text:
    A01A2102.
    TRENT v. FRANCO et al.
    (558 SE2d 66)
   Eldridge, Judge.

This is an appeal from a grant of defendant Stephanie Franco’s motion to dismiss plaintiff Tara Trent’s renewal action, which motion was based upon the alleged failure to properly serve Franco in the original personal injury action. In this same appeal, Trent also challenges the trial court’s grant of summary judgment to Franco’s stepfather, Jose Cabrera, on a theory of negligent entrustment. Upon review, we reverse the judgment of the court below granting Franco’s motion to dismiss the renewal action; however, we affirm the trial court’s grant of summary judgment to Cabrera.

The record shows that on November 21, 1996, Franco, an unlicensed 14-year-bld, took the keys to her stepfather’s, defendant Jose Cabrera’s, car without permission. She drove it to the Winn-Dixie grocery store on Highway 29 in Lilbum. While attempting to park in an angled parking space from the wrong direction, Franco struck the outside of the opened door of Trent’s car in the adjoining space. Trent was standing between the door and the car frame; she was injured in the collision. The record establishes that while Franco was a “problem child” who had been in trouble with the police prior to the incident, she had never driven her stepfather’s car before and had never before been involved in “automobile-related problems.”

Trent’s original complaint for damages, Civil Action No. 98-C-6438-1, was filed in the State Court of Gwinnett County on November 16, 1998. The complaint alleged that both Franco and Cabrera live in Gwinnett County. Franco was personally served at her Gwinnett County home at 789 Sunfield Drive on November 17, 1998, and she gave the complaint to Cabrera who forwarded such on to his insurance company. On December 17, 1998, a timely answer and demand for jury trial were filed on behalf of both Franco and Cabrera. Franco was then personally served at 789 Sunfield Drive on March 17, 1999, and filed a responsive amended answer on March 24, 1999.

Eight months later, in December 1999, Franco filed a motion to dismiss, claiming that, as a minor defendant, service had not been perfected pursuant to OCGA § 9-11-4 (d) (3), because a parent or legally appointed guardian had not been served in addition to Franco as required by the statute. Trent then attempted to serve Franco’s mother, Germania Cabrera, at 789 Sunfield Drive. However, upon such attempt, it was discovered that Franco, her mother, and Jose Cabrera had moved from 789 Sunfield Drive in Gwinnett County and now resided in their native Dominican Republic.

Trent hired a private investigator who located the family in Santiago, Dominican Republic. In a pleading and supporting affidavit filed in response to Franco’s motion to dismiss, Trent asserted that the defendants were no longer residents of Georgia, but resided in the Dominican Republic. Therein, Trent expressed an intent to serve Germania Cabrera by publication. Such service was agreed to in a letter from Franco’s attorney.

Shortly thereafter, another affidavit was filed asserting that Franco and the Cabreras are residents of the Dominican Republic and that Germania Cabrera, Franco’s mother, would be served in the Dominican Republic pursuant to the Long Arm Statute so as to complete the service requirements of OCGA § 9-11-4 (d) (3). It is undisputed that on February 3, 2000, Trent had Franco’s mother served with a copy of the complaint by a licensed process server in the Dominican Republic. The return of service on Franco’s mother is a part of the record in the original action. On February 8, 2000, following service of Franco’s mother and prior to a ruling on Franco’s motion to dismiss for failure to serve her mother, Trent voluntarily dismissed the original complaint without prejudice.

Less than a month later, on March 1, 2000, Trent refiled her complaint under OCGA § 9-2-61, the Renewal Statute, as Civil Action No. 00-C-1456-1. On March 16, 2000, Franco, her mother, and Cabrera were served in the Dominican Republic with copies of the renewed complaint. Franco then filed a motion to dismiss the renewal action, claiming the original action was “void” because Trent failed to amend her original complaint to allege that Franco was no longer a Georgia resident and therefore amenable to service under the Georgia Long Arm Statute, OCGA § 9-10-94.

The trial court agreed and dismissed Trent’s renewal action as grounded on an improper original complaint; the court specifically found that

Plaintiff failed to amend the Complaint in the original action to reflect that Defendant Stephanie Franco would be served through her mother by way of the Long Arm Statute. OCGA § 9-10-91. Service on Stephanie Franco in the original action was not proper and a proper suit was not initiated.

In addition, the trial court granted summary judgment to Jose Cabrera on Trent’s theories of recovery premised on negligent entrustment and the Family Purpose Doctrine. This appeal resulted. Held:

1. The trial court granted Franco’s motion to dismiss Trent’s renewal action because of the alleged failure to effect proper service of the original complaint on her mother as required by OCGA § 9-11-4 (d) (3). In that regard,

[t]he renewal statute is remedial in nature; it is construed liberally to allow renewal where a suit is disposed of on any ground not affecting its merits. The “privilege” of dismissal and renewal does not apply to cases decided on their merits or to void cases, but does allow renewal if the previous action was merely voidable. The original suit is void if service was never perfected, since the filing of a complaint without perfecting service does not constitute a pending suit. A suit is also void and incapable of renewal under OCGA § 9-2-61 (a) if there has been a judicial determination that dismissal is authorized. However, unless and until the trial court enters an order dismissing a valid action, it is merely voidable and not void.

Thus, service issues in renewal actions can engender considerable confusion. This is so because of the difficulty in distinguishing between an action wherein a “defect” in service is amendable on the pleadings, rendering an otherwise valid action only voidable — and an action wherein the “defect” is the absence of service, itself, rendering an action “wholly void” since the trial court never obtained jurisdiction over the party due to such failure of service. No confusion presents itself in the instant case, however, since, in the original action, service on minor defendant Franco was perfected pursuant to the requirements of OCGA § 9-11-4 (d) (3). The trial court’s finding to the contrary was premised on two incorrect determinations as follows.

(a) In an unexplained bit of reasoning, the trial court determined that the service on Franco’s mother which is required by OCGA § 9-11-4 (d) (3) was actually service on defendant Franco, herself, “through” her mother. We disagree.

“Where statutory language is plain and unequivocal and leads to no absurd or impracticable consequence, the court has no authority to place a different construction upon it.” OCGA § 9-11-4 (d) (3) provides in pertinent part that service of process in a case involving a minor defendant must be “to the minor, personally, and also to such minor’s father [or] mother.” Accordingly, the plain wording of the statute does not support the trial court’s determination that the minor is the one actually being served “through” service on the parent. Instead, the personal service required on a minor is separate and distinct from the service required on her parent, which parental service is for purposes of notice, only. Thus, the trial court’s finding that Franco, herself, was being served “through” the service on her mother is error as a matter of law. Here, service of the original action as required by OCGA § 9-11-4 (d) (3) was made by personal service of the original complaint to then Georgia resident Franco and, thereafter, perfected by personal service of the original complaint made to Franco’s nonresident mother in the Dominican Republic.

(b) The trial court determined that the original complaint should have been amended to reflect that Franco was no longer a Georgia resident and was amenable to service under the Georgia Long Arm Statute in order to serve Franco’s mother thereunder. We disagree.

Defendant Franco had already been personally served in Gwinnett County with the original complaint before she moved to the Dominican Republic. Thus, whether or not Franco was amenable to service of the original complaint under the Long Arm Statute is irrelevant. The service in dispute is on Franco’s nonparty mother, Ger-mania Cabrera, and it is Mrs. Cabrera’s residency that is at issue for purposes of proper service on her of the original complaint, regardless of where Franco resided at the time of such service.

Here, the original complaint did not mention Germania Cabrera or her residency. There was no statement of residence in the original complaint regarding nonparty Germania Cabrera to “amend” in order to reflect her amenability to service under the Long Arm Statute. Moreover, the evidence before the trial court was that Germania Cabrera had moved from the State; thus, such evidence — uncontradicted by any prior statement in the original complaint — was put before the court which caused the pleadings to be amended to conform with the evidence. OCGA § 9-11-15 (b). Amendment of the original complaint in order to reflect Franco’s status as a nonresident would not affect the manner of service upon her nonparty mother for purposes of the notice required by OCGA § 9-11-4 (d) (3). Further, even if amendment to the pleadings had been necessary, such would have been an “amendable defect” appearing on the complaint, rendering the original valid action voidable and not “wholly void” due to the absence of service, itself.

For these reasons, the trial court incorrectly determined that Franco was not properly served with the original complaint pursuant to OCGA § 9-11-4 (d) (3), and dismissal of the renewal action was error.

Decided December 19, 2001.

William W. Gardner, for appellant.

Cooper & Makarenko, Gary M. Cooper, William Z. Meadows, for appellees.

2. Trent challenges the trial court’s granting of summary judgment to Jose Cabrera on Trent’s claim of negligent entrustment. Summary judgment is appropriate where “there is no genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law.” In this case, the facts and the law support the grant of summary judgment to Cabrera.

Liability for negligent entrustment is predicated upon “a negligent act of the owner in lending his automobile to another to drive, with actual knowledge that the driver is incompetent or habitually reckless.” Here, the record contains no evidence either that Cabrera lent his automobile to Franco or that he had knowledge that Franco was an incompetent or habitually reckless driver. The record establishes that Franco took the car without permission and had never done so before, thereby precluding any knowledge on Cabrera’s part.

Further, despite Trent’s claims to the contrary, we do not find that Franco’s prior, nonautomobile-related “troubles” with the police can forge the knowledge required for negligent entrustment. Nor do we find that the “conflict” between Franco’s deposition testimony that she took the car keys without permission from her mother’s dresser and Cabrera’s deposition testimony that Franco took the car keys without permission from her mother’s purse creates a disputed issue of material fact so as to require jury resolution. Accordingly, the award of summary judgment was appropriate.

Judgment reversed as to the grant of the motion to dismiss. Judgment affirmed as to the grant of summary judgment. Case remanded.

Andrews, P. J., and Miller, J., concur.

       The 2000 amendment, Ga. L. 2000, p. 1225, § 1, redesignated subsection (d) as subsection (e); however, for purposes of this opinion, we will refer to subsection (d).

       (Citations and punctuation omitted.) Hobbs v. Arthur, 264 Ga. 359, 360 (444 SE2d 322) (1994).

       See, e.g., Allen v. Kahn, 231 Ga. App. 438 (499 SE2d 164) (1998) (disapproving three decisions of this Court for failure to recognize that, in a renewal action, valid service may be had in the original action outside the statute of limitation).

        Malave v. Allstate Ins. Co., 246 Ga. App. 783, 786 (541 SE2d 420) (2000).

       (Citation omitted.) State v. Johnson, 269 Ga. 370, 372 (1) (499 SE2d 56) (1998).

       (Emphasis supplied.) OCGA § 9-11-4 (d) (3). Hereinafter, reference under the statute will be to a “parent,” although service may also be accomplished upon a legal guardian or guardian ad litem.

       See Ga. L. 1966, p. 609, § 4; Outlaw v. Outlaw, 121 Ga. App. 284, 285 (2) (173 SE2d 459) (1970); Collins v. Collins, 148 Ga. App. 103, 104 (1) (250 SE2d 870) (1978) (such “ ‘ “notice is the very bedrock of due process” ’ ”); accord Negelow v. Mouyal, 178 Ga. App. 53 (342 SE2d 14) (1986); Lanier v. Foster, 133 Ga. App. 149, 152-153 (210 SE2d 326) (1974); Harvey v. Harvey, 147 Ga. App. 154 (2) (248 SE2d 214) (1978); see also Smith v. Brooks, 247 Ga. App. 831, 832 (545 SE2d 135) (2001) (parent-child relationship does not render parent liable for the tort of minor child).

       OCGA § 9-10-90 et seq.

       Notably, Franco does not claim that service upon her mother was otherwise improper under the Long Arm Statute. Indeed, she concedes that such service was “reasonable.” She states only that service under the Long Arm Statute would not be proper unless the original complaint was amended to assert that Franco was no longer a resident of Georgia.

       Compare Shahan v. Scott, 259 Ga. 172 (377 SE2d 859) (1989) (use of Long Arm Statute to serve defendant in another state is improper when complaint specifically alleges that defendant is a Georgia resident); accord Driver v. Nunnallee, 226 Ga. App. 563 (487 SE2d 122) (1997).

       A minor and her parent may reside separately.

       Contrary to Franco’s contentions at trial, Germania Cabrera was not a Georgia resident at the time of service and was not identified as such; thus, service under OCGA § 9-11-4 (e) (2) would have been inappropriate as applying only to residents of Georgia who are out of state at the time of service.

        Malave v. Allstate Ins. Co., supra at 786; Hobbs v. Arthur, supra at 359-360; Hedquist v. Merrill Lynch &c., 272 Ga. 209, 212 (3) (528 SE2d 508) (2000).

       Trent also proceeded against Cabrera under the Family Purpose Doctrine, but does not make argument or cite authority with regard to the grant of summary judgment thereon.

       OCGA § 9-11-56 (c).

       (Punctuation omitted.) Pague v. Pendley, 177 Ga. App. 573, 575 (3) (340 SE2d 190) (1986).

       See, e.g., Bruno’s Food Stores v. Taylor, 228 Ga. App. 439, 442 (491 SE2d 881) (1997).


source: Caselaw Access Project

author: Andrews, Presiding Judge.

license: Public Domain

text:
    A01A2144.
    BAYLIS v. ATLANTA INTEGRITY MORTGAGE, INC.
    (558 SE2d 429)
   Andrews, Presiding Judge.

Atlanta Integrity Mortgage, Inc. (AIM) sued Willa Andrella Baylis to collect a mortgage broker fee it claimed due for procuring a mortgage for Baylis’s residence. Baylis appeals from the judgment entered on a jury verdict finding she owed the fee and awarding AIM $16,912.50 in brokerage fees, plus interest and attorney fees. Because there was evidence to support the verdict finding that AIM earned the fee by procuring the mortgage and was entitled to attorney fees under its contract, we affirm the judgment.

1. Baylis claims the trial court should have granted her motion for a directed verdict or a judgment notwithstanding the verdict because the Evidence showed as a matter of law that AIM did not procure the mortgage.

Baylis entered into a nonexclusive contract with AIM which provided that AIM would make efforts to find a mortgage for her residence and was entitled to a brokerage fee equal to 1.25 percent of any mortgage obtained for her by AIM. Joseph Wood, Jr., a mortgage broker operating as AIM, testified that Baylis hired him after she had encountered difficulty finding a mortgage in excess of $1,000,000 for construction of a large residence with an unusual configuration — a 6,900-square-foot home containing only one 2,000-square-foot bedroom. In the process of looking for a mortgage lender, Wood contacted Keith Hall at Hallmark Financial Services. Hall told Wood that, because of the size of the mortgage, he was unable to act as a lender but that he could act as a broker and attempt to find a mortgage. At a meeting on January 12, 1998, Wood introduced Baylis to Hall. According to Wood, Baylis agreed that Hallmark would become involved as another mortgage broker working with AIM to obtain a mortgage, that AIM’s fee would continue to be 1.25 percent of the mortgage, and that Hallmark would receive a fee of 1.5 percent of the mortgage.

Hall contacted Countryside Home Loans, which eventually provided the mortgage for Baylis’s residence. Wood did work on Baylis’s mortgage application and financial and disclosure statements and found an appraiser and worked with the appraiser to find comparable residences in the area to support an appraisal of Baylis’s unusually configured residence sufficient to obtain the mortgage from Countryside. Evidence showed that Countryside not only used the appraisal obtained by Wood, but also used that appraisal as the basis for a second appraisal required to support the mortgage. Wood produced phone records showing his continuing work with Hall and an agent of Baylis to obtain the mortgage up to and through the mortgage closing, which he attended along with Baylis and Hall on January 5, 1999.

Baylis, on the other hand, testified that she no longer considered AIM to be her mortgage broker after Hall became involved and that she never agreed to pay two mortgage brokers. She testified that she paid Hallmark a 1.5 percent brokerage fee because Hall found the mortgage for her. Hall testified that, although he communicated on a regular basis with Wood about obtaining the mortgage, he received no assistance from Wood to obtain the mortgage. He stated that he initially thought Hallmark and AIM were going to agree to receive a single brokerage fee acting as co-brokers, but that no such agreement was ever reached.

On the above facts, the issue was not whether Baylis agreed to pay two separate brokerage fees, as claimed by Wood. Under the terms of its nonexclusive agreement with Baylis, AIM was entitled to collect a fee only if it actually obtained the mortgage or was the procuring cause of the mortgage. Because Baylis did not grant an exclusive contract to AIM to find her a mortgage, she was free to contract with Hallmark to obtain the mortgage. Kraft Land Svcs. v. Hart Co., 165 Ga. App. 358, 362 (300 SE2d 186) (1983). However, AIM was entitled to show that, even though it did not have an exclusive contract and even though another broker initially found the mortgage lender and worked on obtaining the mortgage, it was the procuring cause of the mortgage. Id. Accordingly, the issue is whether there was evidence to support the jury’s conclusion that AIM earned its fee by procuring the mortgage. We will affirm the jury’s verdict if there is any evidence to support it. Centre Pointe Investments v. Frank M. Darby Co., 249 Ga. App. 782, 785 (549 SE2d 435) (2001).

There was evidence that AIM, through the efforts of Wood, located and associated Hall in an effort to obtain a mortgage, provided documentation necessary for the mortgage, obtained an appraisal used to support the mortgage, and continued to work on the mortgage with Hall until the closing.

Where the services of a broker, as well as those of another broker, have conjointly contributed to the successful termination of negotiations resulting in the [acquisition of a mortgage] for an owner, the question which of the brokers is entitled to commissions from the owner for [procuring such mortgage] depends upon whose efforts were the primary, proximate, and procuring cause of the [mortgage]. The broker whose services and efforts were the primary, proximate, and procuring cause of [the mortgage] would be entitled to the commissions.

Gresham v. Lee, 152 Ga. 829, 830 (111 SE 404) (1922). AIM produced evidence showing that with the knowledge of Baylis or her agent it continued as part of negotiations to obtain the mortgage through the time of the closing on the mortgage. See Kraft Land Svcs., 165 Ga. App. at 363. Whether under the circumstances these efforts were the procuring cause of the mortgage was a jury question. May v. Sibley, 85 Ga. App. 544 (69 SE2d 693) (1952); Newman v. James M. Vardaman & Co., 162 Ga. App. 878, 882 (293 SE2d 462) (1982).

Decided December 19, 2001.

Pat D. Dixon, Jr., for appellant.

Herald J. Alexander, for appellee.

Even if Baylis contracted to pay a commission only to the broker who was the procuring cause of the mortgage, she proceeded at her own peril to pay Hallmark instead of AIM without a determination as to which broker’s efforts were the procuring cause. Gresham, 152 Ga. at 831. Although a jury could have concluded on the above facts that AIM was not the procuring cause and was not entitled to receive a brokerage fee, there was evidence to support the jury’s verdict to the contrary. The trial court did not err by denying Baylis’s motions for a directed verdict and for j.n.o.v.

2. Contrary to Baylis’s contention, there was evidence to support the jury’s award of attorney fees and expenses in the amount of $19,567.42.

We agree that there was no basis for the award of attorney fees or expenses pursuant to OCGA § 13-6-11 because there was no evidence that Baylis acted in bad faith, and there was a bona fide controversy between the parties. However, AIM was entitled to recover its attorney fees and costs, as shown by the evidence, pursuant to a clause in its contract with Baylis providing for payment of those expenses incurred by AIM in the collection of its fee. Sylar v. Hodges, 250 Ga. App. 42 (550 SE2d 438) (2001).

Judgment affirmed.

Eldridge and Miller, JJ, concur.


text:
    A01A2349.
    WOODHAM v. THE STATE.
    (558 SE2d 454)
   Andrews, Presiding Judge.

John Floyd Woodham appeals from his conviction, following a bench trial, of making an illegal left turn.

Woodham was driving in front of Atlanta Police Officer Boyd around 1:30 a.m. on February 9, 2001. Officer Boyd, traveling north on Piedmont Road, observed Woodham move left from one lane to another without signaling. Shortly thereafter, Officer Boyd observed Woodham stop at the intersection of Piedmont Road and East Wesley and then turn left onto East Wesley, again without signaling.

The Uniform Traffic Citation issued by Officer Boyd charged Woodham with “[improper left turn in violation of [OCGA §] 40-6-120. . . .” The REMARKS section of the UTC stated, “NB on Piedmont made left lane change w/o signal in front of a car, made left turn without signal onto E. Wesley oncoming traffic no signal.”

1. Woodham’s first enumeration is that the trial court erred in denying his motion for directed verdict of acquittal. But,

the trial court could not have directed a verdict of acquittal because there is no verdict in a bench trial. Therefore, even if a motion for a directed verdict was made, such a motion has no meaning when a case is tried without a jury. . . . [T]he issue is whether the evidence was sufficient at trial to support a conviction under the standards of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

(Citation omitted.) Jones v. State, 226 Ga. App. 608, 609 (487 SE2d 89) (1997). See also Poole v. State, 249 Ga. App. 409, 410 (548 SE2d 113) (2001); Goodson v. State, 242 Ga. App. 167, 168 (529 SE2d 175) (2000).

The evidence was legally sufficient. Jackson v. Virginia, supra.

2. In his second enumeration, Woodham contends that the trial court erred in allowing the “de facto” amendment to the charges against him. This argument is premised upon Woodham’s contention that, because the officer included the incorrect numerical reference to the statute which he was charged with violating, prosecution could not proceed pursuant to the UTC even if the factual allegations alleged all the elements of the Code section meant to be referenced.

This contention, however, is incorrect and has been determined adversely to Woodham by Miller v. State, 182 Ga. App. 700, 701 (356 SE2d 900) (1987), and Curtis v. State, 80 Ga. App. 244, 246 (55 SE2d 758) (1949). See also Davis v. State, 272 Ga. 818, 819 (1) (537 SE2d 327) (2000); Johnson v. State, 247 Ga. App. 157, 160 (2) (543 SE2d 439) (2000).

3. Finally, Woodham contends that the trial court’s finding of guilt violates the double jeopardy protections of OCGA § 16-1-8. Any such claim is not yet ripe. McCuen v. State, 191 Ga. App. 645, 646 (382 SE2d 422) (1989). See generally Pennyman v. State, 222 Ga. App. 779 (476 SE2d 71) (1996).

Decided December 19, 2001.

Traffic violation. Fulton Traffic Court. Before Judge Hairston. John F. Woodham, pro se.

Joseph J. Drolet, Solicitor-General, Craig E. Miller, Assistant Solicitor-General, for appellee.

Judgment affirmed.

Eldridge and Miller, JJ., concur.

       There was, in fact, neither a de facto nor a de jure amendment to the UTC. The trial was conducted on the UTC issued by the officer.

       The UTC referred to OCGA § 40-6-120, when the proper reference was OCGA § 40-6-123.


text:
    A01A2363.
    CHEEK v. NATIONAL AUTO SALES, INC.
    (558 SE2d 451)
   Andrews, Presiding Judge.

Natalie Cheek appeals from the trial court’s grant of National Auto Sales, Inc.’s motion for summary judgment on her complaint for damages after she fell trying to step under a chain in back of National’s car lot. Because Cheek failed to show that she exercised reasonable care for her own safety, we affirm.

Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. OCGA § 9-11-56 (c). To obtain summary judgment, a defendant need not produce any evidence, but must only point to an absence of evidence supporting at least one essential element of the plaintiff’s claim. Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

The evidence in this case is not in dispute. According to Cheek’s deposition testimony, she saw a van on National’s lot as she was driving by and decided to stop and take a look at it. She was in a hurry, so instead of pulling into the dealership’s parking lot, she drove down an access road that ran behind the dealership and parked her car. Leaving her three-year-old child and six-month-old child in the car, she “stooped” under a chain running between two poles and fell. Cheek said that she was looking at the ground but she did not see what caused her fall. Cheek admitted that at the time of the fall she was in a hurry, was carrying a Coke in one hand, and was wearing “blue-blocker” sunglasses.

National submitted pictures which Cheek acknowledged accurately depicted the area on the day she fell. The pictures show an obvious hole directly under the chain and also show that the area was fenced off with no access to the car lot from that street. National also submitted evidence that it was unaware of anyone improperly using this unauthorized route to come onto its lot.

National filed a motion for summary judgment, raising numerous defenses. The trial court granted the motion, determining that when Cheek departed from the authorized entry to the car lot, she assumed the risk of any hazards related to her unauthorized entry. This appeal followed.

In order to recover on a slip and fall claim, the plaintiff must show that she exercised the degree of care necessary under the circumstances to avoid injury to herself. Sadtler v. Winn-Dixie Stores, 230 Ga. App. 731, 732 (498 SE2d 101) (1998).

The reasonable selection of a route of travel is a part of the invitee’s duty to exercise ordinary care for her own safety. While an invitee need not necessarily choose the safest course across the owner/occupier’s property, where an invitee voluntarily departs from the route designated and maintained by the owner/occupier for the invitee’s safety and convenience, the degree of caution required by the invitee’s duty to exercise ordinary care for her own safety is heightened by any increased risk resulting from that choice. Under such conditions, the invitee assumes the risk of those hazards existent in the selected route where the conditions do not constitute a hazard when the traversed property is used for its intended purpose, unless the hazard is common to both areas or the owner has notice that the unauthorized route is being regularly used improperly.

(Citation omitted.) Gaydos v. Grupe Real Estate Investors, 211 Ga. App. 811, 813 (440 SE2d 545) (1994).

In Gaydos, the plaintiff took a shortcut across a lawn instead of using a concrete walkway. The plaintiff argued the defect was not visible, but we held that her failure to react to the diminished visibility and conduct herself accordingly constituted a failure to exercise ordinary care for her own safety. Id.

This Court has repeatedly cited and followed the principles established in Gaydos in cases where the plaintiff has deviated from a safe travel route and voluntarily traversed a more dangerous path. See Farmer v. Wheeler/Kolb Mgmt. Co., 224 Ga. App. 834, 836 (482 SE2d 475) (1997) (summary judgment affirmed where pedestrian tripped over concrete as she was cutting across parking lot through parked cars rather than through the aisle of the parking lot); MARTA v. Fife, 220 Ga. App. 298, 301 (2) (469 SE2d 420) (1996) (denial of summary judgment reversed where plaintiff stepped off curb into drainage culvert when MARTA provided an area for picking up passengers but the plaintiff chose to use the street instead).

Lowery’s Tavern v. Dudukovich, 234 Ga. App. 687, 691 (3) (507 SE2d 851) (1998).

Decided December 19, 2001.

Roy B. Roberts, for appellant.

Conoscienti, Storm & Kendall, Michael C. Kendall, for appellee.

Therefore, in accordance with Gaydos and related cases, Cheek was charged with the duty to exercise a heightened degree of attention for her own safety and assumed whatever heightened risks were associated with unnecessarily departing from the authorized entrance to National’s car lot. Id.

The evidence discussed above shows that Cheek assumed the risk of any hazards when she chose to enter National’s car lot by an unauthorized route and that Cheek failed to show that she exercised a heightened degree of reasonable care under the circumstances. Accordingly, National was entitled to summary judgment, and the trial court properly granted it.

Judgment affirmed.

Eldridge and Miller, JJ, concur.


author: Eldridge, Judge.

text:
    A01A2402.
    WILLIAMS et al. v. J. J. BUTLER, INC.
    (558 SE2d 449)
   Eldridge, Judge.

Lillie M. Williams, as an invitee of J. J. Butler, Inc. d/b/a Butler Lexus, fell crossing its parking lot where she claimed to have tripped over a “ridge” in the asphalt surface, which she had not seen prior to her fall or after her fall although there were no cars or other obstructions to prevent her from seeing it. Mrs. Williams and her husband George sued Butler Lexus for negligence. Butler Lexus answered, and after the depositions of the plaintiffs, it moved for summary judgment, which the trial court granted. We affirm.

Neither immediately before her fall nor immediately after her fall did plaintiff see what caused her fall. Plaintiff’s husband was not with her when she fell and did not see her fall or where she fell. After returning from receiving medical treatment, Mrs. Williams and her husband looked for the cause of her fall and identified the “ridge” as the cause. However, subsequently they were never able to relocate the “ridge,” and the plaintiff could not describe the “ridge” other than it was a raised area. The plaintiffs never pointed out the “ridge” to any employee of the defendant. The general manager and service manager of the defendant testified that they were unaware of and had no report of “any defect, ridge, area of unevenness or any other such irregularity in the parking lot” pavement either prior to or subsequent to plaintiffs fall. When plaintiff first reported her fall to the defendant immediately after her injury, she merely stated that she fell in the parking lot and could not identify where or what caused the fall.

In Alterman Foods v. Ligon, 246 Ga. 620, 621 (272 SE2d 327) (1980), plaintiff did not know the cause of her slip and fall, and the trial court granted summary judgment. Such case was decided based upon a foreign substance analysis, which required actual or constructive knowledge of the danger, and a maintenance analysis in which the dangerous condition must be presumed within the knowledge of the owner, because the condition was created at his direction. Id. at 623-624. Under the foreign substance analysis, “the plaintiff must show . . . that the defendant had actual or constructive knowledge of the foreign substance.” Id. at 623. In Robinson v. Kroger Co., 268 Ga. 735, 746-747 (2) (493 SE2d 403) (1997) (explained when plain view and distraction doctrine applicable), on motion for summary judgment, the Supreme Court of Georgia, in foreign substance cases, continued to require either actual knowledge or constructive knowledge of the danger “or by failing to exercise ordinary care to ascertain the hazard’s presence.” (Citation omitted.) Id. at 747 (2) (b). It is “only when the perilous instrumentality is known to the owner or occupant and not known to the person injured that a recovery is permitted.” (Citation and punctuation omitted.) Alterman Foods v. Ligon, supra at 622. This has otherwise been expressed: “the statutory principle [is] that an owner or occupier of land is charged with [the] exercising [of] ordinary care to keep the premises safe (OCGA § 51-3-1), and [it is] the fundamental basis for an owner or occupier’s liability — that party’s superior knowledge of the hazard encountered by the plaintiff.” Robinson v. Kroger Co., supra at 736 (1). Such becomes important in the analysis of this case, because this is an alleged static condition case and not a foreign substance or maintenance case. However, the defendant has presented unrebutted evidence that it was not aware of any static condition; therefore, constructive knowledge of the defendant must be established by circumstantial evidence, and the foreign substance analysis becomes applicable, requiring proof of constructive knowledge by the defendant.

We characterize a “static” defect as one which in and of itself is not dangerous. Certainly where there is common knowledge of a break in pavement, the defect standing alone is not dangerous or likely to cause injury until such time as one drives into it or falls into it. The rules governing the land proprietor’s duty to his invitee presuppose that the possessor knows of the condition and has no reason to believe that they (his invitees) will discover the condition or realize the risk involved therein. 2 Restatement, Law of Torts, § 343. The basis of the proprietor’s liability is his superior knowledge, and if his invitee knows of the condition or hazard there is no duty on the part of the proprietor to warn him and there is no liability for resulting injury because the invitee has as much knowledge as the proprietor does and then by voluntarily acting in view of his knowledge, assumes the risks and dangers incident to the known condition. Thus we can characterize the rule in relation to a static condition as being that the basis of liability of an owner to an invitee who is injured is the superior knowledge of the owner of the existence of a condition that could subject the invitee to an unreasonable risk of injury.

(Citations and punctuation omitted.) Inglett v. Winn Dixie, Greenville, 168 Ga. App. 192, 194 (308 SE2d 587) (1983) (plain view and prior knowledge of two holes in pavement at entrance); accord Hadaway v. Cooner Enterprises, 172 Ga. App. 113, 114-115 (321 SE2d 830) (1984) (expansion crack at entrance — plain view doctrine); Pound v. Augusta Nat., 158 Ga. App. 166, 168 (279 SE2d 342) (1981) (static condition of gravel-surfaced parking area). However, on summary judgment the issue of plaintiffs own negligence or assumption of risk is not considered as the second prong of the Alterman Foods standard. Robinson v. Kroger Co., supra at 746-749.

If a permanent, patent, dangerous condition exists on the premises that was neither caused by a foreign substance nor maintenance and qualifies as a static condition, then the owner/occupier has constructive knowledge of such hazardous condition through the passage of time. Freyer v. Silver, 234 Ga. App. 243, 245-246 (2) (507 SE2d 7) (1998) (defective storm drain — plain view); Bramblett v. Earl Smith Floors, 227 Ga. App. 296, 297 (488 SE2d 766) (1997) (two floor levels/distraction); MARTA v. Fife, 220 Ga. App. 298, 300 (2) (469 SE2d 420) (1996) (plain view applicable to a culvert).

However, under the facts of this case, the defendant had no knowledge of the “ridge” either before or after the fall; plaintiff did not see the “ridge” either prior to or immediately after the fall. The plaintiffs had difficulty in describing the “ridge” that they found later and cannot now find. Thus, plaintiffs have failed to raise a material issue of fact that the defendant had either actual or constructive knowledge either equal to or superior to their own knowledge, because they failed to present evidence that this was an observable static condition. See Lau’s Corp. v. Haskins, 261 Ga. 491, 492-493 (1) (405 SE2d 474) (1991).

Judgment affirmed.

Miller, J., concurs. Andrews, P. J., concurs in judgment only.

Decided December 19, 2001.

Peter G. Williams, for appellants.

Carlock, Copeland, Semler & Stair, Douglas W. Smith, Nicholas M. Hollander, for appellee.


text:
    A01A2457.
    In the Interest of B. B. S., a child.
    (558 SE2d 447)
   Andrews, Presiding Judge.

The putative father of B. B. S. appeals from the juvenile court’s order terminating his parental rights after he failed to timely file a legitimation petition under OCGA § 15-11-96 (i). We find no reversible error and affirm.

The record shows that B. B. S. was born on May 24, 2000, and taken into protective custody on May 26, 2000, after he and the mother both tested positive for cocaine. At the time, the mother was married to another man, but was living with appellant. The guardian ad litem recommended termination of the rights of the mother and both the legal and biological fathers, stating that the parents’ home was unfit and that none of the parents had expressed any interest in the child or provided any support for the child.

The record shows, and the juvenile court found, that the termination petition was served on the appellant on June 15, 2000. The father was directed to file a legitimation petition within 30 days of receiving the notice.

At the termination hearing on April 9, 2001, the juvenile court noted that the father had filed a legitimation petition the week before the hearing. Counsel for the father stated that the father was present in court and he believed the father would testify that he was not aware of the need to file the legitimation petition. The juvenile court declined to allow the putative father to testify and terminated his rights pursuant to OCGA § 15-11-96 (i). This appeal followed.

OCGA § 15-11-96 (i) provides in pertinent part:

A biological father who is not the legal father loses all rights to the child and the court shall enter an order terminating all such father’s rights to the child and such father may not thereafter object to the termination of his rights to the child if within 30 days from his receipt of the notice provided for in subsection (e) of this Code section he: (1) Does not file a legitimation petition and give notice as required in subsection (h) of this Code section. . . .

It is undisputed that the father did not file a legitimation petition within 30 days of receipt of the termination notice, but instead waited almost a year before filing the petition the week before the termination hearing. The father raises, however, three enumerations of error in his appeal from the juvenile court’s order.

1. First, the father argues the trial court erred in not allowing him to testify. He states that his counsel stated that he was not aware of any other legitimation petitions, but this was not shown by clear and convincing evidence because neither the father nor his initial counsel was allowed to testify. The father claims the court should have held an evidentiary hearing before terminating his rights.

The father cites to no case law in support of this argument, and we find none. Moreover, the father submitted no evidence to the juvenile court that he ever attempted to file an earlier legitimation petition and points to no evidence on appeal that he would have submitted to the juvenile court. The father was represented by counsel who appeared in his stead and who could have introduced any evidence appellant wished to put before the court. Accordingly, we must conclude the father suffered no harm in not participating in the hearing and, therefore, has shown no reversible error in the trial court’s decision. In the Interest of C. T., 247 Ga. App. 522, 525 (544 SE2d 203) (2001).

2. Next, the father claims that OCGA § 15-11-96 is unconstitutional because it applies only to fathers and not to mothers. This issue has already been determined adversely to appellant. In the Interest of V.M.T., 243 Ga. App. 732, 734-735 (534 SE2d 452) (2000). See also In the Interest of D. B., 243 Ga. App. 473, 474 (533 SE2d 737) (2000); In re Baby Girl Eason, 257 Ga. 292, 296 (358 SE2d 459) (1987).

3. In his last enumeration of error, the father argues that the court erroneously believed it was without discretion in deciding to terminate his rights under OCGA § 15-11-96 (i). The only support for this enumeration is a statement at the hearing by counsel for the Department of Family & Children Services that the decision to terminate under this Code section “is not a discretionary decision.” But, there is no statement by the juvenile court judge that he believed himself to be without discretion in this matter and nothing in the order to that effect. The burden is on the appellant to show both harm and error affirmatively by the record. In the Interest of J. E. E., 228 Ga. App. 831, 833 (493 SE2d 34) (1997). Accordingly, because there is nothing in the record before us to support this contention, we cannot address this enumeration on appeal.

Judgment affirmed.

Eldridge and Miller, JJ, concur.

Decided December 19, 2001.

Clark & Justice, Joseph T. Justice, O’Brien & Koontz, David J. Koontz, David J. Casey, for appellant.

Thurbert E. Baker, Attorney General, Dennis R. Dunn, Deputy Attorney General, William C. Joy, Senior Assistant Attorney General, Shalen S. Nelson, Laura W. Hyman, Assistant Attorneys General, Hall & Rapoport, Robert E. Hall, Sanders B. Deen, for appellee.


text:
    A01A2486.
    FOCUS ENTERTAINMENT INTERNATIONAL, INC. et al. v. PARTRIDGE GREENE, INC.
    (558 SE2d 440)
   Eldridge, Judge.

Focus Entertainment International, Inc., M&S Zbosnik, Inc., Paul Fuller, Eric Clabaugh, and Peachtree Visuals, LLC d/b/a Inserection appeal from the grant of an interlocutory injunction granted to Partridge Greene, Inc., grantor of an outparcel at Gwinnett Place Mall, to enforce a recorded restrictive covenant in the warranty deed prohibiting the sale or display of pornographic materials; operation of any pornographic business, including massage parlors; adult theaters displaying pornographic pictures or films; and adult bookstores dealing in pornographic materials. The Supreme Court of Georgia in its transfer order stated that this case did not implicate freedom of speech under either the state or federal constitutions but involved the construction of a contract restrictive covenant and transferred this case back to this Court for determination. The grant or denial of an interlocutory injunction based on issues of fact rests in the sound discretion of the trial court; therefore, the trial court is affirmed.

On June 24, 1986, PGI and Martin and Sheila Zbosnik entered into a specific restrictive covenant as part of the recorded general warranty deed regarding the purchase of 3522 Satellite Boulevard, Duluth, Gwinnett County. Such restrictive covenant was part of the common scheme used in the development of Gwinnett Place Mall and all surrounding outparcels to protect the property retained by PGI and other owners of property conveyed by it and leaseholders from PGI. The restrictive covenant stated that the property was prohibited from being “used for the sale or display of pornographic material nor for the operation of any pornographic business including massage parlors, adult theatres displaying pornographic pictures or films, adult book stores dealing in pornographic materials,” and it empowered PGI to enforce the covenants through an action in law or equity to restrain or enjoin such violation. For fifteen years, the Zbosniks operated a business on two floor levels of the store, Home Video. PGI was never aware that any pornographic materials were either sold or displayed on the premises on the lower level.

In April 2001, the Zbosniks sold Home Video'and M&S Zbosnik, Inc. to Inserection but retained the title to the property, which they leased to Inserection. In mid-May 2001, PGI learned through advertisement and other information from Inserection that Inserection intended to operate a pornographic business on the property, which would adversely affect all the development in violation of the restrictive covenant. On May 17, 2001, PGI delivered to Inserection a copy of the restrictive covenant and told it that the sale or display of pornographic materials on the property would be treated as a violation of the restrictive covenants. Despite the warning notice, one week later Inserection was operating a business involving the sale and display of pornography on the premises in violation of the restrictive covenant. On May 24, 2001, PGI gave written notice to the Zbosniks that legal action would follow to enforce the restrictive covenant. On June 8, 2001, PGI instituted this action to enforce the restrictive covenant. On June 8, 2001, a rule nisi issued for an interlocutory injunction evidentiary hearing to be held on June 15, 2001. On June 9, 2001, United Parcel Service delivered to Inserection a copy of the complaint, petition, motion, and rule nisi from PGI, and on June 8, 2001, PGI’s counsel talked to Inserection’s counsel informing him of the hearing and its purpose. At the hearing, counsel for Inserection admitted in judicio that it had seven days actual notice of the interlocutory injunction evidentiary hearing.

The Zbosniks understood the meaning of the restrictive covenant as to pornography when they entered into the covenant prohibiting the sale or display of pornography on the property. Unrated adult videos generally in the business were understood to be pornographic by the Zbosniks. Mrs. Zbosnik admitted that they sold pornography on the premises, and that it was of such an explicit nature to arouse sexual desires that she isolated it on the property and that the trial exhibits purchased on the property were in the Zbosniks’ understanding of what was pornographic at the time of purchase of the property. Thomas Wheeler, PGI Vice-President, executed the deed with the Zbosniks and testified what PGI considered pornographic at the time of sale of the property. At the hearing, he identified materials purchased on the property from Inserection as being pornographic within such prohibited restriction. Investigator Thomas Bartik, Gwinnett County Police Department, testified that the materials introduced at the hearing and identified by Wheeler had been for sale on display at the property and had been purchased and not seized. Such materials depicted on the box and/or in the films explicit sexual activity, i.e., lesbian cunnilingus, female masturbation with vaginal dildo insertion, anal intercourse, simultaneous anal and vaginal intercourse, fellatio, vaginal intercourse, sadomasochism, bondage, and sex toys.

1. Inserection asserts that the trial court erred in converting a temporary restraining order into an interlocutory injunction hearing. We do not agree.

On June 8, 2001, PGI sought an ex parte TRO from the trial court; however, the trial court denied the TRO and instead issued a rule nisi which stated,

[a] motion for Interlocutory Injunction having been filed by Plaintiff Partridge Greene, Inc. on June _, 2001, IT IS HEREBY ORDERED that all interested parties show cause before this Court on the 15th of June, 2001, at 2:00 o’clock p.m. why the prayers of the aforesaid Motion should not be granted, IT IS SO ORDERED this 8th day of June, 2001.

Thus, Inserection had actual notice that an interlocutory injunction hearing had been ordered by the trial court prior to the hearing date. The notice of hearing, pursuant to the rule nisi order, was for an interlocutory injunction and not a TRO. The denied TRO was not converted to an interlocutory injunction; however, the trial court gave notice that an evidentiary hearing to deal with an interlocutory injunction would be held. Thus, Inserection had seven days actual notice of the date, time, and purpose of the evidentiary hearing, seeking an interlocutory injunction, as it admitted in open court.

Uniform Superior Court Rule 6.2 provides that a respondent normally has 30 days within which to respond to a motion; however, the rule allows the trial court in its sound discretion to shorten this time by written order, issued as a rule nisi. A motion for interlocutory injunction or a TRO is an extraordinary motion, which is time sensitive, unlike other motions, because it seeks to preserve the status quo until a full hearing can be held to avoid irreparable harm. If a TRO is granted ex parte, then a hearing for interlocutory injunction must be held within 30 days or the TRO is dissolved as a matter of law. OCGA § 9-11-65 (b). There is nothing in either the Civil Practice Act or the USCR that prohibits a trial judge from setting an interlocutory injunction hearing in less than 30 days, because such motion is an extraordinary emergency procedure in law or in equity to protect rights from harm in an emergency created by the respondent. As a rule, interlocutory injunction hearings occur in less than 30 days where a TRO was denied to seek protection of the petitioner at the earliest opportunity, as in this case, and an interlocutory injunction hearing must occur within 30 days if a TRO was granted to maintain the injunction from being automatically dissolved in other cases. Therefore, in most cases, unless the parties agree, an interlocutory hearing occurs in less than 30 days from filing, and the respondent has a limited time to prepare for the hearing. Whatever such time is, such time is greater than the time for a respondent to prepare for a TRO.

In fact, the trial court can convert an interlocutory injunction hearing by consolidating it into a final trial on the merits where notice has been given of such intent and where urgency demands an immediate action. OCGA § 9-11-65 (a) (2); Kim v. State of Ga., 272 Ga. 343, 344 (528 SE2d 798) (2000) (with notice can consolidate interlocutory injunction with trial on the merits); Kirk v. Hasty, 239 Ga. 362, 365 (6) (236 SE2d 667) (1977) (statute authorizes but does not require consolidation of an interlocutory hearing with trial on the merits). Where the trial judge at the interlocutory hearing proceeds to consider the case on the merits and thereby consolidates the issues without objection from the parties, the parties waive any objection to such consolidation into a final hearing on the merits. Wilkerson v. Chattahoochee Parks, 244 Ga. 472, 473 (2) (260 SE2d 867) (1979). However, a consolidation of the interlocutory hearing into a final hearing cannot be done by the trial court without a written order over objection from the parties that they are not ready to proceed on the merits of the case. Brevard Fed. Sav. &c. Assn. v. Ford Mountain Investments, 261 Ga. 619, 620 (1) (409 SE2d 36) (1991) (issues for jury determination on the underlying contract dispute); Fontaine Condo. Assn. v. Schnacke, 230 Ga. App. 469, 470 (1) (496 SE2d 553) (1998) (TRO consolidated into final hearing on the merits over objection). This case was not a consolidated hearing on the merits but was an interlocutory injunction hearing pursuant to a rule nisi order so that such cases do not apply and the parties are entitled to a jury trial on the underlying restrictive covenant case.

While service of the complaint on Inserection occurred only one day prior to the hearing, Inserection had actual notice of the hearing, the complaint, and the issues for seven days by UPS delivery, which its counsel admitted in open court; service of process is not necessary for either a TRO or interlocutory injunction hearing, only notice. OCGA § 9-11-65 (b). Injunctive relief is intended to be swift, because the issues raised deal with urgency over threatened irreparable harm. To offset the shortness in preparation time, the law makes the grant of an interlocutory injunction difficult and requires the trial judge to balance the harm to the parties by balancing the equities. Garden Hills Civic Assn. v. MARTA, 273 Ga. 280, 281-282 (1) (539 SE2d 811) (2000). Further, a subsequent motion to clarify, modify, or vacate may be made to relieve a vague or abusive order, or an accelerated trial on the merits can be had. Thus, this enumeration lacks merit.

2. Inserection asserts that the trial court erred in not holding a hearing to first determine obscenity and without reviewing all the material in full in violation, of Art. I, Sec. I, Par. IV of the Georgia Constitution and Miller v. California, 413 U. S. 15 (93 SC 2607, 37 LE2d 419) (1973), prior to issuing an injunction prohibiting the sale of adult material as pornographic. We do not agree.

This is not a case of state action involving criminal law, which impacts on state or federal rights of speech or which involves the seizure of obscene material by the State. Instead, this case involves private contract right enforcement as set forth in restrictive covenants, which run with the land. In the transfer order rendered by the Supreme Court of Georgia, it stated, “ [i] t appearing that this case does not involve constitutional issues of free speech, but does involve the construction of a restrictive covenant, and it further appearing that any equitable relief sought is ancillary to the legal issues, this case is hereby returned to the Court of Appeals.” (Citations omitted.) M&S Zbosnik, Inc. v. Partridge Greene, Inc., Case No. S01M1521 (motion for reconsideration denied August 10, 2001). Since the Supreme Court of Georgia deems this case to involve only a matter of restrictive covenant interpretation, we find such portion of the enumeration of error without merit that raises constitutional issues.

Miller v. California, supra, involved the standard for determination of obscenity for criminal prosecution and seizure as contraband, which required a predetermination that material was obscene prior to seizure or criminal prosecution. In contrast, this case involves competent parties to a contract freely and knowingly entering into a restrictive covenant in which the grantees in consideration for the conveyance of property waived and surrendered whatever constitutional or other rights that they may have had to sell or display pornography or adult materials on the property and agreed that any violation was enforceable by a civil action in law or equity by injunction. Therefore, the body of law surrounding prosecution for obscenity is inapplicable. Thus, this enumeration lacks merit.

3. Inserection contends that the trial court committed error by issuing an injunction attempting to enforce a vague restrictive term and prohibited a much greater range of activity than is encompassed by the term “pornographic.” We do not agree.

For purposes of this restrictive covenant, all obscenity is pornography, but not all pornography is obscenity. Obscenity and pornography are not the same thing, although both deal with materials intended to cause sexual arousal in the viewer. Each has different standards. Therefore, the parties to the restrictive covenant in the warranty deed, i.e., Martin and Sheila Zbosnik as grantees and PGI as grantor, had the intent to give a broader meaning to “pornography” than used in the criminal law for “obscenity.” The parties intended to prohibit any sexual materials that were intended to arouse both normal sexual desires and prurient sexual desires by the use of the term pornography. Therefore, pornography for purposes of this restrictive covenant encompasses all things “obscene” as well as materials of a sexual nature that are intended to provoke only normal, healthy sexual desires, i.e., sex toys; depiction of genitalia or of an anus; anal, oral, or vaginal intercourse, whether actual or simulated as a heterosexual or homosexual act; or masturbation, whether heterosexual, homosexual, or autoerotic.

The parties to this restrictive covenant intended to include any “adult material” and any “adult entertainment” within the meaning of pornographic. The grantor and grantees all agreed that materials in evidence presented to the trial court came within their common understanding of “pornographic” at the time that the restrictive covenant was executed. Thus, the parties understood the meaning of pornography prior to entering into the restrictive covenant.

Pornography derives from the Greek (porne, harlot, and graphos, writing). The word now means 1: a description of prostitutes or prostitution 2: a depiction . . . designed to cause a sexual excitement. Webster’s Third New International Dictionary [(unabridged 1969)]. Pornographic material which is obscene forms a sub-group of all “obscene” expression, but not the whole, at least as the word “obscene” is now used in our language. We note, therefore, that the words “obscene material,” as used in this case, have a specific judicial meaning which derives from the Roth case, i.e., obscene material “which deals with sex.” Roth [v. United States, 354 U. S. 476, 494 (77 SC 1304,1 LE2d 1498) (1957)]. See also ALI Model Penal Code § 251.4 (1) “Obscene Defined.” (Official Draft 1962).

Miller v. California, supra at 20 (I), n. 2. Thus, pornography has a historic and clear meaning, i.e., any depiction that was intended or designed to arouse sexual desire. Therefore, pornographic was clearly meant by the parties as used in the restrictive covenant to include all materials that were intended to arouse a sexual desire or excitement whether considered normal or prurient. As such, the term “pornographic” was plain, clear, and certain.

4. Inserection contends that the trial court abused its discretion in not finding irreparable harm to PGI. We do not agree for several reasons, which reasons equally require affirmance.

(a) Land, under Geogia law, is deemed sufficiently unique that it is entitled to equitable remedies to protect such interest in land. Rife v. Corbett, 264 Ga. 871 (455 SE2d 581) (1995) (injunction to protect an easement); Benton v. Patel, 257 Ga. 669, 672 (1) (362 SE2d 217) (1987) (injunction to stop foreclosure); Black v. American Vending Co., 239 Ga. 632, 634 (2) (238 SE2d 420) (1977) (“the law regards as sufficiently unique that equity will enforce a contract for [land] sale or lease”); Clark v. Cagle, 141 Ga. 703, 705-706 (1) (82 SE 21) (1914) (specific performance of contract to sell land). Therefore, when an interest in land is threatened with harm, equitable injunctive relief is appropriate, because such harm is deemed to be irreparable to the unique character of the property interest, i.e., money damages are not adequate compensation to protect the interest harmed. See generally Central of Ga. R. Co. v. Americus Constr. Co., 133 Ga. 392, 398 (65 SE 855) (1909) (irreparable injury defined to enjoin a nuisance); see also Roth v. Connor, 235 Ga. App. 866, 868-869 (1) (510 SE2d 550) (1998) (property interests of grantor and others in restrictive covenants for their benefit).

Where a grantor creates a restrictive covenant as a burden that runs with the land and conveys away such property while retaining other property, such restrictive covenants protect the grantor, PGI, and any other property owners who took from the grantor property affected by the restrictive covenants. Roth v. Connor, supra at 868-869. Thus, the violation of a restrictive covenant that is part of the development scheme affects the grantor and all other grantees, causing irreparable harm to the value of their respective property interests, because such restrictive covenant was part of the valuable contract consideration given and relied upon in the conveyance of land. Id. Thus, irreparable harm automatically occurs as a matter of law arising from a violation of a covenant running with the land, the relationship of the parties as grantor-grantee, and the consideration of the conveyance of less than a fee simple absolute for the burden imposed upon the land in the form of a restrictive covenant to protect the grantor and others who may wish to purchase the remaining land in the future. Smith v. Pindar Real Estate Co., 187 Ga. 229, 235 (1) (200 SE 131) (1938) (restrictive covenant violation does not require proof of damages for enforcement). Thus, no special showing of irreparable harm is necessary other than the violation of a valid restrictive covenant.

Equity will interpose by injunction to prevent the breach of negative covenants annexed to deeds or leases. . . . The reason is that the owner of land, selling or leasing it, may insist upon just such covenants as he pleases, touching the use and mode of enjoyment of the land. He has a right to define the injury for himself, and the party contracting with him must abide by the definition.

(Citation and punctuation omitted.) Id.

(b) The trial court may issue an interlocutory injunction to maintain the status quo until there is a final hearing on the merits if, “by balancing the relative equities of the parties, it would appear that the equities favor the party seeking the injunction. Thus, a demonstration of irreparable injury is not an absolute prerequisite to interlocutory injunctive relief.” (Citations and punctuation omitted.) Parker v. Clary Lakes Recreation Assn., 272 Ga. 44, 45 (526 SE2d 838) (2000) (enjoin the change in bylaws of a civic association); see also Jackson v. Delk, 257 Ga. 541, 543-544 (4) (361 SE2d 370) (1987) (violation of zoning ordinance).

(c) The Supreme Court has ordered in this case that “any equitable relief sought is merely ancillary to the legal issues.” “Thus, the transfer of the interlocutory application in this case to the Court of Appeals pursuant to Pittman [v. Harbin Clinic Professional Assn., 263 Ga. 66 (428 SE2d 328) (1993),] was simply a binding determination that it is not an ‘equity’ case within [the Supreme Court’s] general appellate jurisdiction, even though it clearly does involve the grant of equitable relief in the form of an injunction.” Saxton v. Coastal Dialysis &c., 267 Ga. 177, 179 (476 SE2d 587) (1996). Therefore, this case is a law case rather than an equity case with ancillary equitable relief. Redfearn v. Huntcliff Homes Assn., 271 Ga. 745, 747 (2) (524 SE2d 464) (1999); accord Pittman v. Harbin Clinic Professional Assn., supra; Beauchamp v. Knight, 261 Ga. 608 (409 SE2d 208) (1991).

An interlocutory injunction is a proper legal remedy to enforce a restrictive covenant until there can be a final adjudication on the merits as to the validity, construction, and violation of a restrictive covenant. Chambers v. Gallaher, 257 Ga. 795, 796 (364 SE2d 576) (1988); Corp. &c. of Latter-Day Saints v. Statham, 243 Ga. 448, 449 (254 SE2d 833) (1979). “[A]n injunction will lie in restrictive covenant cases even where damages are also sought.” Saxton v. Coastal Dialysis &c., 220 Ga. App. 805, 809 (3) (470 SE2d 252) (1996), rev’d on other grounds, 267 Ga. 177, supra; see also Nat. Settlement Assoc. &c. v. Creel, 256 Ga. 329, 332 (4) (349 SE2d 177) (1986). In this case, the restrictive covenant granted PGI the legal right to enforce the restrictive covenant at law or equity by injunction; therefore, the parties are bound by the form of relief that they agreed to employ to protect süch right, i.e., injunction. Law v. Lowe, 191 Ga. App. 434, 435 (3) (382 SE2d 118) (1989). Therefore, having agreed to the method by which the restrictive covenant would be enforced when violated, the grantees and their successors in title have waived the necessity of proving any independent irreparable harm to the grantor other than the violation of the restrictive covenant by the grantees or their successors in title.

Decided December 19, 2001.

Begner & Begner, Alan I. Begner, Cory G. Begner, Perrotta & Associates, Michael A. Prieto, for appellants.

Alston & Bird, T. Michael Tennant, Elizabeth Bertschi, Daniel N. Esrey, for appellee.

The trial judge has broad discretion in granting or continuing an injunction, which an appellate court will not disturb, absent a manifest abuse of discretion. Glen Oak, Inc. v. Henderson, 258 Ga. 455, 456 (1) (a) (369 SE2d 736) (1988) (enjoin collection of a judgment); Sea Island Bank v. First Bulloch Bank &c. Co., 245 Ga. 715, 716 (1) (267 SE2d 12) (1980) (enforcement by injunction of a restrictive covenant). The record does not indicate that there exists an abuse of discretion by the trial court.

Judgment affirmed.

Miller, J., concurs. Andrews, P. J., concurs in judgment only.

       Inserection relies upon Penthouse Intl. v. McAuliffe, 436 FSupp. 1241 (N.D. Ga. 1977), aff’d in part and rev’d in part, 610 F2d 1353 (5th Cir. Ga. 1980), a declaratory judgment action based upon First and Fourteenth Amendment rights of speech regarding criminal prosecution under the Georgia obscenity statute and requiring a judicial determination of obscenity prior to issuing an arrest warrant to avoid unconstitutional prior restraint; and on Gable v. Jenkins, 309 FSupp. 998 (N.D. Ga. 1969), dealing with criminal prosecution for obscenity and requiring a prior adversary judicial determination of obscenity prior to seizure as contraband. Neither case is applicable under the facts of this case where private parties seek to enforce contract rights and where the grantees knowingly and willingly waived and surrendered any constitutional or property rights to sell or display pornography on the property in the future in return for the coveyance of a valuable commercial business location adjacent to Gwinnett Place Mall. Thus, as a restrictive covenant enforcement action only, Georgia civil law is applicable.

        Brockett v. Spokane Arcades, 472 U. S. 491 (105 SC 2794, 86 LE2d 394) (1985), held that materials which aroused a normal sexual response or desire were not obscene. However, for purposes of this restrictive covenant, pornography and obscenity are not the same thing. As a matter of contract right, the parties to the restrictive covenant were free to agree to prohibit from the property what was not obscene but merely pornographic, i.e., explicit adult sexual material that was intended to arouse a healthy sexual response or desire. Id.


author: Miller, Judge.

text:
    A01A1914.
    ANDERSON v. THE STATE.
    (558 SE2d 459)
   Miller, Judge.

Harry Anderson appeals from his convictions on four counts of selling cocaine, contending that the evidence was insufficient. We disagree and affirm.

Viewed in the light most favorable to the jury’s verdict, the record shows that twice on June 27 and once each on July 7 and 8, 1998, a paid, professional confidential informant recorded, by means of an “undercover” videocamera in his car, purchases of cocaine from an individual later identified as Anderson. The videotapes were shown to the jury, in the process of which the informant identified Anderson each time he appeared.

During the playing of the first (i.e., June 27) tape, the informant testified, with respect to the first transaction with Anderson that day, that what the jury was seeing was Anderson approaching him, the informant asking Anderson for drugs and giving him $10, and Anderson giving the informant “a white piece of suspected crack cocaine” and then going “back” and giving the money to the person from whom he received the cocaine. The informant testified with respect to the second transaction that “[n]ow [Anderson is] handing me the piece of suspected crack cocaine.” Both before and after the showing of the tapes, the informant identified Anderson in court. Anderson presented no evidence, but during pro se closing argument he admitted that “[t]he tape shows that I was at the car.”

As we recently stated in Dunn v. State

We evaluate [defendant’s] challenge to the sufficiency of the evidence under the standard of Jackson v. Virginia , construing the evidence in the light most favorable to the verdict. We do not weigh the evidence or determine the credibility of the witnesses. As long as some competent evidence, even though contradicted, supports each element of the State’s case, we must affirm the judgment on the jury’s verdict.

The elements of the offense of “sale of cocaine” (as it was stated in the indictment herein) are simply (1) sale of (2) a controlled substance. Cocaine is a controlled substance, and the only issue Anderson argues on appeal is that the State “failed to establish the Appellant was indeed the individual who sold crack cocaine to [the informant].” The jury, however, viewed the videotapes; the informant testified, with respect to the first transaction on the first tape, that the tape showed him giving Anderson $10 and Anderson giving him “suspected crack cocaine”; the informant identified Anderson in court as the individual on the tape; and Anderson admitted during closing argument that he appeared on the tape. Accordingly, there being competent evidence to support the element that Anderson was the individual who sold the cocaine in the first of the June 27 transactions, we must affirm the judgment on this count.

Decided December 20, 2001.

John W. Sherrer, Jr., for appellant.

Harry Anderson, pro se.

Denise D. Fachini, District Attorney, Cheri L. Nichols, Assistant District Attorney, for appellee.

The informant also testified he purchased cocaine from Anderson on three additional occasions. Having viewed the videotapes showing the sales of cocaine, we also affirm with respect to the other three counts of sale of cocaine. The tapes clearly show four sales by the same person.

Judgment affirmed.

Andrews, P. J., and Eldridge, J., concur.

        Hargroves v. State, 179 Ga. 722, 725 (4) (177 SE 561) (1934) (“The prisoner’s admission in open court, made as a part of his statement on the trial, may be treated by the jury as direct evidence as to the facts.”) (citation omitted).

       248 Ga. App. 223, 224 (546 SE2d 27) (2001).

       443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

       (Footnotes omitted; emphasis supplied.) Id.

       OCGA § 16-13-30 (b).

       OCGA §§ 16-13-21 (4); 16-13-26 (1) (D).

        Dunn, supra, 248 Ga. App. at 224.


text:
    A01A2404.
    SMITH v. THE STATE.
    (558 SE2d 455)
   Miller, Judge.

After obtaining the driver’s consent to search his vehicle, an officer found 40 grams of cocaine under the passenger seat on which defendant had been sitting. The driver testified that when the officer activated his blue lights, the driver pulled the cocaine out of his pocket and tried to get the defendant to take it, and that when the defendant refused, the driver placed the drugs in the console between the seats. The question on appeal is whether this evidence established a prima facie case of defendant’s participation in a conspiracy to traffic in cocaine so as to allow into evidence hearsay statements of a co-conspirator. Since the defendant was the only one who had the opportunity to move the cocaine from the console to under his seat, we hold that evidence showed defendant’s participation in the conspiracy and thus the court properly admitted the statements.

Construed in favor of the verdict, the evidence showed that an officer, informed that a vehicle was possibly carrying drugs, stopped that vehicle for speeding. The officer and the driver spoke for a few minutes in the officer’s patrol car, and the driver consented to a search of his vehicle. The officer then removed the passenger, Jessie B. Smith, from the front passenger seat and found 40 grams of cocaine under that seat. Claiming that the substance first had to be tested before any arrests were made, the officer allowed Smith and the driver to leave in the vehicle. They drove to the residence of Smith’s nephew.

Police monitoring the phone calls of the nephew taped three conversations that took place within the next hour and a half. In the first, the driver announced to the nephew that the police “got me and Jessie B. [Smith]” and that the police took the drugs. In the second, the nephew told another person that the driver gave the drugs to Smith to put them in his pocket and that Smith did so but then slipped them out of his pocket and hid them under the seat. In the third, the nephew told yet another person that (1) he sold $3,000 in cocaine to the driver that day, whereupon Smith and the driver drove off together, (2) Smith told the driver to slow down to avoid apprehension since drugs were in the car, (3) when the officer stopped the vehicle, the driver gave the drugs to Smith, who feigned placing them in his pocket but who actually slipped them under the seat, and (4) Smith reaffirmed to the nephew his earlier opinion that the driver was a police informant.

The nephew and the driver pled guilty to conspiring to traffic in cocaine. The State charged Smith with trafficking in cocaine and with conspiring to traffic in cocaine. Smith moved to suppress the tapes of the nephew’s statements, which motion the court denied when it found that an ongoing conspiracy was shown from evidence independent of the statements and that the statements met the indicia of reliability. The court twice reaffirmed its ruling when Smith repeatedly raised the issue during trial. As part of his case, Smith called the driver as a witness, who testified that the drugs were his and that when the officer activated his blue lights, he tried to give the drugs to Smith, who refused. He then placed them in the console that was between the seats. He could not explain how the drugs got under the passenger seat.

The jury acquitted Smith of the trafficking charge but found him guilty of the conspiracy to traffic charge. Smith appeals, contending that the evidence was insufficient, that the court erred in admitting the nephew’s statements, and that the court failed to charge the jury that they had to find Smith was involved in the conspiracy before they could consider the nephew’s statements. Discerning no error, we affirm.

1. To sustain a criminal conviction, the evidence as construed in favor of the verdict must be sufficient to authorize the jury’s finding of the defendant’s guilt of the crime charged beyond a reasonable doubt. Conspiracy to traffic in cocaine requires evidence that Smith conspired with others to knowingly possess twenty-eight grams or more of cocaine and that one of the conspirators took an overt act to this end. Smith concedes that ample evidence established such a conspiracy between his nephew and the driver; however, he contends that no evidence established his participation in the conspiracy.

We disagree. While mere presence at a crime scene is alone insufficient to convict one of being a party to a crime, one’s presence, companionship, and conduct before, during, and after the commission of the crime are factors, even if only circumstantial, that the jury may consider in determining whether defendant participated in a conspiracy to commit the crime. A conspiracy is in progress until the ultimate object is accomplished, including efforts to conceal the crime and the identity of the perpetrators. Furthermore, statements made by a conspirator during the course of the conspiracy are admissible against all conspirators after the conspiracy is proved.

Here the evidence was ample to allow the jury to infer that Smith knowingly participated in the conspiracy. After the driver picked up the cocaine from Smith’s nephew, Smith told him to drive slower to avoid apprehension. When the officer activated his blue lights, the driver tried to give the drugs to Smith, who refused. The driver then placed the drugs in the console between the seats. Smith waited in the vehicle while the officer spoke with the driver in his patrol car. When the officer then searched the vehicle, he found the drugs under Smith’s seat, which allowed the inference that Smith removed them from the console and placed them under the seat for purposes of concealment. Other statements made by the nephew allowed the alternate inference that Smith willingly took the drugs from the driver and discreetly placed them under the seat for concealment. In either case, the evidence sufficed to exclude reasonable hypotheses of innocence and showed that Smith tacitly agreed to participate in the conspiracy to knowingly possess more than 28 grams of cocaine.

Smith claims that his acquittal on the trafficking count showed that he did not jointly possess the cocaine and thus precluded a guilty verdict on the conspiracy to traffic count. Since Milam v. State abolished the inconsistent verdict rule in 1986, however, criminal defendants may not attack as inconsistent a jury verdict of guilty on one count and not guilty on another count. This argument fails.

2. Citing two reasons, Smith contends that the court erred in admitting the nephew’s statements. Smith first argues that before introducing the statements, the State failed to prove, via evidence independent of the statements, that Smith was a willing participant in a conspiracy to traffic cocaine. He also argues that the statements did not meet the four indicia of reliability set forth in Copeland v. State.

(a) Independent Evidence of Conspiracy. It is true that a co-conspirator’s statements are admissible only if the defendant’s participation in the conspiracy, from evidence independent of the statements, is proved. It is not necessary that such independent evidence come in prior to the admission of the statements, but only that it come in at some point during the trial.

Here the independent evidence came from the driver, who testified during Smith’s portion of the trial that he obtained the cocaine from Smith’s nephew. When the officer activated his blue lights, the driver asked Smith to hold the cocaine, which he refused. The driver placed the cocaine in the console and spoke with the officer in his patrol car. The officer then removed Smith from the vehicle and found the cocaine under Smith’s seat. As noted by the trial court, the inference arises that Smith took the cocaine from the console and placed it under his seat to conceal it. This independent evidence — the inference plus Smith’s uncle-nephew relationship with the cocaine supplier — combines to establish a prima facie case that Smith was a willing participant in the conspiracy to traffic.

(b) Four Indicia of Reliability. Before admitting co-conspirator statements made during the concealment phase, the trial court must evaluate their reliability as reflected in four indicia of reliability:

(1) the absence of an express assertion about a past fact; (2) the declarant had personal knowledge of the identity and roles of the participants in the crime and cross-examination of the declarant would not have shown that the declarant was unlikely to know whether the defendant was involved in the crime; (3) the possibility that the declarant’s statement was founded on faulty recollection was remote; and (4) the circumstances under which the declarant gave the statement suggest that the declarant did not misrepresent the defendant’s involvement in the crime.

Decided December 20, 2001.

John T. Strauss, for appellant.

W. Kendall Wynne, Jr., District Attorney, for appellee.

The statements here are express assertions about past facts, and thus the first factor weighs against reliability. The other three, however, all weigh in favor of reliability and thus, as in Copeland v. State, allowed the trial court to admit the statements. The nephew as apparent head of the organization had personal knowledge of the participants’ roles in the crime, and cross-examination would not have shown differently in that the nephew admitted to his own participation; the conversations took place within one and one-half hours of the crime; and the nephew’s statements were strongly against his penal interest in that he admitted his own role in the crime.

3. Smith asserts that the trial court failed to instruct the jury that it must first find defendant’s participation in the conspiracy was proved before it could consider the co-conspirator’s statements. The record belies this assertion, as the court gave verbatim the relevant instruction requested by Smith, which instruction set forth this point. This enumeration fails.

Judgment affirmed.

Andrews, P. J, and Eldridge, J., concur.

        Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Woods v. State, 244 Ga. App. 359 (535 SE2d 524) (2000).

       OCGA §§ 16-4-8; 16-13-31 (a) (1).

        Okongwu v. State, 220 Ga. App. 59, 60-61 (1) (467 SE2d 368) (1996).

        Avery v. State, 269 Ga. 584, 585 (2) (502 SE2d 230) (1998).

       Id.; see OCGA § 24-3-5.

       Cf. OCGA § 24-4-6.

       See Avery, supra, 269 Ga. at 585 (2); Okongwu, supra, 220 Ga. App. at 61 (1).

       255 Ga. 560, 562 (2) (341 SE2d 216) (1986).

        Kolokouris v. State, 271 Ga. 597, 598 (2) (523 SE2d 311) (1999); see Givens v. State, 273 Ga. 818, 820 (1) (546 SE2d 509) (2001).

       See OCGA § 24-3-5; Bragg v. State, 52 Ga. App. 69 (1) (182 SE 403) (1935).

       266 Ga. 664, 665 (2) (b) (469 SE2d 672) (1996).

       See Gilstrap v. State, 162 Ga. App. 841, 846-847 (10) (292 SE2d 495) (1982).

       Id. at 847 (10); see Isaac v. State, 269 Ga. 875, 878 (6) (505 SE2d 480) (1998); Blue v. State, 212 Ga. App. 847, 849 (3) (443 SE2d 635) (1994).

        See Robinson v. State, 175 Ga. App. 769, 772 (2) (334 SE2d 358) (1985) (uncle-nephew relationship; “where transactions involving relatives are under review slight circumstances are often sufficient to induce a belief that there was collusion between the parties”) (citations and punctuation omitted); see also Lang v. State, 171 Ga. App. 368, 370 (2) (320 SE2d 185) (1984).

        Copeland, supra, 266 Ga. at 665 (2) (b), citing Dutton v. Evans, 400 U. S. 74, 88-89 (91 SC 210, 27 LE2d 213) (1970) (plurality opinion).

        Copeland, supra, 266 Ga. at 665 (2) (b).

       Id. at 665-666 (2) (b).

       See id.


text:
    A01A1882.
    SCRUGGS v. THE STATE.
    (558 SE2d 731)
   Miller, Judge.

Barry Scruggs was convicted of theft by receiving a motor vehicle. On appeal he contends that the trial court erred by (1) admitting into evidence a prior conviction for possession of drugs with intent to distribute, and (2) failing to limit the scope of the State’s cross-examination of him about the prior drug conviction. We discern no error and affirm.

Viewed in the light most favorable to the verdict, the evidence reveals that on November 7, 2000, Scruggs asked Dorsel Frady if he could borrow Frady’s truck. Frady agreed only to allow Scruggs to drive the truck up to the top of a hill so that Scruggs could receive a better signal for his cell phone. When Scruggs left and did not return with the truck, Frady reported the car as stolen to the police.

On November 10, an officer received a message from dispatch about the possible location of the stolen vehicle and went to the location to investigate. When the officer observed Scruggs and a companion sitting in the truck, he confronted them and arrested Scruggs.

At trial Scruggs testified that Frady had given him permission to drive the truck so that he could buy methamphetamine for Frady. Although Scruggs initially testified that he had sold drugs to Frady in the past and that he intended to supply Frady with drugs on the night that he borrowed the truck, he later denied that he was a drug dealer and further denied that he had ever possessed drugs with an intent to distribute them. Scruggs also denied that he had ever had any prior dealings with the police officer who arrested him for stealing Frady’s truck.

On cross-examination the State introduced a certified copy of a bill of indictment against Scruggs for possession of amphetamine with the intent to distribute. Scruggs had pled guilty to the charge. The trial court allowed this indictment into evidence over objection. The State asked Scruggs questions about the details of the indictment and about the witnesses against him in the drug case, without any additional objection from Scruggs’s counsel. Scruggs then admitted that he had possessed drugs with the intent to distribute in the past and also admitted that the police officer who arrested him for stealing Frady’s truck was the same police officer who was a witness against him in his prior drug case.

1. Admission of evidence is a matter committed to the sound discretion of the trial court, and the trial court’s evidentiary decisions will not be disturbed on appeal absent an abuse of discretion. Scruggs argues that the trial court abused its discretion by allowing the State to introduce evidence of his prior drug conviction. He contends that this evidence went to his character and could not be used to impeach him since the conviction involved a collateral matter. We discern no abuse of discretion here.

Decided December 26, 2001.

Evidence of a prior conviction is generally inadmissible unless a defendant first places his character in issue. However, a witness may be impeached by disproving facts to which he has testified. Even evidence that would be inadmissible if offered to impeach the defendant’s character may be admissible to impeach the veracity of a witness. Moreover, while a witness may not be impeached on a wholly immaterial matter, he may be impeached on collateral issues that are indirectly material to the issues involved in the case.

Scruggs himself testified during his direct examination that the purpose of borrowing Frady’s truck was to obtain drugs. He also admitted that he had sold drugs to Frady in the past. He then denied during cross-examination that he was a drug dealer and that he had ever possessed drugs with the intent to distribute them. He also denied having any prior dealings with the police officer who arrested him for stealing Frady’s truck. The State was authorized to challenge the veracity of these statements, especially considering that Scruggs opened the door for such challenges based on his testimony that drugs were directly related to the purpose for which he took the truck. Although the prior conviction may have reflected poorly on Scruggs’s character, “the line of questioning which opened the door to admission of this evidence was first introduced on direct examination of the defense witness.” We find no abuse of discretion here.

2. Scruggs further contends that even if the evidence of his prior drug conviction were properly admitted, the trial court erred by failing to limit the scope of the State’s cross-examination of him on this prior conviction. Since Scruggs failed to make any objection during the cross-examination at the trial court level, the issue was not properly preserved for appeal.

Judgment affirmed.

Andrews, P. J, and Eldridge, J., concur.

Philip C. Smith, District Attorney, Rand J. Csehy, Assistant District Attorney, for appellee.

        Bradford, v. State, 221 Ga. App. 232, 234 (2) (471 SE2d 248) (1996).

       OCGA § 24-9-20 (b).

        Sanders v. State, 199 Ga. App. 671, 672-673 (3) (405 SE2d 727) (1991); see Thrasher v. State, 243 Ga. App. 702, 703 (534 SE2d 439) (2000).

        Krebsbach v. State, 209 Ga. App. 474 (1) (433 SE2d 649) (1993).

       Id.

       (Citation omitted.) Id. at 475 (1).

       See Pye v. State, 269 Ga. 779, 787 (14) (505 SE2d 4) (1998).


text:
    A01A2513.
    MELLIES v. DEARBORN et al.
    (558 SE2d 460)
   Miller, Judge.

Having cared for their three-year-old grandson from birth, Kathy and Donald Dearborn successfully petitioned to adopt him on the grounds that his mother for over a year failed to provide for the child and that adoption was in the boy’s best interest. We affirm, holding that evidence showing that the mother for over a year paid no money for the boy’s support and that the Dearborns provided the loving care for the boy sustains the judgment.

Even though the birth mother may object, OCGA § 19-8-10 (b) (2) authorizes a court to grant an adoption petition if (i) the birth mother, for a period of one year or longer immediately prior to the filing of the adoption petition, has without justifiable cause significantly failed to provide for the care and support of the child as required by law, and (ii) the court finds that adoption is in the best interest of the child. Since the mother challenges the sufficiency of the evidence, we address both factors.

1. Regarding the first factor, evidence construed in favor of the judgment showed that upon the boy’s birth, the mother brought him to the Dearborns for care and support, where she then also resided. The Dearborns provided the primary care for the child. After some months, the mother for a few weeks attempted to live elsewhere with the child, only to eventually bring him back to the Dearborns when she decided she could not handle him anymore. The mother continued living separately, visiting the boy a few times a week, and over the next three years she took the child overnight a total of five times. Even when she visited, the mother often asked the Dearborns to feed, change, and bathe the child. She never asked for custody of the child.

Over these three years the mother paid a total of $70 to the Dearborns for the support of the child. During the year immediately prior to the filing of the adoption petition, she paid nothing.

Even though no judicial decree required the mother to pay child support, by law she was required to provide for the maintenance, protection, and education of her child. Failure to meet this support obligation for a year prior to the adoption petition authorizes the court to find that this first factor weighs in favor of adoption. Indeed, evidence of no child support payments during that year, while the child is cared for by others, may provide a clear and convincing showing of the first factor.

The mother contends that she offered money at times but was politely refused. Even assuming this to be true, we note that evidence showed this did not take place during the year just before the petition was filed. Moreover, despite these polite refusals, the mother was nevertheless obligated to support the child financially.

Citing Howell v. Gossett and Rawdin v. Conner, the mother next argues that mere failure to provide support while the child is in the custody of another does not support a finding of abandonment. Abandonment, however, is not the issue. Rather, as provided in the adoption statute that was comprehensively changed since the two cited cases, the issue is whether the parent without justification has failed to provide legally required support of the child during the year prior to the filing of the adoption petition.

2. The second factor is whether the adoption is for the best interest of the child. “If there is any evidence to support the trial court’s finding that the adoption is in the child’s best interest, such finding will be affirmed.” Indeed, in this area the court has “very broad discretion.”

Here ample evidence showed that adoption was in the boy’s best interest. Since he could first talk, the boy has called the Dearborns “mama” and “daddy”; excepting a few weeks, the Dearborns have bathed, clothed, sheltered, fed, nurtured, loved, and cared for the boy since his birth more than three years ago; the boy is very happy in their care and becomes upset when the mother takes him away on visits; and he has become so bonded to the Dearborns that removing him from their home would seriously harm him. As evidence supported the court’s finding regarding the child’s best interest, we discern no abuse of discretion.

Judgment affirmed.

Andrews, P. J., and Eldridge, J., concur.

Decided December 26, 2001

Adams, Ellard & Frankum, Jennifer L. Thacker, for appellant.

English, Tunkle & Smith, Richard D. Tunkle, for appellees.

       OCGA § 19-7-2; Pacella v. Sanchez, 191 Ga. App. 611, 612-613 (382 SE2d 371) (1989).

       See Pacella, supra, 191 Ga. App. at 612-613.

        Curde v. Matson, 190 Ga. App. 782, 784 (2) (380 SE2d 71) (1989).

       See Hix v. Patton, 147 Ga. App. 14, 15 (248 SE2d 28) (1978).

       234 Ga. 145, 147 (214 SE2d 882) (1975).

       210 Ga. 508, 512 (3) (81 SE2d 461) (1954).

       See Ga. L. 1977, pp. 201, 211; Ga. L. 1990, pp. 1572, 1579, 1589-1590, § 5; compare former Code Ann. § 74-403 (2) (1974).

       OCGA § 19-8-10 (b) (2).

       OCGA § 19-8-10 (b).

       (Citations omitted.) Bateman v. Futch, 232 Ga. App. 271, 274 (2) (501 SE2d 615) (1998).

       (Citation and punctuation omitted.) Id.