text:
    77398.
    PORTER v. BUCKEYE CELLULOSE CORPORATION.
    (377 SE2d 901)
   Sognier, Judge.

William Morgan Porter brought suit against Buckeye Cellulose Corporation for wrongful discharge from employment and wrongful failure to pay disability benefits. The trial court granted Buckeye’s motion for summary judgment and Porter appeals.

The record reveals that appellant was employed by appellee, a subsidiary of the Procter & Gamble Company, from December 3, 1979, until his discharge on July 3, 1986. Appellant was not employed pursuant to a written employment contract or a contract for a definite term. Appellant was a participant in the Procter & Gamble Disability Benefit Plan (the Plan), an employee benefit plan funded by employee contributions and administered by a Board of Trustees (the Trustees) appointed pursuant to Plan provisions. On December 5, 1985, appellant was injured in an automobile accident not related to his job and was unable to work for some period of time thereafter. Appellant applied for and received Plan disability benefits for the period of December 5, 1985 through March 30, 1986, but his request for benefits from that time until the date of his discharge was denied by the Trustees on the ground that he was not totally disabled after March 30th. He was terminated by appellee for “excessive absenteeism” and failure to return to work after prior notice.

1. Appellant contends the trial court erred by granting summary judgment to appellee on his state law claim for wrongful discharge because material fact questions remain as to whether appellant was discharged without cause in violation of an oral contract of employment or was discharged because he applied for disability benefits.

“An indefinite hiring may be terminated at will by either party, with or without cause, and there is no cause of action against an employer for an alleged wrongful termination. [Cits.]” Meeks v. Pfizer, Inc., 166 Ga. App. 815, 816 (305 SE2d 497) (1983); see OCGA § 34-7-1. Appellant does not allege that his employment with appellee was for a definite period. Even assuming, without deciding, that appellant’s allegations that statements of his supervisors or the Buckeye employee manual created a contract of employment are correct, he has produced no evidence that such a contract established a definite period of employment. Thus, as a matter of law appellant’s employment was terminable at will, and appellee could discharge him with or without cause and regardless of motive, Bendix Corp. v. Flowers, 174 Ga. App. 620 (330 SE2d 769) (1985), and accordingly summary judgment was properly granted to appellee on this claim.

2. Appellant also enumerates as error the trial court’s grant of summary judgment to appellee on claims raised in his original and amended complaints concerning alleged violations of the Employee Retirement Income Security Act (ERISA), 29 USC § 1001 et seq. Appellant argues the trial court erroneously concluded it lacked subject matter jurisdiction to entertain appellant’s ERISA claims because ERISA preempts any state law action.

(a) Liberally construed, appellant’s original complaint states a claim against appellee for failure to pay Plan disability benefits. The parties agree the Plan is covered by ERISA, and therefore, we must determine whether the claim for denial of benefits is preempted by ERISA, and if so, whether the trial court retained concurrent jurisdiction.

With the exception of four narrow exclusions not relevant to this action, Congress has mandated that ERISA “shall supersede any and all State laws insofar as they may now or hereafter relate to any employee benefit plan.” 29 USC § 1144 (a); Whitaker v. Texaco, Inc., 566 FSupp. 745, 748 (N.D. Ga. 1983). “The term ‘State law’ includes all laws, decisions, rules, regulations, or other State action having the effect of law,” 29 USC § 1144 (c) (1), and any state law having “a connection with or a reference to” an employee benefit plan covered by ERISA is preempted. Shaw v. Delta Air Lines, 463 U. S. 85, 97 (103 SC 2890, 77 LE2d 490) (1983). Federal district courts have exclusive jurisdiction over all ERISA claims except those brought by a plan participant or beneficiary “to recover benefits due to him under the terms of his plan, to enforce his rights under the terms of the plan, or to clarify his rights to future benefits under the terms of the plan.” 29 USC § 1132 (a) (1) (B); see 29 USC § 1132 (e) (1).

Appellant seeks to recover disability benefits he contends were due pursuant to the Plan provisions but wrongfully denied by appellee. This claim clearly relates to an employee benefit plan and thus is preempted by ERISA. 29 USC § 1144 (a); Pilot Life Ins. Co. v. Dedeaux, 481 U. S. 4 (107 SC 1549, 95 LE2d 39) (1987); Belasco v. W.K.P. Wilson & Sons, 833 F2d 277 (11th Cir. 1987). However, concurrent jurisdiction for state courts is expressly retained for actions to recover plan benefits, 29 USC § 1132 (a) (1) (B); (e) (1), and accordingly the trial court erred by concluding it had no subject matter jurisdiction over appellant’s claim to recover disability benefits. See Bittner v. Sadoff &c. Indus., 728 F2d 820, 825 (7th Cir. 1984).

Nonetheless, the trial court also found that appellee was not a proper party to an action to recover disability benefits because appellee was neither a party to nor a fiduciary of the Plan. The undisputed evidence reveals that appellant’s request for benefits was denied by the Trustees, and appellee is not a Trustee under the Plan. There is no evidence appellee had any responsibility for or control over the Trustees’ decision. Consequently, summary judgment in favor of appellee on this claim was proper because it made a prima facie showing of entitlement to judgment unrebutted by appellant, see Leonaitis v. State Farm &c. Ins. Co., 186 Ga. App. 854, 856 (368 SE2d 775) (1988), and a correct trial court judgment will not be reversed regardless of the reasoning employed. Coren v. Puritan Ins. Co., 184 Ga. App. 667, 669 (1) (362 SE2d 380) (1987).

(b) The original complaint included only the claims for wrongful discharge and failure to pay disability benefits. Appellant later amended his complaint to assert claims against the Trustees for breach of Plan obligations by failing to pay benefits, wrongful discharge in violation of Plan rights, and breach of fiduciary duties, all of which were based on ERISA. Although appellee observes in its brief before this court that the amendment did not expressly include appellee as a defendant, appellee did move for summary judgment on the claims alleged in the amended complaint, and evidence was presented relating to those issues. The trial court apparently construed the complaint as amended to add the additional claims against appellee, which it was authorized to do pursuant to OCGA § 9-11-15 (b), and as a result “the pleadings are deemed amended to conform to the evidence presented . . . .” DeLoach v. Foremost Ins. Co., 147 Ga. App. 124, 125 (1A) (248 SE2d 193) (1978). Accordingly, we must determine whether the trial court properly granted summary judgment to appellee on those claims.

We do agree with appellee that the trial court did not have subject matter jurisdiction over the remaining ERISA claims asserted by appellant which are applicable to appellee. The allegation that appellant was unlawfully discharged “for exercising his rights pursuant to the plan” falls squarely within the parameters of 29 USC § 1140, which proscribes discharge of a plan participant “for exercising any right to which he is entitled under the provisions of an employee benefit plan,” and thus is preempted by ERISA. 29 USC § 1144 (a); see Kelly v. IBM Corp., 573 FSupp. 366, 370-371 (E.D. Pa. 1983), aff’d mem., 746 F2d 1467 (3rd Cir. 1984); Johnson v. Transworld Airlines, 149 Cal. App. 3d 518 (196 Cal. Rptr. 896, 900-902) (1983); Witkowski v. St. Anne's Hosp., 113 Ill. App.3d 745 (447 NE2d 1016, 1019-1020) (1983). Unlike appellant’s claim for recovery of plan benefits, this unlawful discharge claim arises under 29 USC § 1132 (a) (3), and consequently does not fall within the category of claims for which concurrent jurisdiction is authorized. See 29 USC § 1132 (a) (1) (B); (a) (3); (e) (1); see also Johnson, supra at 904; Witkowski, supra at 1020-1021; see generally Kross v. Western Elec. Co., 534 FSupp. 251, 252-254 (N.D. Ill. 1982). Similarly, the breach of fiduciary duty claim is preempted by 29 USC § 1109, which imposes personal liability upon plan fiduciaries for breach of “any of the responsibilities, obligations, or duties imposed upon fiduciaries by [ERISA],” see Iron Workers Local v. Bowen, 624 F2d 1255, 1259 (5th Cir. 1980); Thomas v. Best, 482 NYS2d 368, 371 (104 AD2d 37) (1984), and federal courts have exclusive jurisdiction because such a claim falls within Section 1132 (a) (3) of Title 29 rather than within Section 1132 (a) (1) (B). See Thomas, supra.

However, though the trial court was correct in concluding that it had no subject matter jurisdiction, the court was incorrect insofar as the judgment was styled as a grant of summary judgment rather than a grant of a motion to dismiss. Although this point was not raised by either party, we are constrained to note that a motion for summary judgment is designed to test the merits of a cause of action and cannot be granted on a matter in abatement. C. W. Matthews &c. Co. v. Capital Ford, 149 Ga. App. 354, 357 (254 SE2d 426) (1979). Because subject matter jurisdiction is such a matter, Ogden Equip. Co. v. Talmadge Farms, 232 Ga. 614, 615 (208 SE2d 459) (1974), it must be resolved on a motion pursuant to OCGA § 9-11-12 (b), not by a motion for summary judgment. See id.; see also C. W. Matthews, supra. Therefore, “[w]e affirm the judgment of the trial court with direction that said judgment be amended to show that the dismissal is not on the merits of the appellant’s claim and is without prejudice.” Dawson v. McCart, 169 Ga. App. 434, 435 (2) (313 SE2d 135) (1984).

3. Appellant next enumerates as error the trial court’s denial of his motion to add a party. The record reveals that when appellant amended his complaint to allege additional ERISA claims as discussed in Division 2 (b), he also moved, pursuant to OCGA § 9-11-19, to add the “Trustees of the Procter & Gamble Disability Benefit Plan” on the ground that he could not obtain complete relief in their absence, but the trial court denied the motion.

“A person who is subject to service of process shall be joined as a party in the action if: (1) In his absence complete relief cannot be afforded among those who are already parties . . . .” OCGA § 9-11-19 (a). “Where an additional defendant is essential for a just adjudication among the existing parties . . . upon proper motion the trial court should grant the joinder.” (Emphasis supplied.) Smith v. Foster, 230 Ga. 207, 208 (1) (196 SE2d 431) (1973). The trial court did not err by denying the motion to add the Trustees as defendants on the claims for breach of fiduciary duty and discharge in violation of Plan rights because the court had no subject matter jurisdiction, but we do find error in the denial of the motion to add the Trustees as to the claim for denial of benefits. We found in Division 1 that the Trustees had exclusive authority to grant or deny participants’ requests for disability benefits, and that the trial court had concurrent jurisdiction over appellant’s claim for recovery of Plan benefits. Accordingly, we find that the Trustees were indispensable parties to appellant’s action to recover disability benefits, and we reverse the denial of appellant’s motion to add the Trustees as additional defendants on the benefit denial claim. See generally S.D.H. Co. v. Stewart, 135 Ga. App. 505, 508-509 (2) (218 SE2d 268) (1975). However, because the Plan states that the Board of Trustees shall be composed of five Procter & Gamble employees but appellant did not name the individual Trustees in his pleadings, we do not intimate whether the trial court can obtain personal jurisdiction over the Trustees or whether the benefit denial claim must be dismissed for failure to join indispensable parties. See Coe v. Greenville Credit &c. Co., 164 Ga. App. 521, 523 (3) (298 SE2d 36) (1982); Midland Nat. &c. Ins. Co. v. Emerson, 121 Ga. App. 427 (a) (174 SE2d 211) (1970).

4. Appellant also contends the trial court erroneously denied his motion to compel discovery. The record reveals that on September 26, 1987, appellant served interrogatories, a document production request, and a request for admissions upon appellee, and that appellee answered only the request for admissions within the statutory time limit. Appellant filed a motion to compel, in which he moved the court to strike appellee’s answer and enter a default judgment and award attorney fees, on December 30, 1987, and scheduled a hearing on the motion for January 26,1988. Appellee then served responses to the remaining discovery on January 25th, and the trial court subsequently denied appellant’s motion to compel.

OCGA § 9-11-37 (d) (1) provides that if a party fails to respond to discovery, upon motion the trial court may enter an order compelling discovery, imposing sanctions, or both, and that the court “shall require the party failing to act” or its counsel to pay attorney fees “unless the court finds that the failure was substantially justified or that other circumstances make an award of expenses unjust.” As a general rule, the drastic sanctions of default and dismissal should be invoked only when the failure to respond to discovery “ ‘is wilful, in bad faith or in conscious disregard of an order.’ [Cit.]” Joel v. Duet Holdings, 181 Ga. App. 705, 707 (353 SE2d 548) (1987). Trial judges have broad discretion in applying discovery sanctions, id., and this court will not reverse a trial court’s decision on discovery motions absent a clear abuse of discretion. Nixon v. Sandy Springs Fitness Center, 167 Ga. App. 272 (1) (306 SE2d 362) (1983). There is some evidence in the instant case that the severe sanctions sought by appellant were not appropriate because there was not a total failure to comply with discovery, and appellant had obtained much of the requested information through discovery in another lawsuit pending between the parties. Accordingly, under these circumstances we find no abuse of discretion in the denial of appellant’s motion.

Decided January 11, 1989.

James N. Finkelstein, for appellant.

5. Appellant’s final enumeration of error is that the trial court erred by granting appellee’s motion for attorney fees. We agree. A review of the record discloses that appellee filed a counterclaim for abusive litigation under the authority of Yost v. Torok, 256 Ga. 92 (344 SE2d 414) (1986). After the January 1988 hearing on appellant’s motions to compel and to add a party, the trial court entered an order requiring appellant to show cause on March 15, 1988, why appellee should not be awarded attorney fees it incurred in defending the motion to compel, and also set the hearing on appellee’s summary judgment for the same day. Appellee states that at the March hearing, which appellant did not attend, appellee moved orally for an award of attorney fees pursuant to OCGA § 9-15-14. The trial court then entered summary judgment in favor of appellee on the complaint and also on appellee’s counterclaim, and awarded attorney fees of $500 against appellant’s counsel pursuant to OCGA § 9-15-14 and Yost, supra, based on the court’s finding that the suit was “frivolous, groundless and unreasonable” and displayed “a complete absence of justiciable issues of law or fact.”

The damages recoverable under Yost consist of special damages other than attorney fees and expenses of litigation. Ferguson v. City of Doraville, 186 Ga. App. 430, 433 (367 SE2d 551) (1988). Therefore, the trial court erred by awarding attorney fees to appellee under Yost. Moreover, Yost claims may be decided only after the underlying action has been resolved, Ferguson, supra, and because we have found that this action must be remanded for further action by the trial court, any Yost award is premature. An award of attorney fees pursuant to appellee’s OCGA § 9-15-14 motion is similarly erroneous at this stage of the litigation because we have concluded that appellant’s claim is not devoid of “any justiciable issue of law or fact.” OCGA § 9-15-14 (a). Further, we note that attorney fees may not be awarded absent proof of their value, First Bank of Clayton County v. Dollar, 159 Ga. App. 815, 817 (4) (285 SE2d 203) (1981), and there is no indication in the record that such evidence was proffered in this case. Accordingly, we vacate the award of attorney fees.

Judgment affirmed in part; reversed in part; vacated in part; and case remanded with direction.

Carley, C. J., concurs. Deen, P. J., concurs in the judgment only.

John G. Skinner, Dan T. Carter, for appellee.


source: Caselaw Access Project

author: Carley, Chief Judge.

license: Public Domain

text:
    77575.
    HALL v. THE STATE.
    (377 SE2d 907)
   Carley, Chief Judge.

Appellant was tried before a jury and found guilty of the “manufacture of non-tax paid distilled spirits” in violation of OCGA § 3-3-27 (a) (1). He appeals from the judgment of conviction and sentence entered by the trial court on the jury’s verdict.

1. Appellant enumerates the general grounds, urging that the evidence showed only his presence at the still where the liquor was being produced.

“One’s presence at a still is not alone sufficient to sustain his conviction of manufacturing intoxicating liquor. In addition there must be shown some act or acts essential to the illegal manufacture of the liquor. [Cit.]” Harris v. State, 119 Ga. App. 684, 685 (168 SE2d 337) (1969). In the present case, the evidence did show more than appellant’s mere presence at the still. The State produced direct evidence that appellant was actively working at the still. Just prior to his arrest, appellant was personally observed by a police officer. Although the officer could not see exactly what it was that the appellant was doing “as far as pouring something in or stirring something,” the officer’s testimony did show that he had seen appellant actively engaged in the general operation of the still. “One who is present at a distillery when liquor is being manufactured and personally assists in any way in the manufacture is guilty of manufacturing liquor. . . . [Cits.]” (Emphasis supplied.) Tanner v. State, 90 Ga. App. 789, 791 (2) (84 SE2d 600) (1954). From the eyewitness testimony and the circumstantial evidence produced at trial, a rational trior of fact could reasonably have found proof of appellant’s guilt beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Tanner v. State, supra.

2. Appellant enumerates a portion of his sentence as erroneous. The specific enumeration is that the trial court erred insofar as it imposed a requirement that appellant pay “restitution for court-appointed attorney’s fees as a condition of probation without making a determination of his ability to pay.”

A trial court, having appointed legal counsel to represent a criminal defendant under the provisions of the Georgia Criminal Justice Act, may “ ‘tax additional amounts onto any fine or restitution where a criminal defendant was represented by a full or part-time public defender, but . . . only ... to the extent of the individual defendant’s financial capability to pay.’ [Cit.]” Fowler v. State, 184 Ga. App. 177, 178 (360 SE2d 918) (1987). “Although the trial court [in the present case] determined at the sentencing hearing that the appellant [was regularly employed], there is no indication in the record that the court made any attempt to determine the amount of [appellant’s] assets, expenses, [income], or outstanding obligations, so as to determine [his] ability to reimburse the county for the cost of [his] legal representation. See OCGA § 17-12-10 (a). In fact, the judge . . . [appointed appellant’s] trial counsel to continue to represent [him] on appeal. The record obviously provides no basis for a determination that the appellant was ‘able to provide for the employment of an attorney.’ ” Fowler v. State, supra at 178. “[T]he trial court inappropriately sentenced the indigent defendant to pay for the cost of his legal representation, where the record provides no basis for a determination that he was able to pay for the employment of the attorney. Accordingly, that portion of the sentence must be vacated.” Owens v. State, 187 Ga. App. 262, 263 (1) (369 SE2d 919) (1988). The trial court is, therefore, directed to vacate as a condition of appellant’s probated sentence the requirement that restitution of attorney’s fees be made.

Decided January 11, 1989.

Jones & Geeter, Shane M. Geeter, for appellant.

Joseph H. Briley, District Attorney, Rosanna Musengo, Assistant District Attorney, for appellee.

Judgment of conviction affirmed. Sentence affirmed in part and reversed in part.

Deen, P. J., and Sognier, J., concur.


text:
    77603.
    MORAN v. NAV SERVICES et al.
    (377 SE2d 909)
   Carley, Chief Judge.

Appellant-plaintiff filed a complaint, asserting claims for breach of contract and fraud against appellee-defendants. Appellees answered, denying the material allegations of the complaint. After a period of discovery, appellees moved for summary judgment as to both counts of appellant’s complaint. Appellant appeals from the trial court’s grant of appellees’ motion for summary judgment.

1. On appellees’ motion for summary judgment, the trial court had before it two documents which had been executed on April 3, 1986. The first of the documents was denominated a “Memorandum of Sales Agreement” and, by its terms, this agreement evidences the purchase by appellee NAV Services (NAV) of all of the stock of Atlanta Tours, Inc. (ATI). The second document was denominated a “Memorandum of Agreement” and, by its terms, this agreement evidences the employment of appellant by ATI. In opposition to appellees’ motion for summary judgment, appellant urged that the two agreements, although ostensibly entirely separate contracts, should be construed as forming but one agreement whereby appellant’s employment with ATI was an element of the consideration for ATI’s agreement to be purchased by appellee NAV. In support of appellant’s contention that her claims against appellees were ultimately premised upon a contract of sale rather than of employment, she offered parol evidence as to the intentions of the parties. The trial court, however, refused to construe the two agreements together. Appellant enumerates this evidentiary ruling as erroneous.

“In cases of contemporaneous agreements between the same parties with relation to the same subject matter, each writing may be used to ascertain the true intention of parties and may authorize a determination that[,] when construed together[,] they constitute^] as a whole[,] but one contract. [Cit.]” (Emphasis supplied.) Employers Commercial Union Ins. Co. v. Wrenn, 132 Ga. App. 287, 288 (2) (208 SE2d 124) (1974). In the present case, however, the two agreements, although apparently contemporaneous, are not between the same parties and are not related to the same subject matter. Accordingly, the principle of Wrenn would not be applicable. The only contract to which appellant is a party is the “Memorandum of Agreement.” The unambiguous “Memorandum of Agreement” is not amenable to supplementation or elaboration through the use of parol evidence. Gatins v. NCR Corp., 180 Ga. App. 595 (349 SE2d 818) (1986). As the “Memorandum of Agreement” clearly relates only to the employment of appellant by ATI, the trial court did not err in so holding.

2. The trial court found that the “Memorandum of Agreement” constituted an employment contract which was terminable at will. Appellant enumerates this finding as erroneous.

As the contract gives no indication of the duration of the employment, it necessarily follows that appellant’s employment “was for an indefinite period, terminable at the will of either party.” Hickman Datsun v. Foster, 181 Ga. App. 229, 230 (1) (351 SE2d 678) (1986). Accordingly, this enumeration is without merit.

3. The trial court’s grant of summary judgment in favor of appellees on appellant’s fraud claim is enumerated as error. Appellant urges that a genuine issue of material fact remains as to whether appellees had no intention of honoring the “Memorandum of Agreement” at the time that it was executed.

“One cannot claim to be defrauded about a matter equally open to the observation of all parties where no special relation of trust or confidence exists. [Cits.] Further, in the absence of special circumstances one must exercise ordinary diligence in making an independent verification of contractual terms and representations, failure to do which will bar an action based on fraud. [Cits.]” Hubert v. Beale Roofing, 158 Ga. App. 145, 146 (279 SE2d 336) (1981). See also Chastain v. Schomburg, 258 Ga. 218 (367 SE2d 230) (1988); Craft v. Drake, 244 Ga. 406 (260 SE2d 475) (1979); Rhodes v. Perimeter Properties, 187 Ga. App. 55 (369 SE2d 332) (1988). Pursuant to its unambiguous terms, the “Memorandum of Agreement” was an employment contract for an indefinite period and was, therefore, terminable at will by either party. There is absolutely no evidence that appellees did not intend to honor the “Memorandum of Agreement” at the time that it was executed. To the contrary, the undisputed evidence shows that there has never been a failure on the part of appellees to honor the terms of the “Memorandum of Agreement.” Termination of appellant’s employment at appellees’ will is in conformity with, not violative of, the intent of the agreement.

Decided January 12, 1989.

M. Glenn Howell, Sr., for appellant.

James C. Gaulden, Jr., for appellees.

As additional support for her fraud claim, appellant relies upon evidence of a parol representation allegedly made by appellees at the time the documents were executed. According to appellant, she was assured of employment for a three-year period. “Although fraud can be predicated on a misrepresentation as to a future event where the defendant knows that the future event will not take place ([cits.]), fraud cannot be predicated on a promise which is unenforceable at the time it is made. [Cits.]” Beasley v. Ponder, 143 Ga. App. 810 (240 SE2d 111) (1977). Even assuming that appellant’s proffered parol evidence as to appellees’ alleged promise that her employment was guaranteed for a period of three years was otherwise admissible to vary the terms of the unambiguous written agreement, her fraud claim would still fail. Any agreement that is not to be performed within one year of the making thereof must be in writing to be enforceable. OCGA § 13-5-30 (5). Accordingly, as the alleged parol misrepresentation of a three-year term of employment embodied a promise which was unenforceable at the time it was made, it would not constitute actionable fraud. See Beasley v. Ponder, supra. The trial court correctly granted summary judgment in favor of appellees as to appellant’s fraud claim.

Judgment affirmed.

Deen, P. J., and Sognier, J., concur.


author: Benham, Judge.

text:
    77319.
    WITTSCHEN v. THE STATE.
    (377 SE2d 681)
   Benham, Judge.

Appellant was convicted of two counts of criminal attempt to commit child molestation. OCGA § 16-4-1. On appeal, he contends that the trial court’s denials of his motions for directed verdict and for new trial were erroneous inasmuch as several essential elements of the crimes were not proven.

1. Two girls, 12 and 8 years old at the time of the incident, identified appellant as the man who drove a van on the residential street where they were roller skating, stopped the van, held up dollar bills, and asked them if they would like to have the money. When the older girl responded affirmatively, appellant said, “Let me stick my hand down your pants.” Both girls then ran away from the van, and appellant drove off.

“A person commits the offense of criminal attempt when, with intent to commit a specific crime, he performs any act which constitutes a substantial step toward the commission of that crime.” OCGA § 16-4-1. “A person commits the offense of child molestation when he does any immoral or indecent act to or in the presence of or with any child under the age of 14 years with the intent to arouse or satisfy the sexual desires of either the child or the person.” OCGA § 16-6-4 (a). “An attempt to commit a crime consists of three elements: first, the intent to commit the crime; second, the performance of some overt act towards the commission of the crime; and third, a failure to consummate its commission. [Cit.]” Howell v. State, 157 Ga. App. 451 (4) (278 SE2d 43) (1981).

Appellant contends the State presented no evidence that appellant committed an overt, unlawful act. He points out that driving a van, rolling down a window, and holding up money is each a lawful act. However, when these individual, seemingly innocuous, acts are taken together and combined with the words uttered by appellant, there is evidence of an act inexplicable as a lawful act. See Adams v. State, 178 Ga. App. 261 (2b) (343 SE2d 747) (1986). See also McGinnis v. State, 183 Ga. App. 17 (1) (358 SE2d 269) (1987); Helton v. State, 166 Ga. App. 662 (1) (305 SE2d 592) (1983).

2. Appellant contends that asportation of the child is an essential element of the crime with which he was accused. The indictment charged that appellant “did with intent to commit the crime of child molestation . . . entice the [child victim] to get into the van of [appellant] by [appellant] offering said child money to let [appellant] put his hand down inside of the pants of said child. . . .” While the appellate courts have held that asportation is an essential element of the crime of enticing a child for indecent purposes (OCGA § 16-6-5 (a); Thompson v. State, 186 Ga. App. 471 (3) (367 SE2d 320) (1988)), appellant was not charged with a violation of OCGA § 16-6-5 (a). Instead, he was charged with criminal attempt to commit child molestation, which does not have asportation as an element. See OCGA §§ 16-4-1; 16-6-4 (a).

Decided November 23, 1988 —

Rehearing denied January 13, 1989

Bush, Wallace & Craig, Daniel J. Craig, for appellant.

J. Lane Johnston, District Attorney, G. Barksdale Boyd, Assistant District Attorney, for appellee.

The trial court did not err in denying appellant’s motions for directed verdict and for new trial.

Judgment affirmed.

McMurray, P. J., and Pope, J., concur.


author: McMurray, Presiding Judge. Pope, Judge, dissenting. Beasley, Judge,

text:
    77592.
    In the Interest of S. P.
    (377 SE2d 911)
   McMurray, Presiding Judge.

A petition alleging the delinquency of appellant S. P., a juvenile, was filed in the Juvenile Court of Emanuel County. The petition alleged a “Violation of the Georgia Controlled Substances Act,” possession of cocaine. S. P. brings this appeal from an order of the juvenile court transferring the case to the Superior Court of Emanuel County for prosecution- Appellant’s sole enumeration of error contends that the juvenile court erred in determining that “[t]here are reasonable grounds to believe that [appellant] is not committable to an institution for the mentally retarded or the mentally ill.” Held:

“In order to transfer a delinquency case for criminal prosecution, the juvenile court must determine that ‘there are reasonable grounds to believe that:. . . (B) The child is not committable to an institution for the mentally retarded or mentally ill . . .’ OCGA § 15-11-39 (a) (3). Such a determination must, of course, be supported by competent evidence, and the burden of presenting such evidence lies with the state. See In the Interest of T. J. M., 142 Ga. App. 415 (236 SE2d 152) (1977). See also C. L. A. v. State of Georgia, 137 Ga. App. 511 (3) (224 SE2d 491) (1976).” L. K. F. v. State of Ga., 173 Ga. App. 770 (2), 771 (328 SE2d 394).

In the case sub judice, the record contains no probative evidence supporting the juvenile court’s conclusion that “[t]here are reasonable grounds to believe that [S. P.] is not committable to an institution for the-mentally retarded or the mentally ill.” Contrary to the State’s argument, we do not view the underlying delinquent act and subsequent escapes of S. P. as proof that S. P. was not committable to an institution for the mentally retarded or mentally ill. Additionally, we note that the remainder of the evidence, relied upon by the State, lacked probative value because the evidence was hearsay or constituted the observations of a juvenile court service worker who acknowledged his lack of qualifications in the field of mental health. We believe the most appropriate disposition of the case is to vacate the judgment of the juvenile court and remand for a new hearing on the matter. As this concludes the present appeal, in order to prompt an appellate review of some further order entered by the juvenile court, a new notice of appeal must be filed.

Judgment vacated and case remanded with direction.

Carley, C. J., Deen, P. J., Banke, P. J., Birdsong and Sognier, JJ., concur. Pope, Benham and Beasley, JJ., dissent.

Pope, Judge, dissenting.

I agree with the conclusion of the majority that the record contains no competent or probative evidence supporting the juvenile court’s conclusion that the minor is not committable to an institution for treatment of a mental condition. However, for the reasons set forth in the dissenting opinion in L. K. F. v. State of Ga., 173 Ga. App. 770 (328 SE2d 394) (1985) (Pope, J., dissenting), I must dissent from the ruling that the case should be vacated and remanded for further proceedings to permit the State a second opportunity at proving what it must, by statute, prove in order to have its motion for transfer granted.

In this case, evidence was presented that the minor had been transferred from the juvenile detention facility to a state hospital when he attempted to commit suicide. He escaped from the hospital and, when apprehended, was transferred back to the juvenile detention facility. Clearly, the mental condition of the minor was at issue in the proceeding. The testimony of the juvenile court service worker that the minor was about to be released from the hospital when he escaped because no further treatment was necessary was incompetent on the issue of the minor’s mental condition, as hearsay. The evaluation of the minor’s mental condition after an attempted suicide is surely a fact which must be established by expert testimony. Yet, the State failed to present expert testimony sufficient to carry its burden of proof on this issue.

With the exception of L. K. F. v. State of Ga., supra, those cases remanding a transfer order back to the juvenile court for rehearing have involved cases in which the court’s order was not supported by specific findings of the “reasonable grounds” for transfer as set forth in OCGA § 15-11-39 (a) (3). See In re E. W., 256 Ga. 681 (353 SE2d 175) (1987); In re T. J. M., 142 Ga. App. 415 (236 SE2d 152) (1977). As in L. K. F. v. State, the issue in this case is not the proper form of the court’s order of transfer, but whether the evidence supports the court’s order. Remand to afford the State a second opportunity to present evidence on a motion in a quasi-criminal case is improper. Consequently, I dissent from the majority opinion in this case and urge that L. K. F. v. State of Ga. be overruled.

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

Beasley, Judge,

dissenting.

I respectfully dissent because the record does not show an abuse of the court’s discretion, “a discretion clearly mandated to be used by OCGA § 15-11-39 (a) (3).” D. T. R. v. State of Ga., 174 Ga. App. 695, 697 (331 SE2d 70) (1985). As stated in that opinion, the code section provides for “the power of a juvenile court to transfer [a] juvenile to the superior court for treatment as an adult.” Id. On appeal, our role is limited. “Determinations of a juvenile court made on an exercise of discretion, if based upon evidence, will not be controlled by this court. [Cits.]” In the Interest of L. L., 165 Ga. App. 49, 50 (299 SE2d 53) (1983). This was repeated by the Supreme Court in In re E. W., 256 Ga. 681, 683 (353 SE2d 175) (1987) as the appropriate approach, and it stated firmly: “The function of the appellate court is limited to ascertaining whether there was some evidence to support the juvenile court’s determination.”

Here there is competent evidence to support the court’s finding that “there are reasonable grounds to believe that [S. P.] is not committable to an institution for the mentally retarded or the mentally ill,” and to justify the juvenile court’s conclusion that the juvenile system is ineffective to deal with him further.

There is no evidence or contention whatsoever that S. P. is mentally retarded. With respect to committability to an institution for the mentally ill, the record shows the following. S. P. would be 17 within a month of the hearing. (See OCGA § 15-11-2 (2).) He was arrested after the sheriff’s office was advised by a confidential informant that drug sales were occurring and they stopped a designated car in which S. P. was a passenger; he was in possession of crack cocaine. When they got to the jail, a bag containing a cocaine tester and approximately 14 grams of cocaine was found behind the back seat, where S. P. had been seated. A motel room rented in his name contained an automatic pistol.

There was also evidence from his juvenile court service worker that he had been on probation for simple battery the year before, that he was subsequently committed to DHR for obscene language and terroristic threats involving the high school principal, that he escaped several times from various authorities, once recently when he was being taken to be tested for a sexually transmitted infection. The last time he escaped was after the court service worker had been notified that S. P. would be released back to his custody from Georgia Regional Hospital, as being in no further need of its services and treatment. He had been taken there two days earlier after an apparent suicide attempt at the youth development center where he was being detained pending the cocaine charge. He was apprehended in New Jersey when police were called to what was described as a domestic quarrel and it was learned he was a fugitive.

Decided January 13, 1989.

Sarah M. Tipton-Downie, for appellant.

Richard A. Malone, District Attorney, for appellee.

In view of this history, and considering especially the nature of the delinquent act charged and the fact of intended release from the mental health hospital after a brief stay, as these relate to the question of committability to an institution for the mentally ill, there is at least some evidence to support the finding of the juvenile court. Its order of transfer should be affirmed, upon the authority of the above-cited code and cases.


author: Sognier, Judge.

text:
    77471.
    HOWELL et al. v. CARTER et al.
    (377 SE2d 880)
   Sognier, Judge.

Larry Joe and Patricia Howell brought suit against Glenda B. and C. W. Carter, Jr. to recover damages for personal injury and loss of consortium resulting from an accident which occurred while Larry Joe Howell was employed by the Carters to remove shingled siding from a rental house owned by Glenda Carter. The trial court granted the Carters’ motion for summary judgment, and the Howells appeal.

The record reveals that appellant Larry Joe Howell was employed, along with his father and brother, by appellees to remove old asbestos siding from the rental house and replace it with new siding. Howell was standing on the ground removing shingles by hand from an outside: wall of the house and loading them onto his pickup truck. He was working from the bottom of the wall towards the top and at the time of the incident was removing shingles at approximately eye level. He turned from the truck to pull more shingles off the wall when a shingle near the top of the wall under the eaves dislodged and fell, striking him in his right eye. It is uncontroverted that Larry Joe Howell was injured and suffered permanent damage.

Appellants contend the trial court erred by granting appellees’ motion for summary judgment because an issue of fact remains as to whether appellees had superior knowledge of a hidden danger. Specifically, appellants contend that there is a contradiction between appellees’ statements made to insurance representatives and their testimony given in affidavits submitted in support of their motion for summary judgment regarding whether they had knowledge, at the time they employed appellant, that some of the shingles were loose. Appellants argue, therefore, that under Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27 (343 SE2d 680) (1986), that portion of the contradictory testimony most favorable to appellees must be ignored on motion for summary judgment. However, we do not agree with appellants that appellees’ statements are contradictory.

In their affidavits, appellees stated they “personally inspected the house several times and more particularly, the asbestos siding on the house[,] [pjrior to the hiring of the Howells to remove the siding.” They stated that from their inspections of the property, they “saw nothing unusual, or dangerous, about the asbestos siding.” Nothing in the statements given by appellees for insurance purposes contradicts the statements in their affidavits that they had no knowledge of the existence of any dangerous condition. In fact, when asked by the interviewer taking the insurance statement whether his wife had been alerted to any problem with the shingled siding, appellee C. W. Carter replied “[n]o, it was just, it looked good on the house, uh, but it was something that, you know, they’ve outlawed [and] something that, that they’re not making anymore of, uh, so she wanted it off of the house.” Appellee Glenda Carter told the insurance interviewer that although there were a few sheets of shingles that were bad, the siding did not appear to be loose, but “look[ed] like it was intact.” Although Glenda Carter did opine that the siding was not as tight as it should have been, her statement was obviously an attempt to explain how the accident occurred. Nothing in her statement implies that either she or her husband had foreknowledge of any unsafe condition. Thus, we find no contradiction and Prophecy Corp., supra, is not applicable here. The trial court properly included the statements made by appellees in their affidavits in the evidence considered on summary judgment. See OCGA § 9-11-56 (e).

In response to the motion for summary judgment, appellant Larry Joe Howell submitted his own affidavit, in which he stated that to his own “knowledge the [appellees] had not inspected the premises to be repaired before his injury.” At best that statement .can be construed as averring only that appellees did not inspect the premises when Larry Joe Howell had knowledge of the inspection. As Howell did not, and could not, aver that appellees could not have inspected the premises without his knowledge, Howell’s statement is insufficient to rebut appellees’ affirmative statement that they did inspect the premises and found no defects.

Decided January 5, 1989 —

Rehearing denied January 18, 1989

Franklin D. Rozier, Jr., for appellants.

Preston & Preston, Robert H. Preston, for appellees.

“The true ground of liability of the owner of property to an invitee who is injured thereon is the superior knowledge of the proprietor of the existence of a condition that may subject the invitee to an unreasonable risk of harm. [Cits.]” Pound v. Augusta Nat., 158 Ga. App. 166, 167-168 (279 SE2d 342) (1981). Even construing the evidence most strongly on behalf of appellants as the respondents to the motion, Mallard v. Jenkins, 179 Ga. App. 582 (347 SE2d 339) (1986), we find that appellees have negated an essential element of appellants’ case by showing they did not have superior knowledge of any danger, and the trial court did not err by granting summary judgment to appellees. See generally Tinnel v. Trailways Lines, 185 Ga. App. 534, 535 (364 SE2d 904) (1988).

Judgment affirmed.

Carley, C. J., concurs. Deen, P. J., concurs in the judgment only.


author: Banke, Presiding Judge.

text:
    76425.
    MR. PRIDE OF ATLANTA, INC. et al. v. METROPOLITAN PROPERTY & LIABILITY INSURANCE COMPANY.
    (378 SE2d 417)
    Decided January 18,' 1989.

      Kent T. Stair, Douglas A. Wilde, for appellants.

      W. Wray Eckl, Debra L. Mixon, for appellee.
   Banke, Presiding Judge.

The judgment previously entered by this court in this case, reported at 187 Ga. App. 737 (371 SE2d 211) (1988), having been reversed by the Supreme Court in Metropolitan &c. Ins. Co. v. Mr. Pride of Atlanta, 258 Ga. 770 (374 SE2d 82) (1988), said judgment is hereby vacated, and the judgment of the trial court is hereby affirmed.

Judgment affirmed.

Carley, C. J., Deen, P. J., McMurray, P. J., Birdsong, Sognier, Pope, Benham and Beasley, JJ., concur.


text:
    A89A0156.
    DANIEL v. THE STATE.
    (377 SE2d 914)
    Decided January 18, 1989.

      Ted B. Herbert, for appellant.

      Thomas J. Charron, District Attorney, for appellee.
   Banke, Presiding Judge.

The appellant was convicted of selling cocaine in violation of the Controlled Substances Act. Prior to trial, he filed a “Motion for Discovery,” purportedly under the authority of Brady v. Maryland, 373 U. S. 83 (83 SC 1194, 10 LE2d 215) (1963), but seeking disclosure of “all written and recorded statements,” without regard to whether they were exculpatory or inculpatory. His sole enumeration of error on appeal concerns the trial court’s failure to exclude from evidence tape recordings of a telephone conversation between himself and another individual on the ground that the evidence had not been provided to him before trial in compliance with his Brady motion.

The individual in question had himself been arrested for selling cocaine and had thereupon identified the appellant as his drug source. He had subsequently allowed police to tape record a telephone conversation between himself and the appellant wherein arrangements were made for the appellant to pick up the proceeds from the drug sale in question. It is this recording which is the subject of the present appeal. Held:

“There is no general constitutional right to discovery in a criminal case, and Brady did not create one. ...” Weatherford v. Bursey, 429 U. S. 545, 559 (97 SC 837, 51 LE2d 30) (1977). “ ‘. . . Brady is not violated when the Brady material is available to the [defendant] during trial. [Cits.]’ [Cit.] 1 Brady does not require pre-trial disclosure of the materials.’ [Cit.]” Castell v. State, 250 Ga. 776, 781 (2) (b) (301 SE2d 234) (1983). Furthermore, “. . . Brady does not compel the state to disclose inculpatory evidence. . . .” Ross v. State, 254 Ga. 22, 29 (4) (c) (326 SE2d 194) (1985). It follows that the trial court did not err in admitting the evidence in question over the appellant’s objection that the state had failed to make it available to him prior to trial in response to his Brady motion.

Judgment affirmed.

Sognier and Pope, JJ., concur.


text:
    A89A0220.
    VICKS v. THE STATE.
    (377 SE2d 863)
   Banke, Presiding Judge.

The appellant was convicted of armed robbery, based on an indictment charging that he had taken money from a gas station attendant “by use of a flare, the same having the appearance of an offensive weapon.” He contends on appeal that there was no evidence from which the jury could have determined that he had used the flare in such a manner as to give it the appearance of an offensive weapon, with the result that the trial court erred in denying his motion for directed verdict.

One of the victim’s co-workers at the gas station testified that the appellant initially had the flare under his arm but put it in his hand when the victim hesitated before giving him the money. The victim described the object as a “homemade blackjack” and responded in the affirmative when asked whether it looked like something which could have caused her bodily injury. However, she acknowledged on cross-examination that she would have given the appellant the money even if he had not had any object in his hand. Held:

“A person commits the offense of armed robbery when, with intent to commit theft, he takes property of another from the person or the immediate presence of another by use of an offensive weapon, or any replica, article, or device having the appearance of such weapon.” OCGA § 16-8-41 (a). “The term offensive weapon as used in [OCGA § 16-8-41 (a)] includes not only weapons which are offensive per se (such as firearms loaded with live ammunition), but also other instrumentalities not normally considered to be offensive weapons per se which may be found by a jury to be likely to produce death or great bodily injury depending on the manner and means of their use. An offensive weapon is ‘a weapon primarily meant and adapted for attack and infliction of injury, but practically the term includes anything that would come within the description of a “deadly” or “dangerous” weapon.’ Black’s Law Dictionary, 4th ed., p. 1233.” Meminger v. State, 160 Ga. App. 509, 510 (287 SE2d 296) (1981), rev’d on other grounds, 249 Ga. 561 (292 SE2d 681) (1982).

Examples of normally non-offensive non-deadly objects which have been used in such a manner as to support convictions of armed robbery or aggravated assault are: a beer bottle, Simmons v. State, 149 Ga. App. 830 (2) (256 SE2d 79) (1979); a ceramic statue, Banks v. State, 169 Ga. App. 571 (314 SE2d 235) (1984); a pocketknife, Hambrick v. State, 174 Ga. App. 444 (1) (330 SE2d 383) (1985); fists, Quarles v. State, 130 Ga. App. 756 (204 SE2d 467) (1974); and even a pillow and sheets, Eady v. State, 182 Ga. App. 293, 295 (355 SE2d 778) (1987).

Based on the evidence introduced at the trial of this case, a rational trier of fact could reasonably have concluded beyond a reasonable doubt that during the course of the robbery the appellant had utilized the flare in such a manner as to give it the appearance, at least, of an offensive weapon. Under such circumstances, it does not inure to the appellant’s benefit that the victim would have given him the money even had he not been holding the object in his hand; and the trial court consequently did not err in denying his motion for a directed verdict.

Decided January 18, 1989.

Robert L. Ferguson, for appellant.

Robert E. Keller, District Attorney, Albert Collier, Assistant District Attorney, for appellee.

Judgment affirmed.

Sognier and Pope, JJ., concur.


text:
    A89A0300.
    LAMBROS v. LONGIOTTI.
    (378 SE2d 416)
    Decided January 18, 1989.

      John B. Achold, for appellant.

      Melanie L. Marks, for appellee.
   Banke, Presiding Judge.

This appeal was docketed on November 2, 1988, following which the appellant was granted an extension of time until November 28, 1988, in which to file an enumeration of errors and brief. Counsel for the appellant thereafter sought to extend this filing deadline to December 2, 1988, by submitting to this court an “Agreement Extending Time for Filing Briefs,” which was signed by himself and opposing counsel. However, the appellant’s enumeration of errors and brief were not actually filed until December 6, 1988. Held:

Rule 14 (a) of this court, as amended effective January 1, 1988, specifies as follows: “Appellant’s and cross appellant’s briefs and enumerations of error shall be filed within 20 days after the appeal or cross appeal is docketed. Failure to file within that time, unless extended upon motion for good cause shown, may result in dismissal of the appeal and may also subject the offender to contempt. See also Rule 23.”

Inasmuch as the appellant did not file a brief and enumeration of errors in this court within 20 days after the docketing of the appeal, nor within any extension of time granted by this court, and inasmuch as no excuse has been offered for the appellant’s failure in this regard, the appeal is hereby dismissed.

Appeal dismissed. Sognier and Pope, JJ., concur.


text:
    77167.
    AYCOCK v. HUGHES.
    (377 SE2d 689)
   Benham, Judge.

This is an appeal, pursuant to our grant of appellant’s application, from an order denying a motion to set aside a default judgment which resulted from the striking of appellant’s answer when he and his counsel failed to appear for trial. The motion was based on appellant’s contention that their absence at the call of the case for trial was in justified reliance on an assurance given to counsel by the court administrator that the case would not be called.

At the hearing on appellant’s motion to set aside, appellant’s counsel stated in his place that the court administrator told him that he did not need to be at the calendar call because there were two cases before his which would take up all the time allotted for trials that week. The court administrator stated in her place that she had told appellant’s counsel that he would not need to be present if the two cases went to trial. She stated that her advice was expressly conditioned on the first two cases going to trial, and that she did not tell counsel it was not necessary to appear. It was undisputed that the first two cases did not go to trial.

1. In his first enumeration of error, appellant contends that the trial court erred in refusing to set aside the judgment on the ground of mistake or accident under OCGA § 9-11-60 (d) (2). That statutory provision, however, requires that the accident or mistake be “unmixed with the negligence or fault of the movant ...” Here, the trial court specifically found that the failure of appellant or appellant’s counsel to appear at the call of this case for trial was due “solely to the negligence of defendant and defendant’s legal counsel, unmixed with any acts of the court, the Court Administrator, plaintiff’s legal counsel, or any other person or entity. . . .” That finding was supported by the record, and the refusal to set aside the judgment on that ground was not error. Archer v. Monroe, 165 Ga. App. 724 (1) (302 SE2d 583) (1983).

Cases cited by appellant, such as Kroger Co. v. Michaels, 183 Ga. App. 626 (359 SE2d 698) (1987); Hiley v. McGoogan, 177 Ga. App. 809 (341 SE2d 461) (1986); and Daugherty v. Norville Indus., 174 Ga. App. 89 (329 SE2d 202) (1985), are inapposite because the decision in each of those cases turns on a holding to the same effect as the holding in Daugherty that appellant’s “attorney could have done no more under the particular facts and circumstances of the [case].” Id. at 90. Given the trial court’s finding, that cannot be said in this case.

2. Appellant’s second enumeration of error, that the trial court failed to exercise its inherent discretion to set a judgment aside during the same term in which it was rendered, is based on a statement made by the trial court at the hearing on the motion to set aside: “I don’t see any real ability that I’ve got to go back in and upset what’s already been done.” Viewing that statement in context, we agree with appellee’s assessment that the trial court was being tactful in stating that it would not grant appellant relief because any fault or responsibility lay with appellant’s attorney. It is abundantly clear from the transcript of the hearing and from the trial court’s order that the trial court had resolved the factual conflict in favor of the court administrator and had concluded that appellant’s counsel was not justified in failing to appear or to ascertain on the day of trial whether the cases before his had been removed from the calendar. Such a ruling is within the trial court’s discretion (Murer v. Howard, 165 Ga. App. 230 (299 SE2d 151) (1983)), and we do not agree with appellant that the trial court failed to recognize its discretion or that it abused the discretion it exercised.

Decided January 3, 1989 —

Rehearing denied January 19, 1989

Webb, Carlock, Copeland, Semler & Stair, Thomas S. Carlock, Wade K. Copeland, Neal C. Scott, for appellant.

James & Carey, John D. Carey, for appellee.

Judgment affirmed.

McMurray, P. J., and Pope, J., concur.


text:
    77271.
    STAR LAUNDRY, INC. v. CITY OF WARNER ROBINS. STAR LAUNDRY, INC. v. JOHNSON. RUSHING v. CITY OF WARNER ROBINS. RUSHING v. JOHNSON.
    77272.
    77273.
    77274.
    (377 SE2d 709)
   Banke, Presiding Judge.

The City of Warner Robins, Georgia, filed separate actions against the two appellants (Star Laundry, Inc., and Margie Rushing d/b/a Master Cleaners) to recover the difference between the amounts it should have charged them for water and sewer service between January of 1986 and March of 1987 and the lesser amounts it actually charged them for such service during that period. The appellants denied liability on the ground that the charges billed to them by the city had been specifically authorized by its then mayor, appellee Ralph Johnson. They also filed third-party actions against Johnson seeking to be indemnified by him for any recovery the city might ultimately obtain on its claims against them. The trial court granted motions for summary judgment filed by the city and by Johnson in the two actions, prompting the appellants to file these appeals.

Both appellants are in the laundry business, with the result that they are commercial users of water and sewer services. As the result of the enactment of a new rate ordinance by the city council in 1985, appellant Star Laundry’s monthly water and sewer bill increased more than one-hundred fold, from $38.50 to over $4,000, while appellant Rushing’s monthly bill increased more than ten fold, from $38.50 to over $400 per month. Acting separately, the owners of the two businesses contacted the city utility department to express their dissatisfaction, and both were referred to the mayor, who agreed to help them. As a result of the mayor’s intervention, the city subsequently began billing the appellants pursuant to a “phase-in” arrangement, under which their old rates were to be increased to those called for under the new ordinance on a more gradual basis. However, Star Laundry’s owner, Jeff Carter, continued to seek more permanent relief from the rate increase; and in March of 1986, he delivered to city hall seven copies of a letter addressed to the “Mayor and Council” in which he petitioned the city to enact “a 44% decrease in the recently implemented rate structure,” so as to bring its water and sewer rates in line with those existing in several other Georgia cities whose rates he had surveyed.

The mayor was receptive to Carter’s request; and at a subsequent meeting attended by the mayor, Carter, the utility supervisor, and the city clerk, a rate structure was agreed upon for Star Laundry which was substantially lower than the ordinance rate. Both Star Laundry and Master Cleaners were billed pursuant to this special rate schedule for approximately the next year, until the city council learned of it and ordered the arrangement terminated. The difference between the charges billed to Star Laundry during this period and those called for under the rate ordinance was approximately $75,000, while the difference between the charges billed to Master Cleaners and those called for under the ordinance was approximately $7,000. The city was awarded summary judgment for these sums, respectively, in the present actions.

The appellants are represented by the same counsel and have submitted virtually identical briefs and enumerations of errors in support of their appeals. Although numerous alleged errors are asserted therein, many of these are either overlapping or entirely redundant, and the issues actually raised by the appeals may be summarized as follows: (1) Whether Johnson enjoyed immunity from liability to the appellants for acts undertaken in his official capacity as mayor, (2) whether the appellants were entitled to invoke the defense of equitable estoppel against the city, (3) whether the trial court erred in allowing the appellees to file depositions in support of their summary judgment motions less than 30 days prior to the hearing thereon, and (4) whether the trial court erred in failing to consolidate the two lawsuits. Held:

1. (a) Appellee Johnson was properly granted summary judgment on the basis of his qualified immunity from liability for actions undertaken in his official capacity as mayor. “ ‘In the absence of fraud or a statute providing for liability, municipal officers acting in a legislative capacity are not liable in damages for acts done in their official capacity, although such acts are void as in excess of jurisdiction, or otherwise without authority of law.’ ” Koehler v. Massell, 229 Ga. 359, 365 (191 SE2d 830) (1972), quoting 62 CJS, Municipal Corporations, § 545 b (1), p. 1009. The Court further held in Koehler, supra, that in order to subject municipal officers to personal liability for actions undertaken in their official capacity, it is necessary to prove not merely that such actions were characterized by bad faith, malice, or fraud but also to show that there was a “direct or indirect pecuniary gain to the municipal officers accruing therefrom.” Id. at 366.

The appellants assert in their briefs on appeal that Johnson’s actions “savored of fraud” in that he implicitly represented to them by his actions that he was authorized to adjust their rates by himself, without the intervention of the city council. However, even if the mayor did implicitly make such a representation to the appellants, it could not be considered actionable since the extent of his legal authority in this regard was a question of law rather than of fact. “Misrepresentations as to questions of law do not give rise to an action for fraud.” Garrison v. Dept. of Transp., 240 Ga. 840, 841 (242 SE2d 615) (1978). Moreover, it is apparent without dispute from the record that the mayor received from the appellants no pecuniary gain or benefit of any kind in return for his intervention on their behalf. Thus, the evidence conclusively establishes his immunity from personal liability. Accord Haze Edwards Elec. Co. v. Turvey, 153 Ga. App. 173 (264 SE2d 706) (1980).

(b) The appellants contend on appeal that the mayor’s immunity from liability was waived by the city’s purchase of liability insurance coverage applicable to the acts and omissions of its elected officials. However, no such allegation appears in either of the third-party complaints, and no evidence suggesting the existence of such an insurance policy was ever submitted. Instead, the issue was first raised by the appellants in briefs filed after the trial court had already ruled on the summary judgment motions, and then only by reference to unspecified “public records” purportedly showing the existence of such coverage. Inasmuch as this theory of liability was neither presented to nor ruled on by the trial court prior to its ruling on the summary judgment motions, it presents nothing for review on appeal. Accord Hanover Ins. Co. v. Nelson Conveyor &c. Co., 159 Ga. App. 13, 15 (282 SE2d 670) (1981).

2. Although it is undisputed that the mayor was not authorized to lower the appellants’ water and sewer rates unilaterally, without the intervention of the council, it does not necessarily follow that the city is entitled to repudiate his actions in pursuing the present claims against the appellants. A very similar situation was presented in City of East Point v. Upchurch Packing Co., 58 Ga. App. 829 (200 SE 210) (1938), which, like the present cases, involved a suit by a municipality to recover the difference between the amount charged a commercial user for utility service during a specified time period and the amount the user should have been charged. In its answer, the customer denied liability based on the doctrine of equitable estoppel, alleging that it had relied to its detriment on the correctness of the charges billed to it during the period in question, both by pricing its products lower than it would otherwise have priced them and by not moving its operations out of the city altogether, as it ultimately did after the mistake came to light and was corrected by the municipality. Observing that the defense of estoppel is generally available against a municipal corporation with respect to claims involving the discharge of private or proprietary (as opposed to governmental) functions, and further observing that “[i]t is well-settled law in this state that ‘in the operation of an electric-light and water plant, a municipal corporation is engaged in a non-governmental function’ (cit.),” the court held that the customer was entitled to a trial on the merits of its estoppel defense. Id. at 830-831. Accord Holland v. City of Calhoun, 114 Ga. App. 51, 52 (150 SE2d 155) (1966), rev’d on other grounds City of Calhoun v. Holland, 222 Ga. 817 (152 SE2d 752) (1966).

Like the defendant in City of East Point v. Upchurch Packing Co., supra, the appellants in the cases before us maintain that they relied to their detriment on the rates billed to them by the city during the period in question. Mrs. Rushing averred in an affidavit submitted in opposition to the city’s motion for summary judgment that she would have increased her prices and “taken other corrective steps” had she known the rates being charged to her were incorrect; while Mr. Carter testified that he would have taken such specific steps as increasing his prices, terminating some of his employees, and either farming out or, where possible, renegotiating his high-volume contract commitments. Although in granting the city’s motions for summary judgment the trial court found that the appellants had sought both “to avoid the legal water rates” and “to avoid a public hearing by the full governing authority of the city,” we have been cited to no evidence which would support, much less demand, an inference that the appellants were attempting to circumvent the legal process in their dealings with the mayor. The fact that the appellants did not challenge the mayor’s authority to deal with them on the city’s behalf certainly establishes no basis, in and of itself, for a conclusion that they were involved in a surreptitious effort to avoid going before the city council, particularly in light of the fact that Carter addressed his written petition for rate relief to both the council and the mayor and delivered enough copies of it to city hall to enable each member of the council to receive one. Furthermore, the mayor candidly admitted during his deposition that it was he who made the decision not to present the matter to the council, stating that he “didn’t want the publicity at that time because of the resistance that we were receiving from other commercial [users]. . . .” Under the circumstances, we find no basis for the trial court’s apparent conclusion that the appellants were acting surreptitiously or in bad faith.

We reject the city’s contention that to allow the appellants to assert the defense of equitable estoppel in these actions would be to violate the mandate of OCGA § 45-6-5, which provides as follows: “Powers of all public officers are defined by law and all persons must take notice thereof. The public may not be estopped by the acts of any officer done in the exercise of an unconferred power.” Except when the municipality’s ability to exercise its governmental powers is itself threatened by the unauthorized action of a municipal officer, the term “unconferred power” as used in this statute has traditionally been interpreted as referring to the powers of the municipality rather than the powers of the officer. “While a municipality is not estopped to deny the validity of a contract wholly beyond its powers, it may be estopped by the exercise of contractual powers legally vested in it, and even by the exercise of governmental powers, to prevent manifest injustice and wrongs to private persons, where the restraint placed upon a municipality to accomplish that purpose does not interfere with the exercise of governmental powers of the municipality.” City of Jefferson v. Holder, 195 Ga. 346, 355 (24 SE2d 187) (1943). Accord City of Summerville v. Ga. Power Co., 205 Ga. 843 (2), 846 (55 SE2d 540) (1949).

The cases relied upon by the city in this connection are consistent with this interpretation and do not support its contention that a municipality may never be estopped from repudiating the unauthorized acts of its officials. In Corey Outdoor Advertising v. Bd. of Zoning Adjustment of Atlanta, 254 Ga. 221 (3) (327 SE2d 178) (1985), the issue before the Court was whether the estoppel doctrine could be employed to validate a sign permit which had been issued by a city official in direct contravention of restrictions appearing in the city’s zoning ordinance. In holding that the doctrine could not be employed to this effect, the court noted that the regulation of zoning was an important governmental function and that “equitable estoppel will not apply so as to frustrate or contravene a governmental function of a governmental unit.” Id. at 224. At issue in Horkan v. City of Moultrie, 136 Ga. 561 (71 SE 785) (1911), was whether the estoppel doctrine could be applied in such a manner as to bind the city to continued compliance with an agreement to supply free water service to a property owner for an indefinite period of time. Citing the principle that a city council cannot “so tie the hands of its successors as to result in great injury to the municipality and to the public,” the court concluded that the city could not even have bound itself to such an arrangement by ordinance and that it consequently could not be es-topped from contending that the alleged contract was void. Id. at 563. Accord Screws v. City of Atlanta, 189 Ga. 839, 843 (2) (8 SE2d 16) (1940) (where a contract to supply water free of charge for a period of 25 years was held to be unenforceable on identical grounds). Similarly distinguishable are such cases as City of Calhoun v. Holland, supra, 222 Ga. 817 (holding that the estoppel doctrine could not be applied in such a manner as to avoid the statutory ante litem notice arrangement imposed by former Code Ann. § 69-308 [currently OCGA § 36-33-5]); City of Atlanta v. Bull, 161 Ga. App. 648 (288 SE2d 335) (1982) (holding that an oral commitment made by an ad hoc committee chairman was not contractually binding on the city where its charter specifically required that all city contracts be signed by the mayor or his duly authorized designate); and City of Jonesboro v. ShawLightcap, Inc., 112 Ga. App. 890 (147 SE2d 65) (1966) (holding that a contract executed by the mayor, acting alone, was not binding on the city where its charter specified that the power to contract would be exercised by the mayor and council acting jointly).

Unlike the litigants in the foregoing cases, the appellants in the present case do not seek to employ the doctrine of estoppel as a sword, so as to bind the city to continued compliance with an otherwise unenforceable agreement or to restrain its exercise of its governmental powers. Rather, they seek to employ the doctrine as a shield, in defense of a monetary claim being asserted against them by the city based on events which have already transpired. They merely contend that, having sought to obtain a reduction in their water and sewer rates by negotiating with the city in good faith through its chief executive officer, and having been led to believe by the actions and representations of the mayor and other administrative officials that these efforts had been successful, they were entitled to rely on the lower rates thereafter charged them until they were informed that those rates had not been properly authorized. Such an application of the estoppel doctrine would in no way impair the city’s future ability to exercise its governmental functions, nor would it legitimize any action by a municipal officer which exceeded the powers of the municipality itself. We accordingly hold that the appellants are entitled to assert the defense of estoppel in opposition to the city’s claims, with the result that the trial court erred in granting the city’s motions for summary judgment.

3. We are unable to review the appellants’ contention that the trial court erred in considering certain depositions which the appellees filed less than 30 days prior to the summary judgment hearing, inasmuch as no motion was made in the trial court to strike these depositions, and inasmuch as it has not been suggested how the testimony contained therein might have influenced the court’s rulings. See Bradbury v. Mead Corp., 174 Ga. App. 601 (330 SE2d 801) (1985).

Decided January 5, 1989 ■—

Rehearing denied January 19, 1989

Pamela M. Richards, for Star Laundry & Rushing.

James E. Elliott, Jr., for City of Warner Robins.

George Kushinka, Fred E. Godwin, Jr., for Johnson.

4. The appellants’ contention that the trial court erred in failing to consolidate the two separate actions similarly presents nothing for review, as we have been cited to no ruling by the court denying the appellants’ motions in this regard, and as we have been offered no explanation as to how the failure to consolidate the two cases might have prejudiced the court in its consideration of the merits of the two actions.

Judgment affirmed in Case Nos. 77272 and 77274; judgment reversed in Case Nos. 77271 and 77273.

Birdsong and Beasley, JJ., concur.


text:
    77382.
    CARLIN v. FULLER et al.
    (377 SE2d 877)
   Benham, Judge.

In 1981, Fuller sold Bland just over 518 acres of land, taking back a security deed. Bland sold the property to Carlin in 1982, but leased it from Carlin and continued to live there. The dwelling on the property was insured under a policy which named Mr. and Mrs. Bland as owners and Fuller as mortgagee. Carlin was not named in the policy. When the dwelling and an outbuilding burned in 1986, the insurer declared the policy void as to the Blands, but paid Fuller $20,000 under a policy provision permitting the insurer, in the event coverage was denied the owner, to pay the mortgagee and be subrogated to the mortgagee’s rights. In exchange for the payment, Fuller executed an assignment which provided that when the debt was reduced to $20,000, Fuller would formally assign to the insurer the note and the security deed. Carlin brought this suit contending that Fuller failed to protect her rights and asserting entitlement to a credit against the note she assumed when she bought the property from Bland. She now appeals from the grant of summary judgment to Fuller.

Decided January 4, 1989 —

Rehearing denied January 19, 1989.

Sylvester & Associates, Chuck Sylvester, for appellant.

Smith & Harrington, Will Ed Smith, for appellees.

1. It is unclear from the record and the arguments of counsel exactly what right Carlin is asserting in this litigation. She owns legal title to the land on which the burned buildings stood, but she was not a party to the insurance contract under which the insurer elected to pay Fuller and take a pro tanto assignment of the debt. Much of Carlin’s argument involves issues of insurable interest, but that is not at issue in this case. The insurer has never denied that Carlin and Bland have insurable interests; it declared the policy void as to the Blands because of misrepresentations on the application. Carlin has not articulated the basis of the right she asserts to payment under the policy, and we have found no such right. If Carlin does have such a right, we do not see and she has not explained how it would be Fuller rather than the insurer who would be liable to her. Although she complains that Fuller, by settling her own claim with the insurer, failed to protect Carlin’s rights, Carlin has not shown any relationship between her and Fuller which would burden Fuller with a duty to protect Carlin’s interests. Since the record establishes that the money Fuller got was not something to which Carlin possesses any legitimate claim, we find no error in the grant of summary judgment to Fuller.

2. Carlin also complains that summary judgment was procedurally incorrect because Fuller failed to comply with Uniform Superior Court Rule 6.1 by setting forth citations of supporting authorities. We find no error. The nature of this case, as may be seen from the paucity of authority in Division 1 of this opinion, is not such as to lend itself to citation of authority. Carlin has claimed entitlement to money Fuller received in exchange for assignment of a debt, and Fuller has set forth facts showing the total lack of connection between Carlin and the money. The documentation submitted with Fuller’s motion for summary judgment was extensive, and the failure to include citations of authority resulted in no confusion or disadvantage to Carlin in defending the motion. Cf. Martin v. Wilson, 184 Ga. App. 196 (2) (361 SE2d 209) (1987).

Judgment affirmed.

McMurray, P. J., and Pope, J., concur.


author: McMurray, Presiding Judge.

text:
    77513.
    In the Interest of A. M. Y.
    (377 SE2d 893)
   McMurray, Presiding Judge.

Petitioner filed a petition to adopt A. M. Y., a minor child, and alleged that the child’s biological mother “voluntarily and in writing” placed A. M. Y. with petitioner two days after the child’s birth; that petitioner “has had full custody of the minor child at all times leading up to [the] petition [for adoption]”; and that “the parents of the child . . . have failed, for a period of one year and longer immediately prior to the filing of [the] petition for adoption, to communicate or make a bona fide attempt to communicate with the child and to provide for the care and support of the child as required by law or judicial decree, and that it is in the best interest of [A. M. Y.] that the adoption take place.” The biological mother responded, denied the material allegations of the petition and sought custody of A. M. Y.

The evidence adduced at a hearing showed that petitioner is 35 years of age, is unmarried and resides in Albany, Georgia. Petitioner is employed as “a secretary and administrative assistant” and has a daughter who is 14 years of age. Petitioner first obtained custody of A. M. Y. on July 2, 1986, two days after the child’s birth, “when the biological mother . . . voluntarily and in writing surrendered the child to Petitioner.” Other than the assumption by petitioner of the financial obligation of providing medical care, food and clothing to A. M. Y., there was no financial inducement or consideration flowing from petitioner to the biological mother for surrender of the child. From the time of the surrender, the petitioner has had full custody of A. M. Y. and “has loved her, cared for her, fed her, clothed her, nursed her, taught her and performed generally all of the functions of a natural parent.” The biological mother has had no contact with A. M. Y. since delivery of the child to petitioner.

The biological mother is 27 years of age, is unmarried and resides in Albany, Georgia. She is employed as the “Senior Desk Clerk at Motel 6” and is the biological mother of three children, including A. M. Y. The biological mother’s first child died eight months after birth at the hands of his father, who is currently serving a 30-year prison sentence at the Naval Air Station, Norfolk, Virginia, for the crime. Her second child is four years of age, resides with his mother and is to a large extent cared for by his maternal grandmother. A. M. Y. is an illegitimate female and was born on June 30, 1986. The putative father deserted the biological mother prior to A. M. Y.’s birth and has since had no contact with the biological mother or A. M. Y.

Several months prior to the birth of A. M. Y., the biological mother worked “part-time” at “Rax’s Restaurant” and, after it became apparent that she was pregnant, the biological mother informed her supervisor, Judy Timmons, that “she was going to have to give [the child] up [because] she couldn’t afford to keep [the child] at that time.” The biological mother then “asked [Ms. Timmons] if [she] knew anywhere she could go, anybody that wanted a baby at that time.” Ms. Timmons informed her that she was acquainted with “a good family at church” who then resided in Jacksonville, Florida that was seeking to adopt a child and she gave the biological mother petitioner’s telephone number. The biological mother contacted petitioner, informed her that she was willing to “give [the baby] up for adoption” and later made arrangements to surrender the child to petitioner.

Petitioner was at the hospital in Albany, Georgia when A. M. Y. was born. Two days later, the biological mother surrendered A. M. Y. to petitioner. The biological mother executed the following document at the time of surrender: “I, . . . being of sound mind and without any pressure of any kind, do willingly grant custody of [A. M. Y.] to [petitioner]. [Petitioner] has my permission to take said child into her home in Florida and provide for her physical & emotional needs. [Petitioner] has agreed to pay all medical bills connected with the care of [A. M. Y.].” The biological mother also gave petitioner a copy of A. M. Y.’s birth certificate and executed the following medical release: “[Petitioner] has my permission to take [A. M. Y.] for medical treatment.”

Although A. M. Y.’s maternal grandparents were not acquainted with petitioner and were aware of their daughter’s intention of relinquishing custody of their grandchild to petitioner, they elected not to assume custody of the baby and they did not arrange visitation with A. M. Y. At the time the child was surrendered to the petitioner, neither the biological mother nor the grandparents requested information regarding petitioner’s address and they did not require the petitioner to report to them regarding A. M. Y.’s condition. In fact, they exhibited no conduct which evidenced an intent to remain in contact with A. M. Y.

Shortly after petitioner obtained custody of A. M. Y., she and her husband returned to Jacksonville. In July 1987 petitioner and her husband moved to Milan, Georgia. On or about August 8, 1987, petitioner separated from her husband and moved to Albany, Georgia, where she and A. M. Y. began residing with petitioner’s parents. Two days after petitioner returned to Albany, she “went to see [the biological mother] at her residence,” informed the biological mother of her imminent divorce and inquired if her domestic circumstances influenced the biological mother’s desire to allow petitioner to adopt A. M. Y. The biological mother affirmed her desire for A. M. Y. to be adopted by petitioner and acknowledged petitioner’s need to fulfill a “residency requirement” before perfecting the adoption.

Immediately following her divorce on February 15, 1988, petitioner contacted the biological mother and made arrangements for them to execute the adoption papers. At this time, petitioner explained to the biological mother that the adoption would require her surrender of parental rights and execution of “a paper saying that she understood what she had [done].” The biological mother agreed to perform the procedure and agreed to execute the documents necessary for the adoption. Two days later, the parties met at petitioner’s attorney’s office and the biological mother informed petitioner that she “couldn’t go through with the adoption, and [that] she wanted to see [A. M. Y.] that day. ...” Petitioner agreed to bring A. M. Y. to the biological mother that afternoon; however, upon the advice of her attorney, petitioner did not comply with the agreement and subsequently filed a petition for adoption pursuant to OCGA § 19-8-6. From this and other evidence at the hearing, the superior court entered an order terminating the biological father’s and mother’s parental rights and allowing petitioner to adopt A. M. Y. This appeal followed. Held:

1. “Generally, a child remains under the control of his biological parents until he reaches majority, unless parental power is lost by any of the ways recognized by law. Ways in which parental power may be lost include: a) ‘Voluntary contract releasing the right to a third party.’ OCGA § 19-7-1 (b) (1); and b) ‘failure to provide necessaries for the child or abandonment of the child,’ OCGA § 19-7-1 (b) (3).” In re M. A. F., 254 Ga. 748, 750 (1), 751 (334 SE2d 668).

Although OCGA § 19-7-1 (b) provides “that parental power may be lost by voluntary contract, . . . the evidence must establish clear, definite, and unambiguous terms of such contract before a relinquishment of parental rights will be found. Shaddrix v. Womack, 231 Ga. 628 (203 SE2d 225) (1974); Waldrup v. Crane, 203 Ga. 388 (46 SE2d 919) (1948); Beavers v. Williams, 199 Ga. 113 (33 SE2d 343) (1945).” Blackburn v. Blackburn, 168 Ga. App. 66, 70 (1), 71 (308 SE2d 193). In the case sub judice, the biological mother executed documents granting “custody” of A. M. Y. to petitioner and allowing petitioner “to take [A. M. Y.] for medical treatment.” These documents alone were insufficient to establish “clear, definite and unambiguous terms” of a contract for the relinquishment of parental rights. See Johnson v. Smith, 251 Ga. 1, 2 (2) (302 SE2d 542). However, this evidence, along with other “clear and convincing” evidence showing the biological mother’s desire to sever the parental relation and throw off all obligations growing out of that relation, was more than sufficient to establish a “clear, definite and unambiguous” relinquishment contract that was binding on the biological mother. See In re M. A. F., 254 Ga. 748, 750 (1), supra. More specifically, the biological mother contacted petitioner during her pregnancy and indicated to petitioner that she was willing to “give [the baby] up for adoption.” The biological mother later made arrangements for petitioner to take custody of the child. Relying on these representations, petitioner arrived at the hospital at the time of A. M. Y.’s birth and, two days later, received custody of the child from the biological mother. At this time, the biological mother executed documents, relinquishing “custody” of A. M. Y. to petitioner and allowing petitioner to take A. M. Y. for medical treatment.

In the document wherein the biological mother relinquished custody of A. M. Y. to petitioner, she acknowledged that A. M. Y. would thereafter reside in Florida, yet she made no arrangements to visit with the child or remain in contact with petitioner. In fact, for almost 20 months after the biological mother relinquished custody of A. M. Y. to petitioner, she neither visited A. M. Y. nor contacted petitioner.

Over a year after petitioner received custody of A. M. Y., she “went to see [the biological mother] at her residence” and the biological mother again affirmed her desire to relinquish parental rights of A. M. Y. and allow petitioner to adopt the child. Following this conversation, petitioner enjoyed over six months of custody and control of A. M. Y. with the biological mother’s consent and without the biological mother’s influence. It was not until after petitioner sought to complete the adoption that the biological mother showed any resistance to the adoption or inclination to visit with A. M. Y.

Finally, A. M. Y.’s biological parents have not provided or attempted to provide financial support for the child. This responsibility was fully assumed and accomplished by petitioner, who has loved, cared and provided for A. M. Y. since birth. “When ‘duty and control is lost or alienated to a third person by any of the means recognized by law, then such third person stands in loco parentis to the child,’ Waldrup v. Crane, 203 Ga. 388, 391 (46 SE2d 919) (1948), and parental power ‘remains in the third person until the child reaches majority!,)’ Carswell, Moxley & Son v. Harrison, 33 Ga. App. 140 (126 SE 293) (1925), unless of course the third party loses or forfeits the right to custody or becomes unfit for retaining custody. Carter v. Brett, 116 Ga. 114 (42 SE 348) (1902); Saxon v. Brantley, 174 Ga. 641 (163 SE2d 504) (1932); Shope v. Singleton, 196 Ga. 506 (27 SE2d 26) (1943); Triplett v. Elder, 234 Ga. 243 (215 SE2d 247) (1975).” In re M. A. F., 254 Ga. 748, 750 (1), 751, supra. The circumstances of the case sub judice clearly demonstrate that the biological mother relinquished her parental rights to petitioner and that petitioner responded by providing A. M. Y. with consistent parental love, guidance, sustenance and control. Consequently, we will not disturb the superior court’s holding terminating the biological father’s and mother’s parental rights and allowing petitioner to adopt A. M. Y. See In re A. J. A., 164 Ga. App. 210 (2), 211 (4) (296 SE2d 103).

Decided January 9, 1989 —

Rehearing denied January 19, 1989.

Paula K. Hanington, for appellant.

Robert H. Revell, Jr., for appellee.

2. We find no reversible error in the superior court’s failure to consider an investigation and report by the Department of Human Resources as provided by OCGA §§ 19-8-11 and 19-8-12, as there was no evidence refuting petitioner’s testimony that she has provided A. M. Y. with a stable and loving home environment. Chandler v. Cochran, 247 Ga. 184, 185 (2) (275 SE2d 23).

Judgment affirmed.

Pope and Benham, JJ., concur.

       Despite the biological mother’s contention that petitioner was secreting A. M. Y., the overwhelming evidence showed that the biological mother had access to information regarding petitioner’s whereabouts at all times. Other relevant evidence showed that the biological mother was in Jacksonville, Florida on business for a two-week period in February 1987 and, after two failed telephone attempts to contact petitioner, the biological mother made an attempt to visit A. M. Y. at petitioner’s home. However, after driving “around trying to find the street and the house” for about “an hour and a half,” she abandoned the effort when she “couldn’t find it.”