author: Phipps, Judge.

text:
    A00A1980.
    DAVIS v. RICH’S DEPARTMENT STORES, INC.
    (545 SE2d 661)
   Phipps, Judge.

Bradford Davis appeals the trial court’s grant of summary judgment in favor of Rich’s Department Stores, Inc. in this action alleging tortious misconduct and violation of the Fair Business Practices Act (FBPA). Because there is no evidence that Rich’s engaged in an unfair business practice or treated Davis in an abusive manner, we affirm.

Summary judgment is appropriate when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. We review a grant of summary judgment de novo, viewing the evidence and all reasonable inferences therefrom in the light most favorable to the nonmovant.

So viewed, the record shows that, in December 1994, an unknown person used Davis’s name, Social Security number, and address to open credit accounts with several retailers, including Rich’s, and charged merchandise to those accounts. Davis testified that he learned of the fraud in mid-December when one of the stores called him about a purchase and that he immediately contacted the police and the Credit Bureau.

In January 1995, Davis received a bill from Rich’s for clothing charged to the fraudulent account. Davis neither paid the bill nor contacted Rich’s about it, but simply “held on to it.” After receiving four or five more statements from Rich’s, however, Davis called the store in April 1995. He testified that he asked the employee on the telephone to send him “whatever forms I need to fill out to let you know I’ve been a victim” and that the employee promised to do so.

After a week passed and Davis received nothing from Rich’s, he called the store again. The employee with whom he spoke had no record of his previous call, so he “had to tell them the story over again.” The employee told Davis that he needed to send Rich’s copies of his photo ID and the police report, as well as a notarized statement that he was a fraud victim.

After receiving letters from collections agencies regarding the Rich’s account, Davis called Rich’s a third time in September 1995. Once again, he said, the store had no record of his previous calls, and he had to repeat his story. On or about September 30, 1995, Davis sent Rich’s copies of the police report and his photo ID, along with a notarized statement explaining the fraud. He could not explain why he waited five months to send these items. Rich’s claims that it never received them.

Sometime thereafter, Davis tried to buy a truck and learned that his credit report reflected an unpaid debt to Rich’s. He sent Rich’s a certified letter, which it did receive, asking the store to “clear my account, my name and my credit history.”

Kama Wilson, Rich’s fraud supervisor, testified that Rich’s does not begin investigating fraud claims until the claimant sends a picture ID and a notarized letter detailing the alleged fraud. Wilson admitted that the store might turn an account over to a collections agency, notwithstanding a legitimate claim of fraud, “[depending on the information that we received or we did not receive.”

Wilson testified that the store’s computer records show that Davis first notified Rich’s in April 1995 that he was a victim of fraud. Rich’s turned the account over to a collections agency on May 25, 1995, without conducting any investigation into Davis’s claim.

Davis sued Rich’s for tortious misconduct and violation of the FBPA. The trial court granted summary judgment to Rich’s on both claims. The court ruled that the FBPA provides no redress for “an isolated incident resulting from essentially private transactions” and that the conduct of Rich’s did not rise to the level of tortious misconduct.

1. The FBPA prohibits “[u]nfair or deceptive acts or practices in the conduct of consumer transactions and consumer acts.” Because the FBPA is designed to protect the general consuming public, it is concerned only with acts or practices that harm, or could harm, the consumer marketplace. The FBPA does not serve “as the basis for a new private remedy for individuals who are damaged by acts or practices which have no potential for impact on the general consuming public.” In other words, the act does not apply to “transactions that are essentially private.”

Citing Wilson’s deposition testimony, Davis claims that the FBPA applies here because Rich’s was acting pursuant to “a policy to collect all debts, even those in which the consumer has been the victim of credit fraud.” This is a mischaracterization of Wilson’s testimony. However, Wilson did acknowledge the possibility that the store might turn an account over to a collections agency despite a claim of fraud if the claimant failed to send a photo ID and notarized letter. Thus, there is evidence that the handling of Davis’s fraud complaint was not merely an isolated incident, but was part of an established store policy that could affect the general consuming public.

But does this policy constitute an “unfair or deceptive act or practice” within the meaning of the FBPA? The act provides a nonexclusive list of unlawful practices that does not include the policy at issue here. Except in plain and indisputable cases, whether particular conduct not listed in the FBPA amounts to an “unfair or deceptive act or practice” is a question for the jury. We find that this is one of those plain and indisputable cases that may be decided as a matter of law.

Davis argues that it is unfair for Rich’s to demand that a consumer “jump through its hoops.” But requiring a fraud claimant to send a notarized letter and a photo ID before the store will investigate does not appear onerous or unreasonable. The fact that Davis ultimately sent the requested documents — albeit five months after Rich’s asked for them — shows that he was capable of complying with the store’s policy. The policy simply is not the kind of “reprehensible conduct” that the FBPA was designed to redress.

Arguably, Rich’s deviated from its credit fraud policy by not promptly investigating Davis’s claim after he sent the requested information in September 1995. However, there is no evidence of other instances in which Rich’s failed to follow its policy. Any deviation in this case, accordingly, must be viewed as an isolated event that had no impact on the general consuming public and that is therefore beyond the reach of the FBPA. The trial court properly granted summary judgment to Rich’s on the FBPA claim.

2. Summary judgment also was proper on Davis’s claim of tortious misconduct. This tort is based on the principle that

one who [owns] a mercantile establishment for the purpose of selling goods owes a duty to a customer, lawfully in his store by his implied invitation for the purpose of transacting business, to protect the customer against the use of any unprovoked and unjustifiable opprobrious and insulting and abusive words by a clerk employed by him to deal with customers, tending to humiliate, mortify, and wound the feelings of the customer.

Davis has presented no evidence of the sort of insulting or abusive behavior this tort is intended to redress. He testified that his claim is not based on anything that happened while he was physically present at a Rich’s store. Moreover, he described no harassment or abuse in his few telephone conversations with Rich’s employees; in fact, he recalled very little about them. Nevertheless, Davis contends that “two years of dunning” amounts to abuse within the meaning of this tort. We find no authority for the proposition that tortious misconduct can be based on anything other than personal contact between a merchant and a customer. Even if it could, we disagree that a handful of telephone calls and collections letters, none involving opprobrious or disrespectful language, can rise to the level of tortious misconduct.

Decided February 19, 2001.

James M. Green, for appellant.

Powell, Goldstein, Frazer & Murphy, Christopher P. Galanek, King & Spalding, Samuel M. Matchett, William L. Hawthorne III, for appellee.

Judgment affirmed.

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

       OCGA § 10-1-390 et seq.

        Testamentary Trust of Moseley v. Barnes, 245 Ga. App. 817 (538 SE2d 873) (2000).

       Id.

       Davis explained that a Credit Bureau employee had told him “that they would inform everyone of what was going on, all my creditors.”

       Davis also alleged claims for invasion of privacy and libel. However, he voluntarily dismissed the former and does not challenge the grant of summary judgment on the latter.

       Davis contends that the parties never raised, briefed, or argued this question, but a review of the record shows that Rich’s did raise the issue in its summary judgment brief.

       OCGA § 10-1-393 (a).

        Zeeman v. Black, 156 Ga. App. 82, 84-85 (273 SE2d 910) (1980); Chancellor v. Gateway Lincoln-Mercury, 233 Ga. App. 38, 43-44 (2) (502 SE2d 799) (1998).

        Zeeman, supra at 84.

       (Citation and punctuation omitted.) Medley v. Boomershine Pontiac-GMC Truck, 214 Ga. App. 795, 796 (2) (449 SE2d 128) (1994) (customer could not sue car dealership under FBPA for representing to him that vehicle it sold him was a demonstrator when it was a rental fleet vehicle, in the absence of evidence that dealership had advertised vehicle to general public as demonstrator). See also Zeeman, supra (no FBPA claim based on isolated oral misrepresentation by a realtor to a home buyer).

       See Regency Nissan v. Taylor, 194 Ga. App. 646, 647 (2) (391 SE2d 467) (1990).

       See OCGA § 10-1-393 (b).

        Regency Nissan, supra at 648.

        Standish v. Hub Motor Co., 149 Ga. App. 365, 366 (254 SE2d 416) (1979); see also DeLoach v. Gen. Motors, 187 Ga. App. 159, 160-161 (369 SE2d 484) (1988) (car dealership’s policy of refusing to provide customer with new car after customer declined to have dealership repair original car was not “unfair practice” under FBPA).

       Although Rich’s claims that it never received the documents, we construe the facts in favor of Davis.

       The trial court did not consider the question of whether Rich’s alleged conduct constituted an “unfair practice” under the FBPA. The parties briefed that issue, however, and we will affirm a grant of summary judgment if it is right for any reason. Bennett v. Cotton, 244 Ga. App. 784, 787 (2) (536 SE2d 802) (2000).

       (Citation and punctuation omitted.) Doe v. Village of St. Joseph, 202 Ga. App. 614, 617 (3) (415 SE2d 56) (1992).

       Compare, e.g., Revco Discount Drug Centers &c. v. Famble, 173 Ga. App. 330, 331-332 (4) (326 SE2d 532) (1985) (jury could find tortious misconduct where customer complained that store clerk made loud, angry, and false accusations of shoplifting in front of other customers).


source: Caselaw Access Project

author: Ruffin, Judge.

license: Public Domain

text:
    A00A2067.
    BAILEY v. THE STATE.
    (545 SE2d 659)
   Ruffin, Judge.

Darian Bailey was convicted of possession of cocaine with intent to distribute. On appeal, he argues that the trial court should have suppressed his confession because it was not voluntary. As the trial court did not clearly err in admitting the confession or ruling the confession was voluntary, we affirm.

At a Jackson-Denno hearing prior to trial, Investigator Joey Mickle of the LaGrange Police Department testified that he and another officer arrested Bailey, took him to the police department, and read him his Miranda rights. Bailey signed a form indicating that he understood his rights, that he did not want a lawyer, and that he was “willing to make a statement and answer questions.” The form also stated, “No promises or threats have been made to me, and no pressure or coercion of any kind has been used against me.” Bailey then gave the police a statement, which Mickle reduced to writing. The statement was as follows:

On June 20 1991 at about 0129 hours I observed a marked patrol car behind me. I got scared and jumped out and ran. I was arrested after I hide [sic] in the bushes. The “crack” cocaine in the vehicle was mine and I planned to sell it. I have agreed to work in return for [leniency] in return for helping [the Special Investigation Unit].

Mickle testified unequivocally that he never promised Bailey anything in return for his statement. As for the last sentence in the statement, Mickle explained that Bailey “displayed an interest in taking other drug dealers off the street, so that was incorporated in his statement as well.” Mickle elaborated that he told Bailey that, if, in the future, “he assisted [the Special Investigation Unit] in doing other drug investigations [,]” then after he provided that assistance, Mickle would notify the district attorney’s office which “can judge and interpret it to their effect and then make the sentence and recommendations.” Mickle further stated that he never told Bailey “that I could get his sentence cut down or I could give him a sentence, because I don’t have those powers.” Finally, Mickle stated that, as of the time Bailey made the statement, he had not provided any assistance to the Special Investigation Unit.

Bailey disputed Mickle’s interpretation of the statement. He testified that Mickle told him “that he would give me a lesser sentence or lesser time ... as far as my cooperation with him.” Bailey also testified that he would not have made the confession if Mickle had not promised him leniency in return. Bailey admitted, however, that when he agreed to help the Special Investigation Unit, he was “agreeing to do something in the future.”

Following this testimony, the trial court ruled that Bailey’s confession was voluntary and admissible. Bailey contends that this ruling was erroneous because the police improperly gave him a hope of benefit in return for his confession. We disagree.

Under OCGA § 24-3-50, a confession is inadmissible unless it is made “voluntarily, without being induced by another by the slightest hope of benefit or remotest fear of injury.” “Merely telling a defendant that his or her cooperation will be made known to the prosecution does not constitute the ‘hope of benefit’ sufficient to render a statement inadmissible.” It is the task of the trial court to determine whether a confession was voluntary, taking into account the totality of the circumstances. We will not disturb the trial court’s factual and credibility determinations on appeal unless they are clearly erroneous.

Here, Investigator Mickle testified that he simply told Bailey that he would inform the district attorney’s office if Bailey provided future assistance with other drug investigations. Mickle insisted that he did not tell Bailey that he could get Bailey’s sentence reduced. Although Bailey testified that Mickle promised him a lighter sentence in return for “cooperation,” the trial court was entitled to conclude that Mickle was the more credible witness. Mickle also testified that he promised to notify the prosecution only if Bailey provided future information to the police concerning other drug dealers, not if Bailey made a confession. And, even Bailey acknowledged that he was “agreeing to do something in the future.” Thus, the trial court could have concluded that any promise of leniency was contingent on future assistance by Bailey and was unrelated to his confession. Finally, Bailey signed a form acknowledging that the police used no promises or threats against him and did not pressure or coerce him. Under these circumstances, the trial court’s ruling that Bailey’s confession was voluntary was not clearly erroneous.

Decided February 19, 2001.

Patterson & Patterson, Jackie G. Patterson, Yasma Patterson, for appellant.

Peter J. Skandalakis, District Attorney, Julianne W. Holliday, Assistant District Attorney, for appellee.

Judgment affirmed.

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

        Jackson v. Denno, 378 U. S. 368 (84 SC 1774, 12 LE2d 908) (1964).

        Miranda v. Arizona, 384 U. S. 436 (86 SC 1602, 16 LE2d 694) (1966).

       (Punctuation omitted.) Lawrence v. State, 227 Ga. App. 70, 73 (5) (487 SE2d 608) (1997); see also Autry v. State, 210 Ga. App. 150, 151 (2) (435 SE2d 512) (1993).

       See Sims v. State, 197 Ga. App. 214, 216 (3) (398 SE2d 244) (1990).

       Id.

       See Lyles v. State, 221 Ga. App. 560, 561 (1) (472 SE2d 132) (1996) (upholding trial court’s admission of confession where, among other things, defendant “signed a form acknowledging that he had not been promised anything”).


author: Pope, Presiding Judge.

text:
    A00A2259, A00A2260.
    In the Interest of S. K. et al., children (two cases).
    (545 SE2d 674)
   Pope, Presiding Judge.

The mother of S. K. and F. K. appeals following the termination of her parental rights. In a companion case, the children’s paternal grandmother appeals from the juvenile court’s order denying her custody of the children.

On appeal, we review the evidence in the light most favorable to the juvenile court’s order. See In the Interest of D. W., 235 Ga. App. 281 (509 SE2d 345) (1998). Viewed in that light, the evidence at the hearings showed that before April 1996, S. K. and F. K. lived primarily with their grandmother, with their parents’ consent, although the grandmother was never granted legal custody by any court. The children’s parents also periodically lived with the grandmother.

As early as 1990, the Department of Family & Children Services began receiving reports of neglect and abuse regarding S. K. and F. K. and three other children who also lived with the grandmother. At one point, the children were removed from the grandmother’s home because she failed to send them to school. In April 1996, all five children were placed in foster care after it was reported that S. K. and F. K. and two female cousins had been sexually abused by three male relatives, who either lived with the grandmother or had access to her home. One of the men was the father of S. K. and F. K., and another was the father of the other girls. The three men were subsequently charged in connection with the abuse. They either pled guilty or were convicted and were incarcerated at the time of the termination proceedings.

During DFACS’ investigation of the allegations of abuse, S. K. and the two cousins stated that they had been sexually abused while they lived with the grandmother and that the mother and the grandmother were aware of the abuse, but did nothing to prevent it. The children also expressed fear that if they were returned to the grandmother’s house, they would “get whippings” with extension cords and boards for talking with DFACS. A physician, who examined the children, found evidence that they had been sexually molested. After a finding of deprivation, S. K. and F. K. and their two cousins were removed from the grandmother’s home and placed in DFACS’ temporary legal custody. Even after the children were placed in DFACS’ custody and the men incarcerated, the grandmother and the mother maintained that no abuse had occurred.

Thereafter DFACS developed a series of case plans designed to bring about the children’s reunification with their family. The grandmother was included in the case plans because she had been the children’s primary caretaker. The principal goal of the case plan was to get the mother and the grandmother to acknowledge that the abuse occurred and to recognize the importance of protecting them from further abuse. Despite these efforts, the grandmother and the mother never admitted that the children had ever been abused or neglected or that they needed protection. Up until the most recent hearings on the petition for termination, the grandmother also maintained that she would allow the girls’ father to come back into her home once he was released from prison.

And during visitation sessions with the children, the mother and the grandmother told the children that the men had been “set up” and that the allegations of abuse were not true. They blamed the men’s imprisonment on lies told by the cousins. Such discussions were prohibited by the juvenile court’s order of August 26, 1997. They also discussed inappropriate things in front of the girls, such as a 15-year-old cousin’s improper relationship with a 50-year-old woman, in violation of the case plan. In addition, they repeatedly talked about the possibility of S. K. and F. K. returning to the grandmother’s house, which confused the girls and violated the terms of the case plan. And at one point, they forwarded to the girls a note from their father, while he was awaiting trial on charges of molesting their cousin.

In June 1998, DFACS filed proceedings to terminate the mother’s and the father’s parental rights to S. K. and F. K. Following a number of hearings, the juvenile court terminated the father’s parental rights. And although the court found clear and convincing evidence to terminate the mother’s parental rights, it decided not to do so at that time because of the “strong family bond” between the children and their mother. Nevertheless, the children remained in DFACS’ custody.

In July 1999, DFACS again sought to terminate the mother’s parental rights. The juvenile court conducted hearings on September 17 and 22, 1999, on November 29, 1999, and on February 4, 2000. Rhonda Wheeler, the DFACS caseworker assigned to the children’s case from 1996 to 1998, testified that while the children appeared to have a bond with the mother and the grandmother, they had told her several times that they did not want to live with the grandmother because “they would get hurt.” She stated that on at least one occasion they had exhibited behavioral problems in school and at home following visits with the mother and the grandmother. She also stated that the children had been in several foster placements during the period she worked on the case.

Delicia Folsom, the children’s current caseworker, testified that the tenor of the children’s visits with the mother and the grandmother had deteriorated over the more recent visits, becoming, in her opinion, “more harmful.” The children had told her that although they would like to return to the grandmother’s house, they did not feel safe there. Folsom also noted that DFACS had investigated the possibility of placing the children with a relative for adoption, but the relatives identified by the family had been denied following criminal background checks. She stated that a prospective adoptive placement had been found for the girls with their former foster parents, who had moved to Texas. Both caseworkers opined that the children needed permanency in a safe, stable environment as soon as possible.

Dr. Wallace Kennedy, a clinical psychologist, conducted psychological evaluations of both the mother and the grandmother “to determine their suitability to be custodial parents of two young girls.” Based on this evaluation, Dr. Kennedy determined that the mother was “mildly retarded” and functionally illiterate, which stunted her emotional and mental maturity and inhibited her ability to make proper decisions. He described her as a “child.” He stated that these qualities made the mother very dependent upon the grandmother. Kennedy believed that the mother was incapable of protecting the children if they were subjected to the same conditions that previously existed in the grandmother’s home. And he believed that the mother had a “character disorder” that interfered with her ability to use good judgment and thus to parent S. K. and F. K.

Dr. Kennedy also determined that the grandmother was limited in intelligence and illiterate. Although the grandmother had a desire to care for the children, Dr. Kennedy found her to be “incredibly naive with regard to what that involves.” He concluded that she had a character flaw or deficiency that caused her to operate on a fixed “belief system without much testing of reality.”

Although Dr. Kennedy had evaluated the women several years prior to the hearing, he testified that he did not believe their condition would have changed in the intervening time. He stated that the condition of both women was “characterological” and not treatable, that counseling would have little or no effect on their conditions, and that he did not foresee any potential for improvement. He did not believe that either the mother or the grandmother had sufficient judgment and understanding to parent or protect the children, nor that they would ever develop those abilities. And he did not believe that the children should be returned to the care of the grandmother or the mother because they had “never faced the issue that terrible, terrible things have happened to the children.” He also expressed concern that if the children were returned to the care of the grandmother or the mother, they would be “brainwashed into thinking that their perception of the abuse was a lie,” which would be harmful to them.

A second clinical psychologist, Dr. Julie Christine Medlin, testified that she conducted psychosexual evaluations of S. K. and F. K. in June 1999 to assess their treatment needs and their current psychological functioning. Both children told Dr. Medlin that they had been sexually abused by their father and uncle, while they lived at the grandmother’s house. Both girls also stated that their mother was aware of the abuse, but did nothing about it. Dr. Medlin administered a series of psychological tests, which supported the girls’ statements that they had been sexually abused. Among other things, these tests showed that both girls were more depressed, had more social problems, and showed more sexual behaviors than the vast majority of girls their age. Dr. Medlin concluded that S. K. was severely traumatized by the sexual abuse and diagnosed her as having posttraumatic stress disorder, a condition which results from major trauma. Dr. Medlin also testified that while F. K. was not as severely traumatized as S. K, she suffers from adjustment disorder with depressed mood, and some symptoms of posttraumatic stress disorder. In addition to the sexual abuse, Dr. Medlin stated that the girls had been harmed by the grandmother’s and the mother’s denial that the abuse had occurred and the continued impermanence of their situation. She stated that continued visitation with the mother and the grandmother would be harmful and that the girls needed a permanent adoptive home.

Dane Heard testified that following a home evaluation of the grandmother’s home, he would recommend against placing the children with the grandmother. He based his conclusion on the fact that the grandmother and her husband both had health problems; that no one in the home was employed and they all received disability benefits; that they had very little excess income per month; and that because the grandmother intended to allow the children’s father back into the home when he was released from prison, the children would not be safe. In addition, the children’s guardian ad litem testified that he did not believe it would be in the children’s best interests to be placed in the grandmother’s care.

Case No. A00A2259

1. As her sole enumeration, the mother asserts that the trial court abused its discretion when it denied her oral motion for an independent psychological examination of the children. The mother’s attorney made this motion at the September 22, 1999 hearing. The grandmother’s counsel joined in the motion and further requested that another psychological examination be conducted on both the mother and the grandmother as well. The juvenile court deferred ruling on the motions, but directed that attorneys for the grandmother and the mother provide the name of a clinical psychologist or other professional who could perform the evaluations. At the next hearing, after citing evidence from the prior hearings including the testimony of the two clinical psychologists, the juvenile court denied the motions.

The mother contends that this ruling was an abuse of discretion pursuant to OCGA § 15-11-22, which requires the juvenile court to issue a subpoena upon application of any party. But that section does not apply to the mother’s motion. Rather, at the time of the motion, OCGA §§ 15-11-32 and 15-11-87, which authorize a juvenile court to order a psychological examination, were the applicable sections. Under the language of both Code sections, the decision to order a mental evaluation is left to the juvenile court’s discretion. Accordingly, we will not interfere with that decision absent an abuse of discretion. See generally Williams v. Newsome, 254 Ga. 714, 716 (334 SE2d 171) (1985) (the denial of a motion for appointment of an expert witness lies “within the sound discretion of the trial court and will not be overturned on appeal unless there has been an abuse of discretion”).

In this case, the children had been examined by Dr. Medlin in June 1999, just a few months prior to the hearing. Based upon her examination, Dr. Medlin concluded that both children had been substantially harmed by the sexual abuse and by the mother’s continued denial that any abuse had occurred. She further testified that it was in the children’s best interests to place them in a permanent home and supported the termination of the mother’s parental rights. The mother presented no evidence that Dr. Medlin’s conclusions were in any way biased or that another psychologist would come to a different conclusion. Indeed, another psychologist, Dr. Carrie Pagels, had presented substantially similar testimony in the 1998 termination proceedings. Under these circumstances, we find no abuse of discretion.

Case No. A00A2260

2. The grandmother asserts three errors with regard to the proceedings below. As an initial matter, we note that we make no determination as to whether a grandmother who was never granted formal legal custody of the children may bring an appeal from an order terminating the mother’s parental rights and granting custody to DFACS. See In the Interest of B. R. W, 242 Ga. App. 232, 240 (3) (530 SE2d 5) (2000). Cf. In the Interest of J. C. H., 224 Ga. App. 708, 710 (2) (482 SE2d 707) (1997). Here, because the parents had apparently placed the children in the grandmother’s care and the girls had lived with her almost all their lives, she was included in all DFACS case plans and was allowed visitation. She was served with pleadings, represented by counsel, and presented evidence in the juvenile court proceedings. But, even assuming the grandmother has the right to appeal under these circumstances, we find no error by the juvenile court.

The grandmother first asserts that the November 29, 1999 hearing was not recorded as required by OCGA § 15-11-28 (b). That section provides that unless waived by the juvenile or the parents, “the proceedings shall be recorded by stenographic notes or by electronic, mechanical, or other appropriate means.” For some reason, here, the tape recording of one session was difficult to hear, and the court reporter was unable to prepare a complete transcript of the hearing. The grandmother contends that she is, therefore, entitled to a new hearing.

In prior cases, in the absence of a waiver, this Court has granted a new hearing on the ground either that the juvenile court failed to record the entire proceedings or that the record had been destroyed. See In the Interest of L. G., 230 Ga. App. 153, 154 (495 SE2d 628) (1998) (only tape recording of deprivation proceeding destroyed); In the Interest of T. M. C., 206 Ga. App. 595 (426 SE2d 247) (1992) (juvenile court was aware that a portion of the custody proceedings had not been recorded, but took no steps to remedy the situation); In re R. L. M., 171 Ga. App. 940, 941 (1) (321 SE2d 435) (1984) (custody hearing not recorded); K. E. S. v. State of Ga., 134 Ga. App. 843, 850 (4) (216 SE2d 670) (1975) (probation revocation hearing not recorded).

The proceedings in this case occurred over four separate sessions. A complete, certified record exists for three of the four hearing dates, and a partial transcript exists for the remaining November 29 hearing. During that proceeding, the juvenile court denied the motions for further psychological examinations, issued an oral ruling that terminated the mother’s parental rights, and heard from counsel regarding the future placement of the children. No evidence was presented at this hearing, and the trial court’s oral ruling on termination was followed by a detailed 13-page written order. Moreover, the problem with the recording apparently was not discovered until the court reporter attempted to transcribe the record for appeal.

Therefore, a transcription was made of all evidence presented to the juvenile court. The reasoning behind the rulings at issue on appeal was either transcribed or included in a written order. Accordingly, nothing hindered this Court’s review of the pertinent portions of the proceedings, and the grandmother has not demonstrated how limited omissions from the attorney’s discussions with the juvenile court prevented her from fully presenting her appeal. We conclude, therefore, that under the circumstances of this case, the purposes of OCGA § 15-11-28 (b) were satisfied, and no reversible error occurred.

3. The grandmother next contends that the trial court erred in denying her custody of the children. The grandmother argues that she had custody prior to DFACS’ intervention. She points to a written agreement signed by the parents in 1989 granting her custody of S. K. While this document reflects a private arrangement between the parents and the grandmother with regard to S. K., this document does not purport to apply to F. K. Moreover, there is no evidence that a court ever granted the grandmother legal custody of either child. Accordingly, this document was not binding upon the trial court. Rather, the trial court was required to comply only with the strictures of OCGA § 15-11-90.

And as this Court has held, nothing in OCGA § 15-11-90 (a) requires a trial court to place the children with a family member:

OCGA § 15-11-90 (a) does not require a trial court to give a preference to family members in making a placement of a child following termination of parental rights. Rather, the statute states that “(a) placement shall be made under the terms of this paragraph only if such a placement is in the best interest of the child.”

In the Interest of B. R. W., 242 Ga. App. at 240 (3).

Here the juvenile court heard evidence that, despite her desire to do so, the grandmother was not suited to be an adequate parent to S. K. and F. K. or to protect them from future harm. In fact, the evidence showed that the grandmother’s continued denial that the children had ever been abused would cause further harm. And Dr. Kennedy testified that counseling or therapy would not alter the grandmother’s basic character deficiency. Moreover, the juvenile court heard evidence that an evaluation had been conducted on the grandmother’s home and it was determined not to be appropriate for the children’s placement. Under these circumstances, we find no abuse of discretion in the trial court’s determination that it was not in the children’s best interests to place them with the grandmother. See In the Interest of B. R. W., 242 Ga. App. at 241.

4. The grandmother also contests the juvenile court’s denial of her motion for further psychological evaluations. For the reasons set forth in Division 1 above, we find no error in the denial of the grandmother’s motion for further evaluation of the children. And similarly, we find no error in the juvenile court’s denial of the grandmother’s request for further psychological evaluation of the mother and herself. The trial court heard testimony from Dr. Kennedy with regard to his evaluation of the two women. Although that evaluation had taken place a few years earlier, Dr. Kennedy testified that the condition of the two women was “characterological,” not conducive to therapy or counseling, and not likely to change. Accordingly, we cannot say that the juvenile court abused its discretion in denying further evaluations.

Judgments affirmed.

Miller and Mikell, JJ, concur.

Decided February 19, 2001.

Smith, Hannan & Parker, James R. Smith, Jr., Don T. Lyles, for appellants.

Thurhert E. Baker, Attorney General, Dennis R. Dunn, Deputy Attorney General, William C. Joy, Senior Assistant Attorney General, Shalen S. Nelson, Assistant Attorney General, Daniel M. Mitchell, Jr., for appellee.

       Because the mother asserts no error in regard to the merits of the trial court’s termination order, we do not address that issue.

       Pursuant to amendment, this Code section has been redesignated as OCGA § 15-11-36 effective July 1, 2000.

       That Code section was redesignated as OCGA § 15-11-12 pursuant to the 2000 amendment.

       Now designated as OCGA § 15-11-100.

       Now designated as OCGA § 15-11-41 (b).

       Now OCGA § 15-11-103.


text:
    A00A2289.
    RENT TO OWN, INC. v. BRAGG.
    (546 SE2d 9)
   Ruffin, Judge.

Danny Ray Bragg sued Rent to Own, Inc. for malicious prosecution, alleging that the company is vicariously liable for the torts of its employee, Mark Smith, in causing Bragg to be falsely arrested and imprisoned. The trial court granted Bragg partial summary judgment, finding “as matter of law that [Smith] was acting within the course and scope of his employment with Rent to Own, Inc. at the time he swore out the arrest warrant against [Bragg].” Rent to Own appeals that decision, and for reasons that follow, we affirm.

1. On appeal, we review the trial court’s grant of summary judgment de novo to determine whether the evidence of record, viewed in the light most favorable to the nonmoving party, demonstrates any genuine issue of material fact.

Viewed in a light most favorable to Rent to Own, the evidence shows that the company rents and sells furniture and appliances. Rent to Own operates six stores in Georgia, each of which is supervised by a manager. In April 1996, Smith managed Rent to Own’s store in Austell.

On April 6, 1996, Bragg and his girlfriend, JoAnna Suggs, went to Rent to Own’s Austell store to rent a washer and dryer. Because Bragg was new to the area, Rent to Own would not rent the appliances to him. Accordingly, Suggs entered the rental agreement in her name, and when Rent to Own delivered the washer and dryer, she signed for the delivery. Later that month, Bragg and Suggs broke up, and Bragg moved to Texas.

It appears that after Bragg left town, Suggs made no payments for the washer and dryer and did not return the washer and dryer to Rent to Own. Thus, a Rent to Own vice president directed Smith to swear out an arrest warrant against Suggs. Instead, Smith swore out an affidavit for Bragg’s arrest. Smith explained, in an affidavit for this case, that he had no personal reason to have Bragg arrested. Smith further stated:

I do not remember taking a warrant for Danny Bragg[,] but while I was manager I took several warrants for people. . . . I was not allowed to choose a person to take a warrant for. . . . Scott Harvey, the V.P. of operations, always told me who to take the warrant for. He would have had to tell me to take a warrant for Danny Bragg.

Fourteen months later, after Bragg had returned to Georgia, he was arrested on the warrant for theft by conversion. The charge was eventually dismissed due to insufficient evidence, and Smith subsequently filed the instant action.

Rent to Own contends that, because its vice president instructed Smith to have Suggs arrested, he was acting outside the scope of his employment by having Bragg arrested and that the trial court therefore erred in granting partial summary judgment to Bragg on this issue.

This matter is generally governed by OCGA § 51-2-2, which provides that a master is liable for the torts committed by his servant “in the prosecution and within the scope of his business, whether the' same are committed by negligence or voluntarily.” The question is not whether the master authorized the servant to commit the tort, but whether the servant was authorized “to accomplish a purpose in pursuance of which a wilful tort is committed. The test is whether the tort was done within the scope of the actual transaction of the master’s business for accomplishing the ends of his employment.” Whether a servant is acting within the scope of his employment is usually a jury question, but may be decided by the court as a matter of law in plain and palpable cases. This is such a case.

It is undisputed that, when Smith swore out the affidavit for arrest, he was the manager of Rent to Own. It is also undisputed that, as manager, he was authorized by the company to swear out an arrest warrant for conversion of the washer and dryer. The fact that Smith disobeyed, ignored, or misunderstood his vice president’s instructions to have Suggs arrested rather than Bragg is unfortunate, but irrelevant for our inquiry. There is absolutely no evidence that Smith had Bragg arrested for personal reasons. Instead, the undisputed evidence shows that Smith swore out the affidavit for arrest against Bragg for the sole reason that he thought he was instructed to do so by his employer. Under these circumstances, it makes no difference that Rent to Own was unaware that Smith had the wrong person arrested, that Rent to Own did not authorize Smith’s action, or even that Rent to Own disapproved or forbade it. Again, the issue is whether Smith was acting “within the scope of the actual transaction of [Rent to Own’s] business for accomplishing the ends of his employment,” and the undisputed evidence shows that he was. Accordingly, the trial court did not err in granting partial summary judgment to Bragg on this issue.

Decided February 19, 2001.

William P. Tinkler, Jr., Wayne E. Brooks, Jr., for appellant.

Jack E. Dodd, for appellee.

2. Bragg’s motion for frivolous appeal damages is denied.

Judgment affirmed.

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

       See OCGA § 9-11-56 (c); Leal v. Hobbs, 245 Ga. App. 443 (538 SE2d 89) (2000).

       (Citation omitted.)Reynolds v. L & L Mgmt., 228 Ga. App. 611, 612-613 (1) (492 SE2d 347) (1997).

       See Brown v. AMF Bowling Centers, 236 Ga. App. 277 (1) (511 SE2d 619) (1999).

       See id. at 278.

       See id.; see also Evans v. Caldwell, 52 Ga. App. 475, hn. 2 (184 SE 440) (1935) (physical precedent only) (discussing numerous authorities which provide that master is liable for acts of servant even if servant disobeyed master’s instructions).

       (Citation omitted.) Reynolds, supra at 613.


text:
    A00A2342.
    SINCLAIR v. THE STATE.
    (546 SE2d 7)
   Ruffin, Judge.

A jury found Lee Sweeney Sinclair guilty of entering an automobile with intent to commit a theft, obstruction, carrying a concealed weapon, and driving with a suspended license. In two enumerations of error, Sinclair challenges the sufficiency of the evidence supporting his conviction for entering an automobile. As the evidence was sufficient to support the verdict on this count, we affirm.

On appeal from a criminal conviction, the defendant no longer enjoys the presumption of innocence, and we view the evidence in a light most favorable to the jury’s verdict. So viewed, the evidence shows that at approximately 5:00 a.m. on March 21, 1998, Macon Police Officer Robert Schwartz saw Sinclair driving a Jeep Cherokee with two passengers. Sinclair pulled into a convenience store parking lot and walked to a pay phone. Because the Jeep had an out-of-county license plate, Schwartz ran a computer check on the number and discovered that the Jeep had been reported stolen.

After calling for backup, Schwartz approached Sinclair, told him the Jeep had been reported stolen, and searched him for weapons. As Schwartz patted Sinclair’s pants pocket, he found a razor carpet knife, which, according to Schwartz, is commonly used as a weapon. Schwartz testified that, when he found the knife, “Sinclair turned on me. He turned, violently shifting, attempting to strike me and knock me down.” While Schwartz was struggling with Sinclair, the two passengers fled. Sinclair eventually broke away from Schwartz, and Sinclair’s pants pocket ripped. Schwartz, who had been holding on to the pocket, retained the knife as well as Sinclair’s wallet, which contained an identification card.

As Sinclair ran from Schwartz, several other police officers arrived and surrounded Sinclair, who was then taken into custody. The police later inventoried the contents of the Jeep and discovered several items that had been stolen from a Honda CRX during the night. According to Jamie Stanley, the owner of the Honda, she left her locked car in the parking lot of a motel on March 20, 1998 — the evening before Sinclair was arrested. The next morning, she discovered that one of the windows had been broken and several items had been taken, including her wallet, her checkbook, a book bag, and the car radio — items which were found in the Jeep Cherokee.

1. On appeal, Sinclair argues that the evidence was insufficient to support his conviction for entering the auto. In his brief, he points to the fact that the trial court “granted [his] motion for directed verdict for theft of the same vehicle.” Thus, he reasons, he should have been acquitted of the entering charge as it was based on the same evidence. He further asserts that there was no evidence that he entered the Jeep to commit a felony. Sinclair’s reasoning is flawed.

Initially, we note that Sinclair was charged with entering the Honda CRX, not the Jeep Cherokee. Under OCGA § 16-8-18, a person who enters “any automobile or other motor vehicle with the intent to commit a theft” is guilty of a felony. Here, the record reveals that someone broke into the Honda either the night of March 20 or the early morning of March 21. Later that same morning, Sinclair was driving a Jeep that contained the items stolen from the Honda, and Sinclair’s “ [unexplained recent possession of [the] stolen goods supports an inference that [he] committed the theft.” When Sinclair took the stand, he did not attempt to explain his actions, but simply denied either driving the Jeep or having had anything to do with breaking into the Honda. The jury evidently disbelieved Sinclair’s protestation of innocence, which is the jury’s prerogative.

Decided February 19, 2001.

William D. Phillips, for appellant.

Charles H. Weston, District Attorney, for appellee.

Additionally, the record reveals that Sinclair attempted to flee when confronted by police, which the jury was authorized to believe constituted circumstantial evidence of guilt. The jury was not required to believe Sinclair’s testimony that he was unaware that Schwartz was a police officer and that, by struggling with Schwartz, he was merely trying to “defend” himself from attack. Under these circumstances, the jury was authorized to resolve conflicts in the evidence against Sinclair and conclude that he was responsible for stealing the items from the Honda.

2. Sinclair further argues that his conviction was based solely upon circumstantial evidence that failed to exclude every other reasonable hypothesis except his guilt. “A jury is not required to exclude every hypothesis other than guilt; it must consider only every other reasonable hypothesis.” Thus, this jury was not required to accept, as reasonable, Sinclair’s hypothesis that Schwartz “in his haste . . . lost sight of the individual actually driving the stolen [Jeep] and mistakenly fixed upon [Sinclair] innocently using the telephone next to the parking lot.”

Judgment affirmed.

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

       Sinclair also was charged with theft by receiving, but the trial court directed a verdict on this count.

        Murray v. State, 239 Ga. App. 659 (522 SE2d 48) (1999).

       (Punctuation omitted.) Brown v. State, 236 Ga. App. 478, 480 (1) (512 SE2d 369) (1999).

       See Oakes v. State, 233 Ga. App. 684, 685-686 (1) (505 SE2d 33) (1998).

        Agony v. State, 226 Ga. App. 330, 331 (2) (486 SE2d 625) (1997).

       See id.

       See Williams v. State, 228 Ga. App. 622 (1) (492 SE2d 290) (1997).

       (Emphasis in original.) Oakes, supra at 686 (2).


author: SMITH, Presiding Judge.

text:
    A00A2405.
    NATIONWIDE MUTUAL FIRE INSURANCE COMPANY v. LAM et al.
    (546 SE2d 283)
   SMITH, Presiding Judge.

This appeal requires us to apply the principles set forth by the Supreme Court of Georgia in OB-GYN Assoc. v. Littleton, 259 Ga. 663 (386 SE2d 146) (1989) (Littleton II), and reaffirmed in OB-GYN Assoc. v. Littleton, 261 Ga. 664 (410 SE2d 121) (1991) (Littleton IV), regarding the recoverability of damages for mental injury or emotional distress under the so-called “impact rule.” Applying those principles to the facts of this case, we conclude that a possibility of recovery exists under the claim presented by Lam, and the trial court therefore did not err in denying Nationwide’s motion for summary judgment.

The record shows that Mai Bach Lam and her husband were involved in an automobile collision between their vehicle and that of Retha Rene Eller. They sought recovery from Nationwide, their uninsured motorist carrier, on the ground that Eller was an underinsured motorist. Lam’s husband sustained physical injuries, and he settled with Nationwide. He is a party to this appeal only as a claimant for damages for loss of consortium. Although Lam suffered no physical injuries as a result of the collision, Lam testified on her deposition that the collision aggravated a preexisting mental illness.

Lam testified that she suffered from psychological or psychiatric problems before the collision, had received treatment from a psychiatrist for many years, and was hospitalized for psychiatric problems in 1986 after she drove a car into a tree. She has taken many different medications over the years. In 1987, she was diagnosed as having a bipolar disorder with psychotic features, but her condition was very stable from that time until the collision that is the subject of this suit. She was involved in a vehicular collision in 1992, but did not suffer any injuries, either physical or psychological.

About three days after the collision at issue in this case, Lam visited her psychiatrist, complaining of anxiety caused by the wreck. She believes this anxiety was caused by witnessing the other car coming head-on toward her and her husband. Her psychiatric problems became worse; at one point after the collision she threw furniture at her daughter and broke a chair. Sixteen days after the wreck, Lam was hospitalized for approximately ten days. While hospitalized, she reported auditory hallucinations. As a result of her illness and hospitalization after the wreck, Lam incurred medical expenses totaling over $12,000. When she was discharged, she was on medications that made her “druggy” all the time. As of the date of her deposition, she was taking lithium, in addition to medication for hypertension, and her condition was again stable.

In the trial court, Nationwide moved for summary judgment on the ground that Lam suffered no physical injury and therefore, under the law in Georgia, she could not recover. Nationwide argued that because Lam’s husband’s recovery for loss of consortium depended upon Lam’s right of recovery, he could not recover either. The trial court denied Nationwide’s motion but granted Nationwide a certificate of immediate review. We granted Nationwide’s application for interlocutory review, and this appeal ensued.

1. Nationwide contends that Lam may not recover because she admitted she suffered no physical injury and she therefore is prevented from recovering under Georgia’s “impact rule.” The Georgia rule has a long history. It was first stated by our Supreme Court in Chapman v. Western Union Telegraph Co., 88 Ga. 763 (15 SE 901) (1892). A long succession of cases has explained, clarified, distinguished, and limited the rule to exclude recovery when a plaintiff sought recovery for emotional distress from the negligence of a defendant but did not suffer either physical injury or monetary loss. The rule was further significantly shaped in the Littleton cases, a series of cases involving a parent’s suit for emotional distress caused by the negligent delivery and subsequent alleged wrongful death of her newborn child. In Littleton II, the Supreme Court clarified the rule regarding the relationship between impact and a claim for damages for emotional distress. Under that rule, for a claim of emotional distress or mental pain and suffering to succeed, a plaintiff must have sustained actual bodily contact with the defendant or an instrumentality of the defendant. Id. at 665-667 (2) (A). In addition, the mental pain and suffering must be accompanied by actual physical injury to allow recovery. Id. at 666 (2) (A).

In Lee, a mother and her child were injured in the same vehicular collision, and the child later died. The mother’s claim for negligent infliction of emotional distress was not the result of her own injuries, but was based upon her having witnessed the injury and death of her child. The Supreme Court relaxed the rigidity of the impact rule, partially overruling the Littleton cases, by its holding extending the right to pursue a claim for negligent infliction of emotional distress to the mother under these circumstances. Nationwide is correct that Lam may not recover under this rule, as it is clear that she suffered no physical injury.

2. But under Littleton II, recovery for emotional distress is not limited to those causes of action possible under the impact rule. In Division 2 (A) of Littleton II, the Supreme Court clearly held that damages for emotional distress attendant upon personal injury are recoverable only when an impact exists that results in physical injury. In Division 2 (B), however, the court held that a plaintiff may recover damages for emotional distress based upon an injury to property that results in pecuniary loss if injury to the person is also present, even if that injury is not physical. Strictly speaking, this latter principle is not part of an “impact rule,” because a trespass that causes a pecuniary loss does not necessarily involve an “impact.”

In Littleton II, the Supreme Court cited Kuhr Bros., Inc. v. Spahos, 89 Ga. App. 885 (81 SE2d 491) (1954), overruled on other grounds, Whiten v. Orr Constr. Co., 109 Ga. App. 267, 270 (136 SE2d 136) (1964). Littleton II, supra at 666-667. In Ruhr Bros., this court held that

[i]n cases where mere negligence is relied on, before damages for mental pain and suffering are allowable, there must also be an actual physical injury to the person, or a pecuniary loss resulting from an injury to the person which is not physical; such an injury to a person’s reputation, or the mental pain and suffering must cause a physical injury to the person.

(Emphasis supplied.) Kuhr Bros., supra at 890. It is apparent, therefore, that recovery of damages for emotional distress is possible notwithstanding the plaintiff’s failure to satisfy the premier requirement of the impact rule — physical injury.

In Barrow v. Ga. Lightweight Aggregate Co., 103 Ga. App. 704 (120 SE2d 636) (1961), this court held that a plaintiff could claim damages for mental suffering caused by dynamite explosions on the plaintiff’s property, because a trespass upon real property can impose liability upon the tortfeasor when it causes damage “to property and person, including mental and physical injury of the owner and his family.” Id. at 709 (1). The Supreme Court discussed Barrow in Littleton II, holding that insofar as Barrow

stands for the proposition that mental injury flowing from a trespass is compensable, we approve it. However, to the extent that it may stand for the proposition that a plaintiff who has suffered a trespass may recover for emotional distress, we disapprove this case. We reiterate the rule that for a pecuniary loss to support a claim for damages for emotional distress, the pecuniary loss must occur as a result of a tort involving an injury to the person even though this injury may not he physical. An injury to the reputation would be such an injury.

(Emphasis supplied.) Littleton II, supra at 667 (2) (B).

Decided February 19, 2001

Larry E. Stewart, for appellant.

Brownstein & Nguyen, Jay D. Brownstein, for appellees.

It is therefore apparent that a plaintiff may, indeed, recover damages for emotional distress flowing from a defendant’s negligence, notwithstanding the absence of physical injury. But these damages are recoverable only if the plaintiff has suffered a pecuniary loss and has suffered an injury to the person, albeit not physical.

Applying these principles to the facts of this case, we find that Lam suffered a pecuniary loss. She was hospitalized and incurred substantial medical bills. Personal property was damaged in the collision. And although she suffered no physical injury, she did suffer an injury to her person, consisting of aggravation of her preexisting mental illness, which before the collision had been stable for years.

The example given in Littleton II and Ruhr Bros, of an injury to the person that is not physical is an injury to reputation. We see no reason, however, to limit the injury to the person permitting recovery of damages for emotional distress based upon a pecuniary loss to injuries to reputation. A mental injury, or the aggravation of a preexisting mental illness, is clearly an injury to the person. Lam’s mental injury can be well documented and proved, eliminating many of the policy reasons traditionally given both for the impact rule and for denying recovery for emotional distress unless a physical injury to the person exists. See Lee, supra at 587. No fear need exist that a flood of litigation or fraudulent claims will result, and the causal connection between aggravation of an existing mental illness and a traumatic event such as the collision here is at least as susceptible of expert medical proof as many physical soft tissue injuries.

We therefore hold that because Lam sustained a pecuniary loss resulting from a trespass and a mental injury to the person, she may pursue her claim for damages notwithstanding the lack of physical injury. The trial court correctly denied Nationwide’s motion for summary judgment.

Judgment affirmed.

Johnson, P. J., and Phipps, J., concur.

       We note that the holdings in Littleton II and Littleton TV have been partially overruled by our Supreme Court in Lee v. State Farm &c. Ins. Co., 272 Ga. 583 (533 SE2d 82) (2000). The changes do not directly affect our decision here, however, and they are discussed in Division 2 of this opinion.

       For a discussion of this history, see Lee, supra at 584-585.

        Whiten has itself been overruled on other grounds in Holmes v. Worthey, 159 Ga. App. 262, 271 (282 SE2d 919) (1981).

       Our holding is also consistent with the more liberal approach that appears to be required of us by the Supreme Court’s holding in Lee, supra.

       “Trespass” is defined as “[a]n unlawful interference with one’s person, property, or rights.” Black’s Law Dictionary (6th ed. 1990), p. 1502.


text:
    A00A2596.
    CARTER v. THE STATE.
    (546 SE2d 5)
   Pope, Presiding Judge.

Lisa Marie Carter was tried by a jury and convicted of aggravated assault with a knife and felony obstruction. She contends that the conviction for aggravated assault was improper because the victim was unafraid. She also challenges both convictions on the ground that she did not have the mental capacity to distinguish between right and wrong.

1. “On appeal from a criminal conviction, the evidence must be construed in the light most favorable to support the verdict, and an appellant no longer enjoys the presumption of innocence.” (Citation and punctuation omitted.) Hight v. State, 221 Ga. App. 574 (1) (472 SE2d 113) (1996). “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. [Cit.]” (Punctuation omitted.) Jackson v. State, 236 Ga. App. 260, 261 (511 SE2d 615) (1999).

A simple assault is defined as an act which places another in reasonable apprehension of immediately receiving a violent injury. OCGA § 16-5-20 (a) (2). An assault becomes aggravated in certain ways, including when it is perpetrated by use of a deadly weapon. OCGA § 16-5-21 (a) (2). So, if the victim is in reasonable apprehension of an immediate violent injury from a weapon, an aggravated assault has occurred. Dunagan v. State, 269 Ga. 590, 593 (2) (b) (502 SE2d 726) (1998). Because reasonable apprehension of injury is not the same as simple fear, the testimony that the victim was not afraid of the defendant does not preclude conviction. Hicks v. State, 211 Ga. App. 370, 373 (1) (439 SE2d 56) (1993).

The indictment charged that Carter assaulted Rony Lucero with a knife. Lucero testified that he was talking with some friends outside an apartment when Carter, whom he had never met before, approached. Although Lucero speaks only a little English, he understood that Carter was asking for help and claiming that someone was trying to harm her. But she looked like she was under the influence of alcohol or drugs, and the men ignored her. Carter walked away but returned and pulled out a knife. She “showed the knife and threatened them.” When asked if he was afraid of getting cut, Lucero said, “No, not. . . . We were cautious about it.” When she waved the knife, the men went inside the apartment and locked the door. When asked why they went inside, Lucero said, “Because she has a knife.” On cross-examination, he said that he was not really afraid of being “touched.” But he added, “I was not that afraid. I was just being cautious.” After the close of the cross-examination, the court asked the question again: “Were you or were you not afraid of what she might do to you with that knife?” Lucero responded, “I was a little afraid, but more than anything else, I was cautious.”

Lucero’s testimony amounts to some evidence of reasonable apprehension of injury. He testified that he was a little afraid and cautious, and he took measured steps to protect himself. The evidence was sufficient under the standard set forth in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. After the assault, the men called the police and Carter was eventually taken into custody. The testimony is clear that Carter was very uncooperative and difficult to handle and that she eventually “head-butted” a female officer, breaking her nose, which led to the conviction for felony obstruction.

Carter argues that neither conviction can stand because, as a result of combining alcohol and prescription medication, she did not have the mental capacity to distinguish between right and wrong.

OCGA § 16-3-2 provides that a person shall not be found guilty of a crime if “the person did not have mental capacity to distinguish between right and wrong” in relation to the act. OCGA § 16-3-4 (a) adds that a person may not be found guilty if he or she cannot distinguish between right and wrong because he or she is involuntarily intoxicated. But “[v]oluntary intoxication shall not be an excuse for any criminal act or omission.” OCGA § 16-3-4 (c). “OCGA § 16-3-4 limits the reach of OCGA § 16-3-2 so that the inability to distinguish between right and wrong is not a defense if the inability is a consequence of voluntary intoxication.” (Emphasis in original.) Foster v. State, 258 Ga. 736, 744 (10) (374 SE2d 188) (1988).

It is undisputed that prior to the actions that led to her arrest, Carter consumed alcohol while on prescription medication in direct contradiction of a doctor’s orders. Carter was cross-examined about it as follows:

Question: Doctor Orr told you particularly in relation to the Ativan, Desyrel, and Zoloft that drinking alcohol was a very bad idea, didn’t he?
Answer: Uh-huh.
Question: And you did it anyway?
Answer: Yes.
Question: And you substituted your experiences with alcohol and these drugs for Doctor Orr’s experience in the field. You substituted your judgment for his and took a drink that day, right?

Answer: Yes.

Carter went on to explain that she had never previously had a side effect from these drugs, not even with alcohol.

Decided February 19, 2001.

William C. Bushnell, for appellant.

Harry N. Gordon, District Attorney, William W. Tanner, Assistant District Attorney, for appellee.

The jury was fully instructed regarding the above law including that they could find Carter not guilty if her alleged impaired state was caused by being intoxicated as a result of “excusable ignorance.” See OCGA § 16-3-4 (b) (1). Carter’s defense of involuntary intoxication was properly presented to the jury. See generally Johnson v. State, 235 Ga. 486, 490-491 (1), (2) (220 SE2d 448) (1975); Burchfield v. State, 219 Ga. App. 40, 41 (1) (464 SE2d 27) (1995). There was sufficient evidence for a rational trier of fact to find beyond a reasonable doubt that she was not involuntarily intoxicated. Jackson v. Virginia, 443 U. S. 307.

Judgment affirmed.

Miller and Mikell, JJ, concur.


author: Blackburn, Chief Judge.

text:
    A00A1950.
    KRAFT v. ADAMS et al.
    (545 SE2d 69)
   Blackburn, Chief Judge.

Kent Kraft appeals from the trial court’s dismissal of his complaint against Michael Adams and other state officials, contending that the trial court erred by (1) ruling that he could not sue the defendants in their individual capacities under 42 USC § 1983 for actions taken in their official capacities and (2) dismissing his claim for attorney fees and costs under 42 USC § 1988. For the reasons set forth below, we affirm.

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

(Citations omitted.) Anderson v. Flake.

According to the allegations set forth in the complaint, Kraft is a former instructor at the University of Georgia, a state institution. In April 1999, Kraft learned that the University was holding proceedings to revoke the tenure of Dr. Nadeem Naqvi, a former colleague of his. On April 23, Kraft sent an e-mail message to S. Elizabeth Bailey, Associate Director for Legal Affairs for the University who was involved with prosecuting Naqvi, commenting on the Naqvi proceeding and requesting a copy of the University’s sexual harassment policy. On April 27, Kraft sent a second e-mail in which he criticized the handling of the Naqvi matter and threatened to contact the media. That afternoon, Bailey responded that she did not understand his communications and, furthermore, any subsequent communication should be made through her superior, Jere Morehead.

That evening, Kraft forwarded another e-mail to Bailey. This email was a copy of a communication sent to Scott Siegler at Granada Entertainment, a member of the media. Shortly thereafter, Kraft sent another e-mail to Bailey, explaining that the forwarded e-mail to Siegler had been sent to her by mistake and he threatened legal action by Siegler, Granada, and himself if she did not delete the message. A few minutes later, Bailey received a second e-mail from Kraft, slightly revised, again stating that the Siegler e-mail had been sent by mistake, but not threatening legal action. A few minutes later, Bailey received a third e-mail from Kraft, again slightly revised, and again stating that the Siegler e-mail had been mistakenly sent and threatening legal action. Kraft alleged that the three messages were sent due to an error in his computer server. Shortly after Bailey received the three messages, Kraft sent a fourth e-mail to Bailey, stating that a virus had attached her e-mail address to items he tried to mail out and threatening legal action if she disclosed the content of any of his messages.

On the morning of April 28, Kraft sent another e-mail stating that he had fixed the virus and that future e-mail would go through Morehead. On the afternoon of April 28, while Kraft was attending a hearing on the Naqvi matter, Officer Platt of the University Police Department served a barring notice on Kraft and escorted him off campus. The notice barred Kraft from all University properties for a period of two years. The notice requested that (1) no further e-mail be sent from him, (2) he make no further phone calls to any University department, and (3) future contact with the University be through written correspondence or legal representation. An amended barring notice was issued on July 1, barring Kraft from all University property for a period of 90 days, except that he could attend public meetings, visit his daughter (who was a student), or apply for employment.

Kraft alleged that Bailey and Morehead spoke to the University Police Department, specifically Officer Platt and Assistant Chief James E. Williamson, about issuing the barring notice and are, therefore, directly responsible for the barring notice. He further alleged that defendants Chuck Horton, the Chief of the University Police; Asa Boynton, Director of Public Safety; Michael Adams, University President; and Stephen Portch, University Chancellor, ratified the issuance of the barring notice.

Kraft asserted claims under 42 USC § 1983 for violations of his constitutional rights, including his right to due process, freedom of speech, and his Sixth Amendment right to a public trial. He also asserted a claim for attorney fees under 42 USC § 1988. The defendants filed a motion to dismiss, which the trial court granted, finding that Kraft had not stated a claim for relief under 42 USC § 1983.

1. Kraft contends that the trial court erred by ruling that he could not sue the defendants in their individual capacities under 42 USC § 1983 for actions taken in their official capacities. The trial court, citing Hafer v. Melo, stated that the defendants could not be sued in their individual capacities because they were acting in their official capacities. We agree that the defendants could not be sued in their individual capacities in this case, because individually, they were entitled to qualified immunity.

State officials may be held personally liable under 42 USC § 1983 if they, while acting under color of state law, caused the deprivation of a federal right. Hafer v. Melo, supra. Nonetheless,

[government officials performing discretionary functions are granted a qualified immunity shielding them from imposition of personal liability pursuant to 42 USC § 1983 insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known. Thus, the test is applied by considering the objective reasonableness of the official’s actions (irrespective of his subjective beliefs) in light of legal rules which were clearly established at the time the action was taken.

(Citations, punctuation and footnote omitted.) Bell v. City of Albany.

The burden is on the government official to demonstrate that the alleged constitutional violations occurred while she was acting in the scope of her discretionary authority. Once that is established, the burden then shifts to the plaintiff to establish that the defendant violated a clearly established statutory or constitutional right. This requirement that plaintiff show a clearly established right is a strenuous one. . . . [T]he shield of qualified immunity extends to all government actors but the plainly incompetent or those who knowingly violate the law.

(Citation omitted.) Sawyer v. Coleman.

In this case, to the extent the named defendants played a role in the issuance of the amended barring notice, the issuance did not violate any clearly established law. Although the State may not prohibit all communicative activity in public forums, it may enforce regulations of the time, place, and manner of expression which are content-neutral, are narrowly tailored to serve a significant government interest, and leave open ample alternative channels of communication. See Perry Ed. Assn. v. Perry Local Educators’ Assn. Here, although the barring notice restricted Kraft’s ability to make phone calls and send e-mail to the University for a set amount of time, it did allow him to contact the University through written correspondence or legal representation. We conclude that the issuance of the barring notice was tailored to the threat Kraft presented to the University in time, place, and manner and did not, therefore, violate any clearly established law.

2. The trial court did not err by dismissing Kraft’s claims that he was deprived of his due process rights because he did not receive a hearing on the barring notice. Kraft’s argument fails because he does not allege that he requested a hearing after having received the notice. Indeed,

[i]t is well settled that, even if a defendant has a due process right to a hearing, that right [might] be waived by failure to request a hearing. The trial court has no duty to initiate [a] hearing until requested by one of the parties. The party

Decided January 23, 2001

Reconsideration denied February 20,2001

Waters & Gross, Adam S. Caveney, David W. Griffeth, for appellant.

Thurbert E. Baker, Attorney General, Kathleen M. Pacious, Deputy Attorney General, John C. Jones, Senior Assistant Attorney General, B. Patricia Downing, Devon A. Orland, Assistant Attorneys General, for appellees.

seeking a hearing must take affirmative steps to request one.

(Citations and punctuation omitted.) Isaac v. State.

3. The trial court did not err by dismissing Kraft’s claim that he was deprived of his Sixth Amendment right to a public trial because that amendment pertains to criminal proceedings and Kraft does not allege that he was criminally prosecuted. U. S. Const., Amend. 6; see generally Waller v. State.

4. Kraft’s claim for attorney fees and costs under 42 USC § 1988 is rendered moot by the proper dismissal of his underlying claims.

5. By motion, the defendants have requested that this case be remanded to the trial court, because at the time of the appeal, the trial court had not ruled on their pending motion to dismiss the appeal for an unreasonable delay of two months by Kraft in paying the costs of the production of the record for appeal. Because of our ruling, this request is now moot.

Judgment affirmed.

Eldridge and Barnes, JJ, concur.

        Anderson v. Flake, 267 Ga. 498, 501 (2) (480 SE2d 10) (1997).

        Hafer v. Melo, 502 U. S. 21, 25 (112 SC 358, 116 LE2d 301) (1991).

        Bell v. City of Albany, 210 Ga. App. 371, 374 (436 SE2d 87) (1993).

        Sawyer v. Coleman, 245 Ga. App. 37, 38-39 (537 SE2d 193) (2000).

        Perry Ed. Assn. v. Perry Local Educators’ Assn., 460 U. S. 37, 45 (103 SC 948, 74 LE2d 794) (1983).

        Isaac v. State, 237 Ga. App. 723, 728 (516 SE2d 575) (1999).

        Waller v. State, 251 Ga. 124, 127 (303 SE2d 437) (1983).


author: Andrews, Presiding Judge.

text:
    A00A2102, A00A2103.
    LEIGAN et al. v. SEARS ROEBUCK & COMPANY; and vice versa.
    (546 SE2d 293)
   Andrews, Presiding Judge.

In Case No. A00A2102, plaintiff Mrs. Leigan appeals from the trial court’s partial grant of summary judgment to Sears Roebuck & Company (Sears) on her fraud claim based on a misleading termite inspection letter issued by Sears in connection with the Leigans’ purchase of the Reeses’ home. In Case No. A00A2103, Sears appeals from the trial court’s denial of its motion to compel arbitration of Mr. Leigan’s fraud claim based on the same letter.

Case No. A00A2102

1. The standards applicable to motions for summary judgment are announced in Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991). In reviewing a grant of summary judgment, this Court conducts a de novo review of the law and the evidence, Desai v. Silver Dollar City, 229 Ga. App. 160, 163 (1) (493 SE2d 540) (1997), giving the opposing party the benefit of all reasonable doubt and construing the evidence and all inferences and conclusions therefrom most favorably toward the party opposing the motion. Clark v. Cauthen, 239 Ga. App. 226, 227 (1) (520 SE2d 477) (1999); Moore v. Goldome Credit Corp., 187 Ga. App. 594, 596 (370 SE2d 843) (1988).

So viewed, the evidence was that Mr. and Mrs. Leigan had divorced in 1995 while living in Missouri. Subsequently, they reconciled, although they did not remarry until December 31, 1997. Mr. Leigan’s job required a move to Georgia, and he first looked at the Reeses’ house in October 1997. At that time, Mrs. Leigan was in Missouri with their children. Although Mr. Leigan sent Mrs. Leigan photos of the Reeses’ house, she did not see the home before it was purchased. The Reeses arranged for Sears to do the Official Georgia Wood Infestation Report (termite letter) required for the sale of the house, since the Reeses had a contract with Sears and Sears had treated the house for termites in 1996. The termite letter was dated November 22, 1997, and the sale of the Reeses’ home to Mr. Leigan was closed in late November 1997. Mrs. Leigan was still in Missouri at the time of the closing. Mr. Leigan alone signed the sales contract, and the title was issued in his name only. The termite letter reflected that no evidence of active or previous infestation was found and indicated the only treatment by Sears of the home was the original May 15,1996 treatment done for the Reeses. In fact, Sears had treated the home for live termites in February and March 1997. Mrs. Leigan and the children moved into the home on December 16, 1997. Live termites were found in the house on several occasions thereafter, and the house was retreated by Sears in 1998 and 1999. On April 18, 1998, Mr. Leigan and Sears entered into a Subterranean Termite Control Residential Customer Agreement. On September 23, 1998, Mr. Leigan conveyed a one-half undivided interest in the house to Mrs. Leigan.

The trial court granted Sears’ motion for summary judgment on Mrs. Leigan’s fraud claim, concluding that the element of justifiable reliance was absent as to her.

Mrs. Leigan’s deposition testimony regarding this issue is set out below:

Q. Would you have bought the house if you had known it had termites in it?
A. I didn’t buy the house.
Q. He [Mr. Leigan] said you had veto power over the decision to buy the house.
A. All I saw was a picture.
Q. He didn’t discuss the condition of the house with you at all?
A. Not at all.
Q. Your veto was limited to aesthetics?
A. Yes.
Q. You were not even in the state of Georgia when the inspection was done for termites in the house; is that right?
A. No.
Q. You never met Mr. [Philip Barbour, the Sears employee who did the inspection and termite letter]?
A. No.
Q. You never talked to anyone at Sears and was [sic] told there was a swarm at your house?
A. Correct.
Q. You were not present at the closing?
A. No.
Q. You executed no papers effectuating the sale of the house to your husband.
A. No.
Q. So you really relied on nothing anyone said about the house because you weren’t involved in the actual purchase of it?
A. Right.
Q. Is that accurate?
A. That’s accurate.

In opposition to Sears’ motion for summary judgment on her fraud claim, Mrs. Leigan submitted her affidavit, signed January 2, 2000, in which she stated that Mr. Leigan “on his own behalf and on my behalf, signed a contract to purchase the home. . . . After this, he attended the closing on the property and took title in his name only, but with the clear understanding that he was acquiring the property also for me.”

Initially, we conclude that the later given affidavit is inconsistent with the earlier given deposition testimony under Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27, 28 (1) (343 SE2d 680) (1986). There being no explanation for the inconsistency, Mrs. Leigan’s testimony is construed against her. Harrison v. Beckham, 238 Ga. App. 199, 202 (2) (518 SE2d 435) (1999); Hallberg v. Flat Creek Animal Clinic, 225 Ga. App. 212, 214 (1) (483 SE2d 671) (1997). Also, even if not inconsistent, her bare legal conclusion of agency (i.e., that he was acting on her behalf) creates no issue of fact on motion for summary judgment. Dews v. Ratterree, 246 Ga. App. 324, 326 (540 SE2d 250) (2000).

Finally, Mrs. Leigan’s claim that Mr. Leigan was her agent and she was defrauded because her agent was defrauded in connection with the purchase of the Reeses’ house also fails because of the equal dignity rule. OCGA § 10-6-2. Because a contract to purchase or convey interests in land must be in writing, any agency regarding that purchase must also be in writing. Augusta Surgical Center v. Walton & Heard Office Venture, 235 Ga. App. 283, 285 (1) (508 SE2d 666) (1998); East Piedmont 120 Assoc. v. Sheppard, 209 Ga. App. 664, 665 (434 SE2d 101) (1993).

Therefore, summary judgment for Sears was appropriate. There was no error. See ReMax North Atlanta v. Clark, 244 Ga. App. 890 (537 SE2d 138) (2000).

Case No. A00A2103

2. Sears contends that the trial court erred in denying its motion to compel arbitration of the Leigans’ fraud claim under the Georgia and Federal Arbitration Acts and that the trial court’s reliance on Allied-Bruce Terminix Cos. v. Dobson, 684 S2d 102 (Ala. 1995), was error.

(a) The arbitration clause upon which Sears based its motion is contained in the April 18, 1998 Subterranean Termite Control Residential Customer.Agreement between Sears and the Leigans. This document was signed five months after the fraud was alleged to have occurred in the November 22, 1997 termite letter. The termite letter contains no arbitration clause. Compare Results Oriented v. Crawford, 245 Ga. App. 432, 436 (1) (538 SE2d 73) (2000).

Decided February 20, 2001.

Warlick, Tritt & Stebbins, Charles C. Stebbins III, for appellants.

Ogletree, Deakins, Nash, Smoak & Stewart, Kevin Elwell, Jay M. Barber, for appellee.

Sears argues that the Reeses’ contract containing a similar arbitration clause was assigned to the Leigans, thereby requiring arbitration. This argument, however, is supported by no evidence of record, and the face of the agreement signed by the Leigans does not reflect any such assignment. Sears has failed to support its assertion of error. Galloway v. Linnell, 242 Ga. App. 221 (529 SE2d 226) (2000). There was no error in denying Sears’ motion to compel arbitration under either the Georgia or Federal Arbitration Act.

(b) The trial court, in denying Sears’ motion to compel arbitration, relied upon Allied-Bruce Terminix Cos., supra, which Sears contends was error. In light of our decision in Division 2 (a), supra, however, we need not consider this argument further.

Judgment affirmed.

Ruffin and Ellington, JJ, concur.

       The order partially granting and partially denying summary judgment was filed March 15,1999, and the order denying the motion to compel arbitration was filed March 10, 1999.

       Although the notice of appeal in Case No. A00A2103 states that the denial of partial summary judgment to Sears on Mr. Leigan’s fraud claim is the subject of the appeal as well as the denial of the motion to compel arbitration, the denial of partial summary judgment is not the subject of any enumeration of error here and is not further considered.

       The tort of fraud has five elements: (1) a false representation or omission of a material fact; (2) scienter; (3) intention to induce the party claiming fraud to act' or refrain from acting; (4) justifiable reliance; and (5) damages. Klusack v. Ward, 234 Ga. App. 178,179 (1) (507 SE2d 1) (1998); OCGA § 51-6-2 (a).

       The clause states that “The Customer and Sears agree that any and all claims or disputes arising out of, in connection with, or in relation to the interpretation, performance or breach of any provisions of this Agreement shall be resolved ... by final and binding arbitration.”


author: Johnson, Presiding Judge.

text:
    A01A0216.
    In the Interest of D. L. D. et al., children.
    (546 SE2d 11)
   Johnson, Presiding Judge.

The father of D. L. D., P. D. D., and N. L. D. appeals from a juvenile court order terminating his parental rights. In his sole enumeration of error, he contends the juvenile court did not have sufficient evidence to terminate his parental rights. We disagree and affirm the juvenile court’s order.

Viewing the evidence in favor of the juvenile court’s findings, the record shows that D. L. D. was born in April 1993, P. D. D. was born in August 1994, and N. L. D. was born in November 1996. In March 1994, the father and mother were arrested on drug charges, and the Whitfield Department of Family & Children Services (hereafter the “Department”) sought temporary legal custody of D. L. D. The father and mother consented to the Department’s temporary legal custody. Subsequently, the Department agreed to return D. L. D. to the mother with the condition that the father not be in the home because there had been domestic violence between the father and mother. In July 1994, D. L. D. was removed from the mother’s home due to instability and domestic violence.

Approximately three weeks later, P. D. D. was born. Sometime between October and December 1994, D. L. D. was returned to the mother’s home. However, both children were removed from the mother’s home on December 29, 1994, due to the conditions in the household. The deprivation petition stated that the house was filthy, dishes were dirty, and the yard had an unpleasant odor. Case plans were developed, and the Department provided intensive reunification services, including over $4,000 in financial assistance, to help reunite the family. On February 19, 1996, the two children were returned to the father and mother, and the Department provided six months of monitoring supervision.

The Department did not have any further involvement with the family until November 8, 1999, when it received a referral that the mother and father were using drugs, that the parents had separated, and that the children were truant from school and had lice. The Department substantiated the report of neglect and learned that a truancy petition had been filed by the school system. In addition, both parents tested positive for illegal drugs. The children were then placed in the Department’s temporary legal custody. The Department developed a case plan for the parents, as well as an alternative nonreunification case plan because of the family’s extensive involvement with the Department. The mother failed to comply with the case plan terms, and the father was incarcerated on February 1, 2000, for possession of methamphetamine with intent to distribute and being an habitual violator.

On April 24, 2000, the Department filed a petition to terminate parental rights and a motion to cease reunification efforts. On May 23, 2000, the juvenile court conducted a hearing on the petition and motion. Nine witnesses, including the father, testified.

Two caseworkers with the Department testified about the Department’s involvement with the family, the family’s living conditions (which included an unfurnished trailer heated only by kerosene), and the drug test results. The technician who conducted the father’s drug test testified that he ran two tests and both tests were positive for illegal drugs.

Another caseworker with the Department testified that other than two visits prior to his incarceration, the father’s only contact with the children were his attempts to place collect phone calls to the home where they were staying. He did not send the children letters and had not paid any child support. She recounted that in the two visits the father had prior to his incarceration, the children were happy, interacted with the father, exhibited no behavioral problems, and cried when the visits ended. She opined that the children appeared to have bonded with the father. She further reported that in the past few weeks D. L. D. had become uncontrollable and that all the children were going to receive counseling. In her opinion, even if the parents had attempted to comply with the Department’s case plan goals, the Department would still be concerned based on the family’s past history and the parents’ instability, drug abuse, failure to maintain a permanent and adequate home, and lack of stable employment.

A social worker with the Whitfield school system testified that from August 1999 to January 2000, D. L. D. attended four different schools, was not enrolled in any school on two different occasions, and was absent or not enrolled for a total of 49 days. During the same period, P. D. D. had attended two different schools and was either absent or not enrolled for a total of 35 days. The social worker stated that she had been unable to contact the parents and that the children’s learning and developmental skills were adversely affected by their excessive absences from school. A social worker with the Murray school system testified that during the 1998-1999 school year, D. L. D. missed 28 days of school and that she attempted to investigate the reasons for the absences. She visited the family’s home and talked to the mother, but then the family disappeared.

The mother testified that the father was a good father and denied that their relationship was violent. However, she also admitted the police were called to the family’s residences because of domestic disputes. She further acknowledged that she had lived in eight different places in the past two to three years, that she had not lived in any one place for more than a year, that she had failed to maintain employment, and that she had a drug problem. According to the mother, the father could care for the children properly, loved the children, and never abused them. She reported, however, that the father had not paid child support while the children were in the Department’s custody and that he had been incarcerated for about nine months of both D. L. D.’s and P. D. D.’s lives and four months of N. L. D.’s life.

The father testified that he was the father of all three children and had two other children who were in the custody of his former sister-in-law. He recounted that he was first arrested and convicted in 1988 on a forgery charge and spent ten months in jail following his conviction for a probation violation. He pled guilty to a charge of possession with intent to distribute marijuana in 1994 and was released from prison on that charge in 1995. He testified that at the time of the hearing he was incarcerated for convictions of possession of methamphetamine with intent to distribute and of being an habitual violator, although he would be out of prison in 90 days after completing boot camp. The father maintained that he planned to stay out of trouble once he was released from prison.

The father described his sporadic work history. He maintained that although he graduated from high school and took one year of college courses in computer technology, he was denied employment in that field because of his criminal background. He conceded that the family had moved “several times” in the last five years. He also acknowledged that he and the mother had been unstable, had used drugs over the years, and had done some things they should not have done. He offered no excuse for the positive drug test in December 1999 and testified that he had not seen his children since January 2000. According to the father, he loves the children very much, wants another chance to parent them, and thinks he could do a better job this time.

The children’s guardian ad litem recommended that the juvenile court terminate the mother’s parental rights. However, he was equivocal in his remarks concerning the father. While he believed clear and convincing evidence had been presented showing that the children were deprived due to the actions of both parents, he was sympathetic to the father and believed the father deserved another chance.

On appeal, we view the evidence in a light most favorable to the juvenile court’s order and determine whether a rational trier of fact could have found by clear and convincing evidence that the parent’s rights should have been terminated; we do not weigh the evidence and must defer to the trial judge as the factfinder.

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, as defined in OCGA § 15-11-94 (b). Parental misconduct is found when the child is deprived, the cause of the deprivation is lack of proper parental care or control, the cause of the 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, it must consider whether termination of parental rights is in the best interest of the child, considering the child’s physical, mental, emotional, and moral condition and needs, including the need for a secure, stable home.

In the present case, the father asserts that the juvenile court erred in terminating his parental rights because there was insufficient evidence of parental misconduct or inability. However, we find clear and convincing evidence warranting the termination of his parental rights.

No question exists that the children were deprived. Prior orders finding the children deprived were not appealed, and the juvenile court took judicial notice of these orders. Accordingly, the father is bound by the juvenile court’s prior finding of deprivation.

Other evidence supports the juvenile court’s determination that the remaining requirements of OCGA § 15-11-94 (b) (4) (A) were established. Testimony at the hearing established that the children’s deprivation was caused by the father’s conduct. His incarcerations and his criminal record have affected his ability to properly parent and provide for his children. In fact, the father contends that his criminal record is a cause of his failure to obtain full-time employment. He further contends that the children’s truancy problems are a result of his incarcerations. The truancy problems are also a result of the family’s nomadic lifestyle, including the father’s attempts to run from the law before his arrest in June 1999. In determining whether the cause of the deprivation was lack of proper parental care or control, the juvenile court was authorized to consider the father’s records of multiple convictions for felonies and periods of imprisonment, which had a demonstrable negative effect on the quality of his relationship with the children.

The father argues that there is insufficient evidence showing that the children’s deprivation is likely to continue. However, it is well established that evidence of past conduct may be considered in determining whether the deprivation is likely to continue if the children are returned to the father. The past conduct of the father in this case certainlyjustifi.es such a finding. Where a parent has a history of drug abuse problems, the court may consider that history in determining whether the children are without the proper care and control and whether the deprivation is likely to continue. The father failed to remain drug free, failed to remain out of jail, failed to obtain stable employment, and failed to provide a stable home. While we recognize that the father sincerely loves his children and has bonded with them, we must conclude, based on the evidence, that a rational trier of fact could have found by clear and convincing evidence that the children’s deprived conditions were likely to continue. Under these circumstances, we must also conclude that there was sufficient evidence to support the juvenile court’s finding that the continued deprivation is likely to cause serious physical, mental, emotional, or moral harm to the children.

Decided February 20, 2001.

Michael J. Tuck, for appellant.

Thurhert E. Baker, Attorney General, Dennis R. Dunn, Deputy Attorney General, William C. Joy, Senior Assistant Attorney General, Shalen S. Nelson, Assistant Attorney General, Waycaster, Morris, Johnson & Dean, Cynthia N. Johnson, for appellee.

The evidence was also sufficient to show under OCGA § 15-11-94 (a) that termination of the father’s parental rights was in the best interests of the children, considering the physical, mental, emotional, and moral needs of the children and the children’s need for a stable and secure home. The same factors that show the existence of parental misconduct or inability can also support a finding that the termination of the parental rights would be in the children’s best interests. In this regard, our review of the entire record shows that there was sufficient clear and convincing evidence to support the juvenile court’s finding that the termination of the father’s parental rights would be in the children’s best interests.

While the father promises to change his life, this Court has repeatedly recognized that “[t]he decision as to a child’s future must rest on more than positive promises which are contrary to negative past fact.” Based on the father’s past behavior, the length of time his problems have persisted, and his own admissions, the juvenile court did not err in terminating his parental rights.

Judgment affirmed.

Ruffin and Ellington, JJ, concur.

        In the Interest of D. L. N., 234 Ga. App. 123, 125 (2) (506 SE2d 403) (1998).

       OCGA § 15-11-94 (b) (4) (A).

       OCGA § 15-11-94 (a): In the Interest of B. D., 236 Ga. App. 119 (511 SE2d 229) (1999).

        In the Interest of L. H., 236 Ga. App. 132, 133-134 (511 SE2d 253) (1999); In the Interest of E. C., 225 Ga. App. 12, 14-15 (482 SE2d 522) (1997).

       See In the Interest of F. C., 239 Ga. App. 545-546 (521 SE2d 470) (1999).

       See In the Interest of B. D., supra at 121 (2).

       See In the Interest of J. M. D., 221 Ga. App. 556, 558 (472 SE2d 123) (1996).

        In the Interest of C. N. H., 238 Ga. App. 50, 53-54 (2) (517 SE2d 589) (1999).

       (Citation and punctuation omitted.) In the Interest of S. J. C., 234 Ga. App. 491, 494 (1) (507 SE2d 226) (1998).