted of conspiracy even if acquitted of the theft by taking and Medicaid fraud charges and even if the jury did not believe that Hall had committed the one overt act which he independently was alleged to have committed, as long as one act by Lewis was proven to the jury’s satisfaction. Thomas v. State, 215 Ga. App. 522, 523 (451 SE2d 516) (1994); see English v. State, 202 Ga. App. 751, 752 (1) (415 SE2d 659) (1992).

Further, Hall acknowledged that he did two of the overt acts alleged to have been jointly committed by him and Lewis, i.e., providing services at We Care and obtaining a Medicaid provider number.

We next consider the Medicaid fraud count, which was alleged to have been committed by submitting billings for services that were “not medically necessary and in excess of the number of psychological services that were actually provided. . . .”

Hall acknowledges that, when a crime may be committed in more than one way, it is permissible to incorporate the different methods in one count, conjunctively, as was done here. Lumpkins v. State, 264 Ga. 255 (1) (443 SE2d 619) (1994); Robinson v. State, 143 Ga. App. 37, 39 (3) (237 SE2d 436) (1977).

The crux of the charge of Medicaid fraud is the scheme to defraud pursuant to which money was received. In this respect, the crime is more similar to federal mail and wire fraud violations than to the perjury charges at issue in United States v. Holley, 942 F2d 916 (5th Cir. 1991), and United States v. Fawley, 137 F3d 458 (7th Cir. 1998), relied upon by Hall, and we do not find these cases persuasive.

Here, the court thoroughly explained the elements of the crimes charged, the indictment was read to the jury at least twice and was with them during their deliberations, and the court instructed that “whatever your verdict is, it must be unanimous. That is, agreed to by all of you.” This is the suggested pattern charge as compiled by the Council of Superior Court Judges of Georgia, and, as recently held by the Supreme Court, “[w]hen a legal issue involves such well-established principles as the definition of reasonable doubt, there are few, if any, circumstances which would justify a trial court’s failure to use the suggested pattern criminal charges. . . .” Coleman v. State, 271 Ga. 800, 805 (523 SE2d 852) (1999). We believe this likewise applies to the charge dealing with the need for unanimity.

Because, as discussed above, Hall’s requested charge was not “correct, legal, apt, and precisely adjusted” to the conspiracy charge, there was no abuse of discretion in the court’s not giving it with regard to the Medicaid fraud charge. “ Tf any portion of the request is inapt or incorrect, denial of the request is proper.’ (Emphasis in original.) Smith v. State, 209 Ga. App. 540, 544 (5) (433 SE2d 694) (1993).” Duncan v. State, 213 Ga. App. 394, 397 (6) (444 SE2d 583) (1994).

2. Hall’s third enumeration is that the court erred in denying his motion for directed verdict on the ground of the statute of limitation.

Although Hall filed a plea in bar based on OCGA § 17-3-1 (c), the four-year statute of limitation, during the pretrial hearing on the issue, he requested that the court reserve the issue for trial, which was done.

On appeal the evidence must be viewed in the light most favorable to support the verdict, and [Hall] 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.

(Citations and punctuation omitted.) Lester v. State, 226 Ga. App. 373, 376 (2) (487 SE2d 25) (1997).

Here, the indictment was returned on June 29,1998, and alleged that the crimes occurred between February 2,1994 and April 3,1995, but were unknown to the State until September 28, 1994, when Investigator Pitts spoke to Hall. Therefore, the statute was tolled until that time pursuant to OCGA § 17-3-2 (2), which provides that the limitation period does not include time during which “the crime is unknown.” The knowledge at issue is that of the State, including “that imputed to the State through the knowledge not only of the prosecution, but also includes the knowledge of someone interested in the prosecution, or injured by the offense. [Cits.]” (Punctuation omitted.) Greenhill v. State, 199 Ga. App. 218, 221 (6) (404 SE2d 577) (1991).

Hall acknowledges that such an issue is appropriate for jury consideration, as he requested. State v. Tuzman, 145 Ga. App. 481, 482 (2) (243 SE2d 675) (1978). Viewed under the standard set out above, the evidence showed that the victim was the Department of Medical Assistance. Pitts was investigating another psychologist for Medicaid fraud when he became aware that there were questions regarding Hall. While Hall contended that EDS had all the information necessary to know about the crime, the EDS representative testified that EDS did not audit the claims, but merely processed them. EDS knew nothing about We Care or the types of services being rendered.

It was only when Pitts interviewed Dr. Hall on September 28, 1994, that Pitts became aware that the number of client contacts necessary to have billed the amounts Hall billed was not possible and the investigation began in earnest. There was sufficient evidence from which the jury could decide that this was the first knowledge of the crime, and there was no error in denying the motion for directed verdict on this ground.

3. Hall’s final enumeration is that the trial court erred in admitting confidential patient records into evidence without first requiring the State to properly authenticate them or to lay an adequate foundation.

The objection made below was that “[t]hey have not been authenticated. There has not been an adequate foundation laid and we object.” There was no argument or objection made below on the confidentiality of those files, and this argument will not be considered here for the first time. Hindman v. State, 234 Ga. App. 758, 764 (4) (507 SE2d 862) (1998).

Decided November 19, 1999

Chilivis, Cochran, Larkins & Bever, Anthony L. Cochran, James D. Durham, for appellant.

J. Tom Morgan, District Attorney, Thurbert E. Baker, Attorney General, Doris Williams-McNeely, Harrison W. Kohler, Assistant Attorneys General, for appellee.

Also, no argument is made here regarding lack of foundation, and we do not consider this. Further, we note that, when the objection was made below, there was no statement of what the proper foundation would be, presenting nothing for appeal. Adams v. State, 264 Ga. 71, 74 (4) (440 SE2d 639) (1994).

We consider the argument that the records were not properly authenticated. GBI Agent Garner testified that, pursuant to a subpoena issued to Lewis, Lewis’ former attorney, Cook, provided her with 143 of the specified 145 recipient files subpoenaed. Service logs and group rosters were also turned over by Cook to Gamer.

Garner testified that these files were specified in the subpoena because they were for the recipients for whom We Care billed the largest amounts of money from Medicaid.

Authenticity may be shown by circumstantial evidence. State v. Smith, 246 Ga. 129, 130 (269 SE2d 21) (1980); Martin v. State, 135 Ga. App. 4, 7 (3) (217 SE2d 312) (1975).

Here, Lewis’ attorney turned the records over to the State; Hall acknowledged that he told Pelham, Ford, and Marshall how to take notes for the files and that all the files were maintained by Lewis; Pelham testified that she prepared most of the paperwork in the files; Pelham and Ford both testified that they helped falsify the records; and Hall did not dispute that Lewis had fabricated and inflated claims, only that he was not aware of it.

There was sufficient evidence to make a prima facie case of authenticity, and there was no error. Smith, supra; Weathers v. State, 198 Ga. App. 871, 872 (403 SE2d 449) (1991).

Judgment affirmed.

McMurray, P. J., a,nd F.uffin, J., concur.

       The theft by taking count merged with the Medicaid fraud count.

       EDS was the fiscal agent of the Department of Medical Assistance for processing Medicaid claims and reimbursing the providers.

       Hall also provided Medicaid-paid counseling services to two other groups, Referral Resources and Community Help & Counseling, as well as conducting a private practice in Dunwoody.

       Although Hall argues that Medicaid procedures allow a provider to bill for services rendered up to six months previously, there is no evidence that Medicaid allows one provider to bill for services perhaps provided by another provider. Hall contended that maybe Lewis was billing under Hall’s Medicaid provider number for services previously rendered by his predecessor psychologist, Dr. Lineberger.

       We note that, in Johnson v. State, 233 Ga. App. 450-451 (1), (2) (504 SE2d 290) (1998), this Court rejected a challenge by demurrer to an indictment which alleged one count of theft by deception based on four separate invoices as part of a scheme to obtain money under false pretenses.

        United States v. Fawley, 137 F3d 458 (7th Cir. 1998); United States v. Holley, 942 F2d 916 (5th Cir. 1991).


author: Ruffin, Judge.

text:
    A99A0795.
    In the Interest of J. L. T. et al., children.
    (524 SE2d 740)
   Ruffin, Judge.

The natural mother of J. L. T., S. M. T., and J. M. T. appeals an order of the trial court terminating her parental rights, arguing that the evidence was insufficient to support the termination and that the trial court erroneously admitted hearsay evidence. These contentions are without merit, and we affirm.

On January 26, 1995, appellant’s three minor children were taken into temporary custody of the Henry County Department of Family & Children Services (DFCS) pursuant to a consent order. The petition for custody alleged domestic violence and drug and alcohol use by the children’s parents. On February 2, 1995, a consent order was entered stipulating that the children were deprived. Over the next three and a half years, the mother and father were subject to seven separate court-approved reunification case plans. Each of these case plans identified several goals and prescribed specific steps to be taken to meet these goals. In June 1998, DFCS filed a petition to terminate both parents’ parental rights, alleging that they had failed to comply with the case plans. The father executed a voluntary surrender of his parental rights. A hearing on the termination petition was held on July 20 and August 24, 1998. On November 9, 1998, the trial court issued an order terminating both parents’ parental rights.

The first case plan covered the period from February until July 1995. Appellant complied with the plan provisions requiring her to use nonphysical forms of discipline, keep her home clean, and attend a parenting class, but violated a provision requiring her to refrain from making negative comments to the children about DFCS. During the period when the first case plan was in effect, appellant missed two of ten scheduled visits with the children.

The second case plan was in effect from July 24,1995 until January 1996. This plan required the parents to remain free of alcohol and narcotics. As a step to achieve this goal, the plan required both parents to submit to random drug tests, but DFCS did not ask appellant to submit to any such tests during the plan period. A second goal stated in the plan was that both parents would accept responsibility for their actions. With respect to this goal, appellant failed to attend individual counseling sessions as required by the plan. A third goal set forth in the plan was that the family would deal with the issues that led to the children being placed with DFCS. To achieve this goal, the plan required the parents and children to attend family counseling sessions scheduled by DFCS. However, DFCS did not in fact schedule any such counseling sessions during the second plan period. Two other plan goals related to securing financial support for the family and providing for the children’s financial needs. To achieve these goals, the plan required the parents to apply for Supplemental Security Income (SSI) benefits and to pay $75 per month child support to DFCS. Neither of these provisions was satisfied. A final goal was that the family maintain a bond, and to achieve this goal the plan required the parents to visit with their children. Appellant apparently did not miss any scheduled visits during the plan period.

A third case plan was in effect from January through July 1996. One of the conditions in this case plan was that appellant submit to at least one random drug screen per month. This condition was included based upon a recommendation in the mother’s psychological evaluation. Although DFCS on four occasions requested that appellant submit to a drug test, she refused to do so. The case plan also required appellant to keep in contact with her children through supervised visitation. With respect to the two daughters, J. L. T. and S. M. T, appellant attended only eight of twenty-five scheduled visits. With respect to the son, J. M. T., appellant attended only ten of twenty-one scheduled visits. On most occasions, appellant failed to contact DFCS 24 hours ahead of time to cancel a scheduled visit, as required by the case plan. According to Elizabeth Vineyard, the DFCS caseworker, the children became very upset when their parents would not show up for scheduled visits. A third goal of the case plan was that appellant demonstrate emotional and mental stability. To achieve this goal, appellant was required to attend counseling sessions with a DFCS-approved psychologist. Although the plan required such sessions to begin no later than January 31, appellant did not start counseling until May 16, 1996. She attended six counseling sessions from May through July. With respect to financial goals, the plan required the parents to pay $75 per month child support to DFCS and to either apply for SSI benefits or obtain full-time employment. Appellant did not satisfy either of these requirements.

A fourth case plan was in effect from July 1996 through January 1997. This plan required appellant to submit to one random drug screen per month upon DFCS’ request. Vineyard testified that she asked appellant to take a drug test on three separate occasions, and appellant refused each time. However, Vineyard testified that appellant did take three drug tests through Henry County Counseling Center during the plan period, and that she was provided with the test results, which were negative. A second case plan goal was that the children have contact with their parents. To achieve this goal, the parents were to attend scheduled visitation sessions with their children and were required to notify DFCS 24 hours in advance if they needed to cancel a session. Appellant missed eleven of twenty-seven scheduled visits with her two daughters and four of nine scheduled visits with her son. Again, appellant did not comply with the plan’s notice requirement for the missed visits, but would either fail to notify DFCS at all or call DFCS on the day of the visit. As with previous case plans, appellant was required to pay child support to DFCS, but failed to do so. She did, however, apply for SSI benefits in August 1996, although she did not seek full-time employment.

The fifth case plan was in effect from January until July 1997. This plan continued the goal of appellant being drug-free and required appellant to submit to one random drug screen per month. DFCS requested four drug tests, and appellant took one, which was negative. The plan also included as a goal that the children have contact with their parents and provided a schedule of supervised and unsupervised visits. With respect to the two daughters, appellant attended four of six unsupervised visits and six of eleven supervised visits. Appellant was not present when J. L. T. had surgery on her thumb, telling Vineyard that she was too upset to go to the surgery because she would not be allowed to take J. L. T. home afterwards. Appellant attended all 12 scheduled visits with her son, J. M. T.

The case plan also included as a goal that appellant demonstrate emotional and mental stability. To achieve this goal, she was to attend psychotherapy sessions at Henry County Counseling Center as recommended by the therapist. Although the psychotherapist recommended weekly sessions, appellant attended only one session during the six-month plan period. The plan also required appellant to continue treatment by an agency-approved psychiatrist, but she did not do so. The case plan also continued the goal that the children’s financial needs be met and required that appellant pay monthly child support as ordered by the court. However, the only child support paid was $300 from the father. Another case plan goal was that the family have sufficient income to meet living expenses. To meet this goal, the plan required appellant to follow up on her SSI application and seek full-time employment. Appellant apparently obtained employment for a brief period of time, although she did not provide verification of employment to DFCS as required by the plan.

The sixth case plan was in effect from July 1997 through January 1998. The first goal of this plan was that appellant be drug-free. DFCS requested that appellant take one drug test during this period, and the results were negative. The second goal was that the children have contact with their birth family, and the plan set forth a schedule of visitation. Appellant made six of twelve scheduled supervised visits with S. M. T. and nine of eleven scheduled visits with J. L. T. The plan also required that appellant have unsupervised visits with her two daughters, although this visitation was to be allowed only if appellant had (1) maintained a suitable residence for at least ninety days, (2) been in continuous family therapy for at least ninety days, and (3) been in continuous individual therapy for at least ninety days. Vineyard testified that no unsupervised visits were made because appellant did not satisfy the three conditions. Appellant was also to have scheduled visitation and family therapy with her son, J. M. T., every other weekend, but attended only four of eleven sessions. Vineyard testified that appellant did not contact DFCS 24 hours before a cancelled visit, as required by the plan.

A third goal was that appellant demonstrate emotional and mental stability. The plan required that appellant see a DFCS-approved psychotherapist and psychiatrist. Although appellant told Vineyard that she was going to therapy, she did not provide any verification of such therapy. Appellant paid no child support during the plan period as required. The plan required appellant to follow up on her SSI application and to seek full-time employment. Appellant obtained employment at a Waffle House during this period and provided DFCS with verification of the employment.

The seventh case plan was in effect from January 1998 through the termination hearing in July 1998. As with previous plans, this plan required appellant to submit to random drug tests. Appellant took one of two requested tests, and the results of the test were negative. The plan also set forth a schedule of supervised visits with appellant’s children. Vineyard testified that appellant attended four of twelve scheduled visits with J. L. T., five of seventeen scheduled visits with S. M. T., and four of seventeen scheduled visits with J. M. T. Appellant did not comply with a plan provision requiring her to notify DFCS 24 hours in advance if she had to miss a visit, but would usually call DFCS the day of the visit or afterwards. Appellant also failed to comply with the plan’s requirements that she see a psychotherapist and psychiatrist. Appellant failed to pay child support as required. With respect to the plan’s requirement that she seek full-time employment, appellant apparently obtained employment at a McDonald’s for a brief time but was fired after her SSI application was approved.

Laura Walsh, a therapist at Methodist Home in Macon, testified that she had been the case manager for S. M. T. since she was admitted to Methodist Home in September 1997. She testified that she sees S. M. T. daily, has individual therapy sessions with her three times a month, and has group therapy twice a week. She testified that she has observed recurring symptoms of major depression in S. M. T, including hypersomnia, crying, a wish to die, and a lack of self-esteem. She testified that S. M. T. also exhibited symptoms of post-traumatic stress disorder, including incidents in which she would drop into a fetal position and scream, ‘You are raping me, you are raping me, he hurt me.” S. M. T. also told Walsh that “she has intrusive thoughts of sexual abuse and physical abuse in her home.” Walsh testified that S. M. T. does well in school and can bond well with people — “She wants to be in a family, in a family setting. And the prognosis for her is good in a family setting.” She testified that S. M. T. was excited about the prospect of being placed in a therapeutic foster home.

Walsh testified that appellant had made only ten out of twenty-seven scheduled visits in the past year and only five out of twenty-one scheduled visits since January 1998. She testified that “[o]ut of the sixteen she didn’t make, we got three phone calls.” Walsh said that

[S. M. T.] deteriorates after these visits when mom doesn’t show up to the point of pulling her hair, scratching herself, having to be restrained, asking us to kill her, destroying things in her room. Those are things that she does not do any other time in the past six months.

On one occasion, S. M. T. thought her mother was dead because she had not heard from her, and Walsh had to call appellant so she could speak to S. M. T. Walsh testified that she did not think it would be beneficial to S. M. T. for her relationship with appellant to continue as it had for the past year.

Sandra Gardner, a therapist at Methodist Home, testified that she had been involved in J. M. T.’s treatment since May 1996 and had seen him three times a week for individual and group therapy from January through August 1998. She testified that J. M. T. exhibits symptoms of disruptive behavior disorder, including problems with authority and following rules. She also testified that J. M. T. has characteristics of impulse control disorder and attention deficit hyperactivity disorder, as well as problems bonding with people. She testified that appellant continuously failed to show up for scheduled visits and family therapy sessions, and that J. M. T. was “retrauma-tized” when his mother would fail to show up. She believed that it would be difficult for him to make continued progress “if things continue with the inconsistency in visitation with his mother,” and said that the relationship is “more harmful to him than it is beneficial.”

Susan Waddell, the social services supervisor for DFCS, testified that J. L. T., who had no major behavioral problems, had lived with a foster family for almost two years and considered it to be her family. She testified that the foster parents had expressed an interest in adopting J. L. T.

1. The decision to terminate parental rights involves a two-step process:

First, the juvenile court must determine whether there is clear and convincing evidence of parental misconduct or inability. This determination is based on a finding that the child is deprived, the lack of proper parental care or control by the parent is the cause of the child being deprived, the cause of deprivation is likely to continue or will not likely be remedied, and the continued deprivation will cause or is likely to cause serious harm to the child. Second, if the juvenile court finds clear and convincing evidence of parental misconduct or inability, the court considers whether termination of parental rights is in the best interest of the child. On appeal, we determine whether, viewing the evidence in a light most favorable to the lower court’s judgment, any rational trier of fact could have found by clear and convincing evidence that the natural parent’s rights to custody have been lost.

With respect to the first element, the prior unappealed deprivation orders, of which the trial court took judicial notice, establish that the children are deprived.

With respect to the second element, in determining whether there is an absence of proper parental care and control, the trial court is authorized to consider evidence of the parent’s “mental . . . or emotional neglect of the child.” In addition, where the child is not in the parent’s custody, the trial court may consider

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

In this case, there was evidence that appellant failed to comply with the terms of the reunification plans by, among other things, failing to attend counseling, failing to provide financial support, and, perhaps most importantly, failing to attend scheduled visitations with her children or to provide notice when she did not attend. With respect to J. M. T. and S. M. T., there was evidence that their mother’s failure to show up when expected would cause them great emotional pain and aggravate their fragile emotional states. Although appellant claimed that her absences were due solely to transportation or health problems, the trial court clearly found such explanation lacking in credibility given the number of absences and the mother’s repeated failure to give notice. Under the circumstances, we believe the trial court was authorized to conclude that the mother’s failure to maintain contact with her children demonstrated an indifference to their welfare and a lack of proper parental care and control.

With respect to the third element, the trial court was authorized to conclude that the cause of deprivation was likely to continue or would not likely be remedied. We have previously held that, “[a]lthough 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.” In this case, the court noted that appellant repeatedly failed to comply with the terms of the court-ordered reunification plans over a period of several years, in particular by failing to seek counseling and by failing to see her children, notwithstanding the fact that such conditions were repeatedly included in the plans. Appellant herself admits in her appellate brief that “as the case plans progressed, [her] participation with the goals and steps of each plan was diminished.” Although appellant promised to cooperate in the future, “[t]he decision as to a child’s future must rest on more than positive promises which are contrary to negative past fact.” The only arguments asserted by appellant in her brief on this issue are that she has lived in an adequate home for the past five months, that her claim for SSI benefits has been denied but is under appeal, and that she receives $75 per week alimony from her ex-husband. However, even assuming that appellant’s material situation does not support termination, this does not address the emotional neglect of her children as evidenced by her repeated failure to comply with court-ordered visitation, notwithstanding the effect of such failure on the children.

With respect to the fourth element, whether continued deprivation is likely to cause serious harm to the children, appellant makes no argument other than to assert that there was no expert evidence to that effect. However, there is no requirement that the likelihood of harm may be proved only by expert testimony. Moreover, with respect to S. M. T. and J. M. T., there was expert testimony regarding their mental problems and the effect of appellant’s failure to maintain contact with them. With respect to J. L. T., there was evidence that she has bonded with the foster family with whom she has been living for nearly two years, that she considered them to be her real family, and that her foster parents desired to adopt her. “This evidence supports a finding that [J. L. T] would suffer serious harm if returned to [appellant].”

Appellant does not challenge the trial court’s finding that termination of parental rights was in the best interest of the children. Moreover, we note that “[t]he same factors that support the finding of parental misconduct or inability can also support a finding that termination is in the children’s best interest.”* Accordingly, there was sufficient evidence to support the trial court’s termination of appellant’s parental rights.

2. During testimony regarding the fourth case plan, in effect from July 1996 to January 1997, Vineyard testified that appellant had cancelled most of the therapy sessions recommended by a DFCS-approved psychologist. Appellant contends that the trial court erred in admitting this evidence because it was based on records generated by Henry County Counseling Center and she was not able to cross-examine the person who prepared the record. Pretermitting whether this testimony, relating to a six-month period more than a year and a half before the termination hearing, constituted inadmissible hearsay, appellant has failed to show how admission of the testimony requires reversal. Appellant does not challenge the trial court’s findings that she failed to obtain required counseling throughout the course of the various case plans and that she was not participating in counseling at the time of trial. Because appellant has failed to show that admission of the testimony in question constituted harmful error, this assertion of error is without merit.

Judgment affirmed.

McMurray, P. J., and Andrews, P. J., concur.

Decided November 4, 1999

Reconsideration denied December 15, 1999.

William D. Patten, Jr., for appellant.

Thurbert E. Baker, Attorney General, Dennis R. Dunn, Deputy Attorney General, William C. Joy, Senior Assistant Attorney General, Shalen A. Sgrosso, Stephanie B. Hope, Assistant Attorneys General, Ernest D. Blount, for appellee.

       The trial court took judicial notice of these orders, although they are not contained in the record on appeal.

       Walsh testified at the August 24,1998 session of the termination hearing, while Vineyard testified at the July 20, 1998 session.

       (Citations omitted.) In the Interest of J. C., 237 Ga. App. 533-534 (515 SE2d 847) (1999). See OCGA § 15-11-81.

       See In Interest of J. M. W., 216 Ga. App. 166, 167 (453 SE2d 764) (1995).

       OCGA § 15-11-81 (b) (4) (B) (v).

       OCGA § 15-11-81 (b) (4) (C).

       See In the Interest of H. L. W., 229 Ga. App. 264, 266 (493 SE2d 637) (1997).

       (Punctuation omitted.) In the Interest of R. N., 224 Ga. App. 202, 204 (1) (c) (480 SE2d 243) (1997).

       (Punctuation omitted.) In the Interest of L. H., 236 Ga. App. 132, 136 (1) (511 SE2d 253) (1999).

        In the Interest of A. C., 230 Ga. App. 395, 398 (1) (496 SE2d 752) (1998).

       (Punctuation omitted.) In the Interest of J. B. A, 232 Ga. App. 345, 350 (501 SE2d 862) (1998).

       See In the Interest of V. S., 230 Ga. App. 26, 31 (2) (495 SE2d 142) (1997) (error must be harmful to be reversible).


author: Phipps, Judge.

text:
    A99A1004.
    CITY OF LITHIA SPRINGS v. TURLEY et al.
    (526 SE2d 364)
   Phipps, Judge.

In 1997, James and Thelma Turley brought this action against the City of Lithia Springs seeking a declaratory judgment dissolving the City because it was inactive. The trial court granted the Turleys’ motion for summary judgment and dissolved the City because it failed to provide, either directly or through contract, at least three of the municipal services required by OCGA § 36-30-7.1 (b) (1) for it to qualify as an active municipality. The City appeals the order granting summary judgment.

The trial court found that the City provided road and street construction or maintenance services. Because we find that the City also provided water supply services and that it established triable issues of fact with regard to the sufficiency of the consideration under its fire protection contract with Douglas County and to the adoption of its building and zoning codes, we reverse the summary judgment and vacate the order dissolving the City.

The City of Lithia Springs was originally chartered as Salt Springs in 1882. The name Salt Springs was changed to Lithia Springs in 1918; the town became inactive in 1933; and for the next 60 years, no one served as mayor or council and no council meetings were held; a suit for reactivation of the City was filed in 1993; and the City held elections in 1994. A mayor and five council members were elected and sworn into office in 1994. The General Assembly reincorporated the City by its act of April 8,1996. The act provided a new charter for the City under which it has perpetual duration.

Following its reactivation, the City entered into a series of intergovernmental contracts. These included a contract with the Douglas County Sheriff for law enforcement services (the “Law Enforcement Contract”) and contracts with Douglas County for the provision of fire protection and emergency medical services (the “Fire Protection Contract”), the enforcement of various building, plumbing and safety codes (the “Code Enforcement Contract”) and certain planning and zoning services (the “Zoning Services Contract”). The City also contracted for continuing operation within its corporate limits of water and sewer facilities with the Douglasville-Douglas County Water & Sewer Authority (the “Authority”) through its Agreement for Transfer of Water and Sewer Assets (the “Water and Sewer Contract”).

The Turleys filed this declaratory judgment action against the City on February 26, 1997, and subsequently moved for summary judgment. The City filed a cross-motion for summary judgment. The question before the trial court was whether the City was an active municipality. To be an active municipality, it must provide, either directly or by contract, at least three of the services listed in subsection (b) (1) of OCGA § 36-30-7.1. It is undisputed that the City complied with subsections (b) (2) and (3) with respect to certain meetings and the election of officials. The City contended that it provided the following services enumerated in OCGA § 36-30-7.1: (i) law enforcement, (ii) fire protection, (iii) water supply or distribution, (iv) enforcement of building, housing, plumbing, electrical and other similar codes, (v) planning and zoning, (vi) recreational facilities and (vii) road or street construction or maintenance. The trial court found that the City provided road and street construction or maintenance, but no other services. Because the trial court found that the City failed to provide at least three of the services enumerated in subsection (b) (1), it granted summary judgment to the Turleys, found the City to be inactive and, as directed by OCGA § 36-30-7.1 (j), ordered the City to be dissolved.

In ruling on a motion for summary judgment, the court should give the opposing party the benefit of all reasonable doubt and should construe the evidence and all inferences and conclusions arising therefrom most favorably toward the party opposing the motion. On appeal of the grant of summary judgment, we must determine whether the trial court erred in concluding that no genuine issue of material fact exists and that the Turleys are entitled to summary judgment as a matter of law. Our review is de novo.

1. The City argues that the Turleys have no standing to bring this declaratory judgment action. Although this Court considered, in Sherrer v. City of Pulaski, the question of whether a city met the minimum standards for maintaining a charter under OCGA § 36-30-7.1, we have never ruled on the question of standing to bring an action for declaratory judgment under this Code section. The City claims that subsection (j) applies only to those municipalities which the Georgia Department of Community Affairs (the “DCA”) omitted from the list of inactive and active municipalities compiled pursuant to this Code section. Under subsection (f), the DCA was required to publish a list of cities whose legal existence would be terminated on July 1, 1995, and those whose legal existence would not be terminated. The record shows that the DCA included the City in its list of active municipalities. However, this Code section allows any citizen of the municipality or county in which the municipality is situated to bring a declaratory judgment action to dissolve a municipality in “any case in which the legal dissolution of a municipal corporation has not been certified.” Subsection (j) does not contain the limitations urged by the City.

The Georgia Municipal Association (the “GMA”), in an amicus brief, notes that OCGA § 36-30-7.1 provides that the list of active and inactive municipalities compiled by the DCA “is conclusive evidence, acceptable in any court and recordable in any public records, of the termination or continuation of existence of a municipal corporation.” The GMA maintains that subsection (f) operates to prevent future questioning in any court of a city’s continued existence, so long as the city appeared on the DCA’s list of cities which were “not terminated.” However, the list compiled by the DCA only establishes the status of municipalities on July 1, 1995. On and after July 1, 1995, the charter of any municipal corporation in the state is subject to repeal by operation of law upon failure to maintain the minimum standards established by OCGA § 36-30-7.1. The plain language of the Code section gives the Turleys standing to bring this declaratory judgment action.

2. The trial court found the Fire Protection Contract void in violation of the Georgia Constitution’s prohibition against gratuities. Art. Ill, Sec. VI, Par. VI (a) of the Georgia Constitution provides, in part, “The General Assembly shall not have the power to grant any donation or gratuity.” The provision is also applicable to cities and counties. When examining whether a contract provided an improper gratuity by a county, the courts have asked if the county received substantial benefits.

The Fire Protection Contract provides for a number of services, including fire protection services, detection and prevention of arson, enforcement of fire regulations, fire prevention education and emergency medical services, to be provided to the City by Douglas County. In return, the City is required to remit to Douglas County an amount equal to the cost of emergency medical services provided for the City at the rate Douglas County charges for those services in unincorporated areas. An initial cost schedule for the emergency services is attached to the contract. The trial court found that the City’s payment obligation provided consideration only for the emergency medical services provided by Douglas County, that the fire services were provided by Douglas County for no consideration, and thus the contract was in violation of the prohibition against gratuities. However, the Fire Protection Contract, under its terms, assigns the monetary consideration to be provided by the City to all of the services to be provided by Douglas County. The City’s consideration under the contract need only provide substantial benefits to Douglas County in order to avoid an improper gratuity with respect to the fire protection services. The City’s reliance on the consideration provided by the transfer of fire equipment to the Douglas County Fire Department is misplaced because the equipment came from the “People of Lithia Springs” and not from the City.

Genuine issues of material fact exist about whether Douglas County is receiving substantial benefits under the Fire Protection Contract, and further evidence is needed to establish whether it is receiving more than a nominal amount of money.

3. The trial court found the Law Enforcement Contract void in violation of the prohibition against gratuities and in violation of OCGA § 15-16-13, which regulates the manner in which municipalities may contract with county sheriffs for the provision of law enforcement services. The statute requires municipalities to reimburse a county on a cost basis for services provided by the county sheriff. The Law Enforcement Contract requires that the City pay only a nominal fee for the law enforcement services provided by the Douglas County Sheriff and, thus, is in violation of the statute. The City does not present any arguments to the contrary. The trial court correctly found that the City did not provide law enforcement services on its own or through a lawful contract. We need not consider whether the Law Enforcement Contract was void in violation of the prohibition against gratuities.

4. The City claims that the trial court could not adjudicate the contractual rights of Douglas County, a nonparty. But the City chose not to move to dismiss the action for failure to join Douglas County as an indispensable party and has waived any right to complain now that Douglas County is a nonparty to the suit.

In a separate assertion of error, the City challenges the standing of the Turleys to attack the validity of the intergovernmental contracts. The action here was for declaratory judgment and not an action on a contract under OCGA § 9-2-20, as the City implies. The intergovernmental contracts were reviewed by the trial court only within the context of whether the City had, through the contracts, provided the services enumerated in subsection (b) (1) of the Code section.

5. The City claims that the prohibition against gratuities is not available to void an intergovernmental contract specifically authorized under the Georgia Constitution. We find it is unnecessary to rule on this constitutional question here, because we have reversed the grant of summary judgment on other grounds.

6. The trial court found that the City failed to provide service for the “[e]nforcement of building, housing, plumbing and electrical and other similar codes. . . ,” Its ruling is based on two grounds. First, the trial court found the City failed to present proof that it had adopted a building code. Second, the trial court held that the City had presented no evidence that it enforced its building code.

The City’s adoption of a building code is in dispute. From the record it is not clear whether the code entitled “Chapter 6, Buildings; Construction and Related Activities” was adopted by the City at its October 20, 1994 meeting. We find, however, that the City presented sufficient evidence to create an issue of triable fact on whether it had adopted a building code.

The Code Enforcement Contract indicates that the City intended that Douglas County enforce the City’s building code, but that Douglas County was obligated to enforce the code only when the City either established a municipal court or contracted with Douglas County’s chief magistrate for municipal court services. The trial court acknowledged that the City established a municipal court in 1998, the calendar year after this action was filed. The trial court looked only to the date that the declaratory judgment action was filed to determine whether the City provided enforcement services. In this case, however, the declaratory judgment should speak to the status of the City as of the date of the judgment because that is the date the City was declared inactive and its charter dissolved. It was incumbent on the trial court to consider all of the evidence in the record before it, including those events occurring after the date that the Turleys filed the action. Given that the City did establish a municipal court, the Code Enforcement Contract would be sufficient to provide enforcement services, so long as the City can establish that it has adopted a building code.

7. The trial court found that the City did not provide water supply services. Under the Water and Sewer Contract, the Authority agreed to continue to operate the water and sewerage system facilities within the City. In return, the City agreed to divest and transfer to the Authority any legal interest it may have had in the water and sewer facilities within the corporate limits of the City. The trial court found that there was no consideration for the Water and Sewer Contract inasmuch as the City owned no water or sewer facilities that it could transfer, and that the Water and Sewer Contract did not provide a service to the City. The court also referred to an affidavit of the Authority’s director as evidence that the'Authority had no service contract with the City.

The Water and Sewer Contract obligated the Authority to continue to operate the water and sewer facilities in the City in the same manner as they were currently operated. This is an obligation of the Authority under the terms of the contract to provide water and sewer services, and the affidavit of the Authority’s director cannot act to alter its meaning. The trial court’s finding that the City did not have any interest in water and sewer facilities within its borders at the time the Water and Sewer Contract was entered into is not dis-positive. The Authority could not have been certain of the City’s legal interest in the facilities. Forbearance to prosecute a legal claim and compromise of a doubtful right constitute consideration sufficient to support a contract. Furthermore, the Water and Sewer Contract is “for and in consideration of the sum of $10.00 and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged,” and the contract is sealed. “[N]ominal consideration recited in sealed instruments is sufficient as a matter of law. [Cits.]” We find the City provided water supply services through the Water and Sewer Contract for purposes of subsection (b) (1) of OCGA § 36-30-7.1.

8. The trial court found that the City had not provided recreational facilities. The City had agreed to provide $1,000 in matching funds for a $5,000 grant application with the Atlanta Regional Commission for the implementation of bicycle and pedestrian path projects within the City. The City argues that to “provide,” for purposes of OCGA § 36-30-7.1, would include “to make advance preparations for.” In this case, the record shows only that the City had a bicycle and pedestrian path plan, and that it was seeking money to implement it. But the Code section speaks of the provision of “recreational facilities,” and the evidence does not show that the City provided any recreational facilities.

9. The trial court acknowledged that the City adopted a comprehensive zoning plan at its March 14, 1996 meeting. The City contracted with Douglas County to provide enforcement of its zoning ordinances. As in the case of the Code Enforcement Contract, Douglas County was not obligated to enforce the City’s zoning ordinance until the City established a municipal court or had entered into a valid contract with the Douglas County magistrate for the provision of municipal court services. However, the Zoning Services Contract expired by its terms on December 31, 1995.

The trial court held that “Without enforcement, there is no zoning.” OCGA § 36-30-7.1 (b) (1) (J) requires only that a municipality provide “planning and zoning.” The trial court misconstrued the statute by requiring that enforcement of zoning be shown to establish “planning and zoning” services. OCGA § 36-30-7.1 specifically requires enforcement of the building code as an enumerated service, but not enforcement of planning and zoning. However, inasmuch as the City established its municipal court in 1998, and the record shows that the City Council regularly considers zoning matters, the tools of zoning enforcement are in place.

The trial court implied in its order that the City had not adopted a valid zoning ordinance. But there appears to have been a city council meeting in October 1994 for the purpose of adopting a city code, including a zoning ordinance. The record shows that at a city council meeting on September 24, 1998, a “request for zoning on case 98-04” was scheduled. On October 8, 1998, there was a council “vote on a zoning variance for the New Fellowship Church parking lot.” The City has established a triable issue of fact regarding the adoption of a zoning ordinance. The trial court erred in finding, for purposes of summary judgment, that the City did not provide “planning and zoning.”

Decided November 30, 1999

Reconsideration denied December 15, 1999

David M. Williams, for appellant.

Scott K. Camp, for appellees.

The trial court found that the City provided road or street construction or maintenance services. We find that the City also provided water supply services. There are material issues of fact with regard to whether the City provided fire protection services, enforcement of its building code or planning and zoning services. Therefore, the Turleys were not entitled to summary judgment on the question of whether the City was inactive under OCGA § 36-30-7.1. The order of the trial court dissolving the City of Lithia Springs is hereby vacated, and the court’s finding of summary judgment in favor of the Turleys is reversed.

Judgment reversed.

McMurray, P. J., and Andrews, P. J., concur.

       Ga. L. 1996, p. 4319.

        Moore v. Goldome Credit Corp., 187 Ga. App. 594, 596 (370 SE2d 843) (1988).

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

        Walker v. Virtual Packaging, 229 Ga. App. 124 (493 SE2d 551) (1997).

       228 Ga. App. 78 (491 SE2d 129) (1997).

       “In any case in which the legal dissolution of a municipal corporation has not been certified under the provisions of subsection (0 of this Code section but the municipal corporation does not in fact meet the minimum standards for determining an active municipality enumerated in subsection (b) of this Code section, any citizen of the municipal corporation or the county in which the legal situs of the municipal corporation is located may bring at any time on or after July 1, 1995, a declaratory judgment action for a declaration of the dissolution of the municipal corporation.”

       OCGA § 36-30-7.1 (f).

       OCGA § 36-30-7.1 (j).

       OCGA § 36-30-7.1 (f).

       “On and after July 1, 1995, any municipal corporation in this state shall be deemed an inactive municipality and its charter shall be repealed by operation of law if the municipal corporation fails to meet any of the minimum standards provided in subsection (b) of this Code section for determining an active municipality.” (Emphasis supplied.) OCGA § 36-30-7.1 (a).

        Grand Lodge &c. v. City of Thomasville, 226 Ga. 4, 7 (3) (b) (172 SE2d 612) (1970).

       See Smith v. Bd. of Commrs. &c. of Hall County, 244 Ga. 133, 140 (2) (259 SE2d 74) (1979).

       OCGA § 9-11-12 (h) (2).

       Art. EX, Sec. Ill, Par. I.

       See Wright v. Robinson, 262 Ga. 844, 846 (2) (426 SE2d 870) (1993); Grayer v. Hagler, 181 Ga. App. 662 (353 SE2d 545) (1987).

       OCGA § 36-30-7.1 (b) (1) (I).

       Here, the declaratory judgment action to dissolve the City was filed less than a year following its reincorporation by the General Assembly.

       The consideration provided by the City to the Authority was not examined by the trial court in the context of the prohibition against gratuities, because the Authority was a public corporation to which the prohibition against gratuities has not been extended.

       See McCann v. Glynn Lumber Co., 199 Ga. 669, 674 (1) (34 SE2d 839) (1945) (parol evidence may not alter unambiguous terms of written contract).

        Wolfe v. Breman, 69 Ga. App. 813, 817 (1) (26 SE2d 633) (1943).

        Jolles v. Wittenberg, 148 Ga. App. 805, 807 (2) (253 SE2d 203) (1975).

       OCGA § 36-30-7.1 (b) (1) (I).


author: Ruffin, Judge. McMurray, Presiding Judge,

text:
    A99A1023.
    FUTCH v. SUPER DISCOUNT MARKETS, INC.
    (526 SE2d 401)
   Ruffin, Judge.

Patricia Futch sued Super Discount Markets, Inc. d/b/a Cub Foods for injuries she allegedly sustained when she slipped and fell in a Cub Foods supermarket. The trial court granted Cub Foods’ motion for summary judgment, and Futch appeals. For reasons discussed below, we affirm.

For a plaintiff to recover for injuries sustained in a slip and fall action, she must prove that the defendant had actual or constructive knowledge of the hazard and that the plaintiff lacked knowledge of the hazard despite the exercise of ordinary care due to actions or conditions within the control of the defendant. The plaintiff must also prove that the hazard was in fact the cause of her injuries. In considering a motion for summary judgment, the facts and all reasonable inferences therefrom are to be construed in the light most favorable to the nonmovant. Summary judgment in favor of a defendant is appropriate where no jury issue exists on at least one element of the plaintiff’s case.

Futch testified that, on October 15, 1996, she and a friend went shopping at a Cub Foods supermarket. Upon entering the store, Futch went to the magazine rack and began looking at magazine covers. To the right of the magazine rack was another display. As Futch was standing looking at the magazines, she fell backward onto the floor. Futch never testified that she felt anything slippery under her feet when she fell. When asked if she knew what caused her fall, Futch testified as follows:

A. Oh, well, when I was down on the floor, I looked around to see. I was really shocked, what happened. One minute I’m looking at the magazines, and the next minute I am looking at the ceiling. And I saw some water or clear fluid. I can’t say that it was water. I don’t know that.
Q. Okay. Where did you see the clear fluid?
A. Actually, it was beyond me. And I saw two larger, two other puddles on the floor. And I just surmised that that’s what I had slipped in as well.

When questioned about the two puddles, Futch admitted that they were in front of the other display, “a little distance from where I was.” It did not appear to Futch that either of these puddles had been disturbed, and she admitted that she had not crossed in front of the other display before her fall. Although Futch referred to the two puddles as “two other puddles,” Cub Foods’ counsel attempted to clarify whether Futch in fact noticed any other puddles that might have caused her fall. ,He asked Futch, “Did you see any clear liquid in front of the magazine rack at any time?” Futch responded, “No.” He had Futch draw a diagram of the scene, and the only puddles she identified were the two in front of the other display. He questioned Futch as follows:

Q. [A]fter you stood up . . . did you look at the floor where you had just fallen?
A. I think it was while I was sitting down. And I looked around to see what happened, because there had to be some reason why I wasn’t still in the upright position.
And that’s when I realized the floor was wet.
Q. When you looked around at the floor, did you see anything other than the two puddles in front of this other display that you thought caused you to slip and fall?
A. No.

At one point, Futch seemed to suggest that there might have been another puddle where she was standing, although her testimony was very equivocal:

Q. When you stood up, could you see the puddles of liquid there?
A. When I was in the sitting position is when I saw these other two puddles. But as far as the liquid where I was standing, I don’t remember when I saw that.
Q. But you could see it from the standing position? You just don’t remember when?
A. I don’t remember ever seeing it, to be honest with you, other than when I was already on the floor. I either felt it or saw it. I don’t actually remember how I determined. But when I saw these other two, I remember looking up to see if there was any air conditioner ventilation that could cause condensation.

However, when questioned further, Futch testified as follows:

Q. And again, other than these two puddles, you didn’t see any other puddles in this area?
A. No.
Q. And you didn’t feel any liquid on the front of the magazine rack?
A. Not that I remember. You know, even when I was on the floor, I couldn’t even remember that.

Futch testified that she did not recall getting any liquid on her hands or clothes. Thus, the only suggestion of any liquid in the area where she fell is Futch’s ambiguous testimony that she did not know how she determined any liquid was present. However, this is contradicted by Futch’s unambiguous testimony that she did not see or feel any liquid in the area where she fell.

Futch testified that she pointed out the puddles of water to the store’s closing manager, Ray Morris. In his affidavit, Morris stated that he looked in the area after Futch fell and saw two small spots of water, although there were no prints in these water spots. Morris stated that three men had been involved in an altercation in the magazine area about ten minutes before Futch’s fall. He stated that he inspected the area after the altercation and found nothing on the floor. According to Futch, Morris told her that the men involved in the altercation “must have spilled some water.”

Futch contends that summary judgment was improper because issues of fact remain as to whether Cub Foods had superior knowledge of the puddles of liquid on the floor. However, regardless of the parties’ respective knowledge of these puddles, Futch must show that these puddles in fact caused her fall. As we recognized in a recent slip and fall case,

[i]t is axiomatic that a plaintiff in a negligence case can prevail only if she shows that a defendant’s negligence caused her injuries. ... A mere possibility of such causation is not enough; and when the matter remains one of pure speculation or conjecture, or the probabilities are at best evenly balanced, it becomes the duty of the court to grant summary judgment for the defendant. Likewise, it is a well settled principle of negligence law that the occurrence of an unfortunate event is not sufficient to authorize an inference of negligence.

Although the evidence shows that there were two puddles of liquid in the area near where Futch fell, Futch’s testimony establishes that these puddles were in fact located in front of a different display. Futch did not walk through these puddles while approaching the magazine rack, and both Futch and Morris testified that these puddles did not appear to have been disturbed. Thus, there is no evidence that these two puddles contributed in any way to Futch’s fall.

The dissent contends that there is evidence of a third puddle in the area where Futch fell. It is true that Futch’s testimony was somewhat confusing, particularly her use of the phrase “two other puddles.” However, although she was repeatedly questioned about what she noticed, she never clearly testified that she noticed any liquid in the area where she fell. When first asked where she saw any liquid, she responded, “Actually, it was beyond me,” and then went on to mention the two “other” puddles. To the extent that this statement implies the existence of a third puddle, it does not suggest that such puddle was in the area where Futch fell. The closest Futch came to claiming she noticed liquid in the area where she fell was her testimony that “I don’t actually remember how I determined” that there was liquid “where I was standing” — “I either felt it or saw it.” However, this fuzzy, negative testimony was contradicted by Futch’s unambiguous testimony that she did not see or feel any liquid in front of the magazine stand.I Moreover, Futch unequivocally testified that she did not see any puddles, other than the two in front of the other display, that she thought might have caused her fall. In her appellate brief, Futch does not claim that she noticed any liquid other than the two puddles in front of the other display — indeed, the brief merely states that she “noticed two puddles of clear liquid near where she fell.” In any event, to the extent that her deposition testimony is contradictory regarding whether she noticed any liquid in the area where she fell, the favorable portion of her testimony must be disregarded, as no explanation is given for the contradictions.

We do not believe that the mere presence of two undisturbed puddles near the area of her fall raises an issue of fact as to whether Futch might have slipped in a different puddle of liquid, particularly in light of Futch’s direct testimony that she saw no liquid on the floor where she fell and noticed no liquid on her hands or clothes. Futch did not testify that she felt anything slippery under her feet at the time of the fall — she simply testified that “[o]ne minute I’m looking at the magazines, and the next minute I am looking at the ceiling.” “[P]roof of nothing more than the occurrence of the fall is insufficient to establish the proprietor’s negligence.” “[W]hether [Futch] slipped on something or nothing at all is subject only to speculation. . . . Because [Futch] failed to point to any evidence establishing the essential element of causation, the trial court properly granted summary judgment to [Cub Foods].”

Judgment affirmed.

Johnson, C. J., Pope, P. J., Andrews, P. J., and Smith, J., concur. McMurray, P. J., and Eldridge, J., dissent.

McMurray, Presiding Judge,

dissenting.

I respectfully dissent from the affirmance of summary judgment in favor of defendant Super Discount Markets, Inc. d/b/a Cub Foods in this slip and fall action brought by plaintiff Patricia Futch. First, plaintiff never contradicted herself about the cause of her fall; rather, she steadfastly maintained only that she did not see any fluid at the spot where she fell, before her tumble. Consequently, I disagree this is a proper case to apply the rule of Prophecy Corp. v. Charles Rossi-gnol, Inc., 256 Ga. 27, 30 (2) (343 SE2d 680). Thus, when the entire record is reviewed in the light most favorable to Futch as nonmovant, the evidence clearly authorizes the favorable inference that she slipped in a third puddle of clear fluid, located where she had been standing while looking at magazines on display. At her deposition, Futch testified that, when she was down on the floor, she “saw some water or clear fluid. . . . And [she] saw two larger, two other puddles on the floor . . . about 10 to 12 inches in diameter.” (Emphasis supplied.) Plaintiff’s “[fleet were towards where the two other puddles were. In other words, here’s the magazine rack, and here’s the other two puddles. . . .” Although plaintiff never did “see any clear liquid in front of the magazine rack at any time[,] . . . [she nevertheless] realized the floor was wet.” Plaintiff also testified that the night manager, Morris, said to her “some young men — ‘that had a fight there earlier, and they must have spilled some water.’ ” Plaintiff pointed out to Morris the area where she fell and the puddles of water or liquid. She further explained that, when she stood up after having fallen, she “didn’t see the puddles of water on the floor again. But that’s just because [she] didn’t look.” Consequently, I respectfully disagree with the majority’s conclusion that this case is based solely on speculation and conjecture. Although Morris deposed that he checked the area after the fight (about ten minutes before plaintiff’s fall) and determined there was nothing on the floor, the trier of fact is authorized to conclude he looked carelessly because he failed to discern the two nearby puddles that were indisputably extant after plaintiff’s fall. In my view, this case is controlled by the recent decision of the Supreme Court of Georgia in Robinson v. Kroger Co., 268 Ga. 735, 748 (2) (b) (493 SE2d 403), reaffirming the old rule that the routine issues of premises liability are generally not susceptible of summary adjudication unless the evidence is plain, palpable, and undisputed. Here, the evidence of defendant’s knowledge is in conflict, and so I respectfully dissent from the affirmance of summary judgment.

Decided December 1, 1999

Reconsideration denied December 15, 1999.

Roy S. Mullman, for appellant.

Drew, Eckl & Farnham, Andrew B. Koplan, George R. Moody, for appellee.

I am authorized to state that Judge Eldridge joins in this dissent.

       Cub Foods’ motion to dismiss this appeal due to defects in Futch’s brief is denied. See Bruce Tile Co. v. Copelan, 185 Ga. App. 469-470 (1) (364 SE2d 603) (1988).

        Robinson v. Kroger Co., 268 Ga. 735, 748-749 (493 SE2d 403) (1997).

       See Christopher v. Donna’s Country Store, 236 Ga. App. 219, 220-221 (1) (511 SE2d 579) (1999).

        Matjoulis v. Integon Gen. Ins. Corp., 226 Ga. App. 459 (1) (486 SE2d 684) (1997).

        Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

       (Citations and punctuation omitted.) Christopher, supra at 220 (1). See also Alterman Foods v. Ligon, 246 Ga. 620, 625 (272 SE2d 327) (1980) (“Falling and injuring one’s self proves nothing. Such happenings are commonplace wherever humans go.”).

       Quoting from deposition testimony, the dissent states that “[although plaintiff never did ‘see any clear liquid in front of the magazine rack at any time[,] . . . [she nevertheless] realized the floor was wet.’ ” However, the ellipses in the dissent’s quote represent four pages of intervening questions and answers. In fact, Futch testified that she looked around after falling, “[a]nd that’s when I realized the floor was wet.” Futch was then asked if she saw “anything other than the two puddles in front of this other display that you thought caused you to slip and fall,” and she responded, “No.”

       Futch’s brief does not clearly articulate whether she claims to have slipped on one of the two puddles that she saw or on some third puddle she did not see. At points, her brief suggests that her fall was caused by one of the puddles that she saw. For example, she states that she “slipped and fell on a clear fluid on the terra cotta floor. She did not see the fluid until after she fell.” She further states that “if the water on the floor was observable to Ms. Futch in scanning the area, then clearly, Mr. Morris . .. should have observed and removed said fluid prior to her fall.” At other points, Futch appears to claim that the existence of these two puddles supports an inference that she slipped in a different puddle. For example, she states that both she and Morris saw “puddles of water close to the area in which she fell.
      . . . This gives rise to a reasonable inference as to what caused her fall.” One thing is clear, however — nowhere in her brief does Futch claim that she noticed any liquid other than the two puddles in front of the other display.

       See Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27, 28 (1) (343 SE2d 680) (1986).

       See Christopher, supra at 221 (1) (greasy substance on plaintiff’s arms and clothing did not show that she slipped in such substance).

       In fact, she used almost this same language to describe the fall on another occasion: “I was looking at magazines. And next thing I knew, I was looking at the ceiling.”

       (Punctuation omitted.) Alterman Foods, supra at 624.

        Christopher, supra.