text:
    A00A2109.
    EGGLESTON v. THE STATE.
    (544 SE2d 722)
   Blackburn, Chief Judge.

Rashad Eggleston was convicted of aggravated sexual battery and five separate counts of child molestation involving an eleven-year-old girl and was acquitted of raping her. In this appeal, Eggleston contends that the trial court erred by admitting evidence of his prior conviction for public indecency and by refusing to merge the five counts of child molestation. He also asserts that the trial court erred in finding that his trial counsel did not render ineffective assistance. For the reasons discussed below, we affirm.

On appeal, the evidence must be viewed in a light most favorable to the verdict. Pollard v. State. When so construed, the evidence established that Eggleston, then age 20, met the victim at a movie theater and inquired as to whether she was sexually active, which she denied. On the day of the crimes, the victim mistakenly believed that Eggleston and his friend, Khalif Thompson, were giving her and her friend, Alice, a ride to a party. Instead, the girls were taken to an apartment. While there, when the victim refused to accompany Eggleston to the back of the apartment, he picked her up, carried her to a bedroom, and shut the door. When Eggleston suggested that they “do something,” the victim declined and told him she wanted to go home. Eggleston then pushed her down onto a bed and tried to get on top of her. She testified that she tried “with all my might” to push him off of her, but could not. Eggleston pulled her panties down and her shirt up and removed his own clothes. He fondled her breasts, forced his penis into her vagina, and told her to rub his chest. After withdrawing his penis, he “played with himself” for awhile in her presence. He also inserted his finger inside her vagina and forced her to rub his penis repeatedly. Afterward, he warned her not to tell anyone because he “could get in serious trouble.”

About two weeks later, the victim told her mother what had happened and identified Eggleston as the perpetrator. The victim’s family called police, and Eggleston was arrested.

1. Eggleston contends that the trial court erred in admitting as similar transaction evidence his prior conviction for public indecency. He claims that the prior crime lacked sufficient similarity and that its admission violated his right to a fair trial.

Absent an abuse of discretion, a trial court’s ruling as to the admissibility of similar transaction evidence will not be disturbed. Condra v. State. Further, “[i]n crimes involving sexual offenses, evidence of similar previous transactions is admissible to show the lustful disposition of the defendant and to corroborate the victim’s testimony.” (Punctuation omitted.) Gibbins v. State. “The exception to the general rule that evidence of independent crimes is inadmissible has been most liberally extended in the area of sexual offenses.” (Punctuation omitted.) Livery v. State Such evidence is admissible to illustrate a defendant’s lustful disposition and to corroborate the testimony of the victim as to the acts charged. Tucker v. State. 6Notwithstanding this exception, the State must still make three affirmative showings: a proper purpose for the use of the evidence, sufficient proof that the defendant did, in fact, commit the independent act, and sufficient similarity or connection between the two incidents so that proof of the former tends to prove the latter. Williams v. State Eggleston focuses only on the first and third affirmative showings.

The earlier incident occurred when Eggleston exposed himself to an employee at his apartment complex. The worker testified that Eggleston had gone outside to his patio, lowered his pants, exposed himself to her and a co-worker, then fondled his penis. The co-worker confirmed her colleague’s account and testified that Eggleston had also exposed himself to her two other times. A certified copy of Eggleston’s conviction was entered in evidence.

The State offered this evidence to show Eggleston’s bent of mind and lustful disposition, and the trial court expressly found the evidence was being offered for a legitimate purpose. By exposing himself and touching his penis in the presence of a female, such conduct bore striking similarity to how the victim here described Eggleston’s behavior as he exposed himself to her. Because the State fulfilled the requirements of Williams, the trial court did not abuse its discretion in admitting evidence about the prior incident. See Jordan v. State.

Eggleston argues that under Simpson v. State, the similar transaction evidence was inadmissible. But Simpson is factually and legally distinguishable. In Simpson, unlike here, the Supreme Court addressed the admission of physical evidence of a sexual nature, such as writings, drawings, or paraphernalia. The Court then crafted this bright line rule:

In a prosecution for a sexual offense, evidence of sexual paraphernalia found in defendant’s possession is inadmissible unless it shows defendant’s lustful disposition toward the sexual activity with which he is charged or his bent of mind to engage in that activity. Under this rule, sexually explicit material cannot be introduced merely to show a defendant’s interest in sexual activity. It can only be admitted if it can be linked to the crime charged.

Simpson v. State, supra at 774. But here, the admission of sexually explicit material was not at issue.

2. Eggleston alleges that he received ineffective assistance of counsel and was thereby deprived of his right to a fair trial.

To establish ineffective assistance of counsel within the meaning of Strickland v. Washington, an appellant must show not only that his trial counsel’s performance was deficient, but also that the deficient performance prejudiced him. Rucker v. State. Failure to satisfy either prong of the Strickland standard is fatal to an ineffectiveness claim. Brewer v. State. Absent a showing of prejudice, no inquiry need be made into counsel’s alleged deficiencies. Ortiz v. State In addition, a defendant must overcome the strong presumption that trial counsel’s conduct fell within the wide range of reasonable professional conduct. See id.

Eggleston faults his trial counsel for failing to present character witnesses on his behalf, neglecting to investigate adequately the possibility that the victim had made false accusations in the past, and not investigating the victim’s possible involvement with another male. He also complains that his attorney did not effectively cross-examine medical testimony, and he criticizes counsel’s decision not to hire a defense expert to review the videotaped interview of the victim by a social worker or to subpoena this social worker.

At the motion for new trial hearing, Eggleston’s trial counsel testified that he had never heard about any false accusation. He also testified that no names of possible character witnesses had been provided to him. Although informed by his investigator about the existence of a ninth-grade boy observed kissing the victim at a birthday party, counsel admitted that he did not pursue this issue. However, evidence of the past sexual behavior of the complaining victim is generally disallowed by the rape shield statute. OCGA § 24-2-3 (a); McGarity v. State. Trial counsel explained that he had opted not to retain an expert to critique the videotape because he felt the tape helped the defense. Because Eggleston has not established that his trial counsel’s performance was so deficient as to have prejudiced his defense, we cannot say that the trial court clearly erred in finding otherwise. See Johnson v. State.

3. We reject Eggleston’s contention that the five separate counts of child molestation should have been merged at sentencing.

Counts 3 through 7 of the indictment accused Eggleston of engaging in various distinct acts of child molestation. The different counts alleged that Eggleston “with intent to arouse and satisfy [his] sexual desires”: (Count 3) “placed his penis on the vaginal area of [the victim]”; (Count 4) “pulled down the pants and underwear of [the victim]”; (Count 5) “placed his hand and fingers on the breast of [the victim]”; (Count 6) “placed his mouth on the breast of [the victim]”; and (Count 7) “forced [the victim] to touch the penis of said accused.” The evidence supporting any one count was not “used up” in proving any other count. See Welch v. State. Instead, the testimony of the victim established that each of these counts was a separate and distinct crime. Gable v. State. The same conduct was not being punished twice, nor was one crime included in the others so as to bar the separate conviction and punishment for each act. See id. Therefore, these offenses did not merge.

Decided January 11, 2001

Lawrence J. Zimmerman, for appellant.

J. Tom Morgan, District Attorney, Charles C. Flinn, Robert M. Coker, Assistant District Attorneys, for appellee.

Judgment affirmed.

Eldridge and Barnes, JJ, concur.

        Pollard v. State, 230 Ga. App. 159 (495 SE2d 629) (1998).

        Condra v. State, 238 Ga. App. 174, 175 (2) (518 SE2d 186) (1999).

        Gibbins v. State, 229 Ga. App. 896, 899 (4) (495 SE2d 46) (1997).

        Livery v. State, 233 Ga. App. 332, 334 (1) (a) (503 SE2d 914) (1998).

        Tucker v. State, 191 Ga. App. 648, 649 (382 SE2d 425) (1989).

        Williams v. State, 261 Ga. 640, 642 (2) (409 SE2d 649) (1991).

        Jordan v. State, 230 Ga. App. 560 (497 SE2d 48) (1998).

        Simpson v. State, 271 Ga. 772 (523 SE2d 320) (1999).

        Strickland v. Washington, 466 U. S. 668, 687 (104 SC 2052, 80 LE2d 674) (1984).

        Rucker v. State, 268 Ga. 406, 407 (2) (489 SE2d 844) (1997).

        Brewer v. State, 224 Ga. App. 656, 657-658 (2) (481 SE2d 608) (1997).

        Ortiz v. State, 222 Ga. App. 432, 434 (5) (474 SE2d 300) (1996).

        McGarity v. State, 224 Ga. App. 302, 303 (1) (480 SE2d 319) (1997).

        Johnson v. State, 266 Ga. 380, 383 (2) (467 SE2d 542) (1996).

        Welch v. State, 216 Ga. App. 256, 257 (454 SE2d 566) (1995).

        Gable v. State, 222 Ga. App. 768, 770 (3) (476 SE2d 66) (1996).


source: Caselaw Access Project

author: Phipps, Judge.

license: Public Domain

text:
    A00A2368.
    GREENE et al. v. TEAM PROPERTIES, INC. et al.
    (544 SE2d 726)
   Phipps, Judge.

Vivian and Ralph Greene sued Team Properties, Inc. and Elora Stargel, its President, for violation of the Fair Business Practices Act of 1975 (FBPA). The trial court found that the Greenes had failed to comply with the FBPA’s two-year statute of limitation, granted defendants’ motion for summary judgment, and dismissed the case. The Greenes claim that the trial court erred by ruling that the statute of limitation had expired before their suit was filed and by dismissing their entire complaint, including their fraud claim. We affirm the trial court’s ruling that the Greenes’ FBPA claim is barred by the statute of limitation, but reverse the dismissal of the fraud claim because it was not addressed in the motion for summary judgment.

In July 1997, the Greenes were having financial difficulties and could not make the mortgage payments on their Hall County residence. The mortgage company had advertised a foreclosure sale of the property, which was set for August 5, 1997.

Several days before the foreclosure date, Vivian Greene was contacted by Rick Little, who was in the business of locating real estate subject to foreclosure for purchase by others. Little told her that he might know of individuals willing to purchase the property and lease it back to her. Greene told Little that she was interested in pursuing such an arrangement. Little contacted Stargel, who told him that she was willing to purchase the property by paying off the mortgage and that she would lease it back to the Greenes. Stargel drafted a quitclaim deed for the Greenes to sign, and Little delivered it to them. On August 4, 1997, the Greenes executed the quitclaim deed, which conveyed the property to Team Properties, and continued to live in the house.

Stargel claims that Koger Akins, Secretary of Team Properties, delivered a residential lease agreement to the Greenes, which they never returned. Vivian Greene claims that she attempted to contact Stargel about the rent she was supposed to pay, but Stargel never returned her calls. Approximately two months later, Team Properties sold the property, and the Greenes were evicted. The Greenes claim that Team Properties sold the property for $20,000 more than the Greenes had owed on the mortgage.

On August 17, 1999, the Greenes filed suit for violation of the FBPA and sought actual damages of $20,000, exemplary damages of $60,000, attorney fees, and expenses of litigation. They later amended their complaint to assert a claim for fraud. Team Properties and Stargel moved for summary judgment, claiming that the statute of limitation had run on the Greenes’ FBPA claim on August 4, 1999, two years after the quitclaim deed was signed. The trial court ruled that the Greenes knew or should have known that a cause of action had accrued on August 4,1997, when Team Properties purchased the property without furnishing the statutorily required notices. The trial court also ruled that the Greenes had failed to file their complaint within the statute of limitation and found that the limitation period was not tolled by the 30-day notice the Greenes were required to give before filing suit under the FBPA.

1. The Greenes claim that Team Properties and Stargel violated OCGA § 10-1-393 (b) (20) (C), which regulates the purchase of property used by a debtor as a dwelling place, where the debtor’s loan for the property is in default and the debtor remains in possession of the property after the purchase. The statute requires that a written contract be employed by the buyer, that the contract contain certain terms, and that the buyer furnish the seller, at the time of closing, a notice allowing the seller ten days to cancel the purchase. Team Properties and Stargel acknowledge that they never provided the Greenes with a written contract or a notice of their right to cancel the purchase within ten days.

Pursuant to OCGA § 10-1-401, an action under the FBPA cannot be brought “ [m] ore than two years after the person bringing the action knew or should have known of the occurrence of the alleged violation.” There is no dispute that the violation took place on August 4, 1997, when Team Properties obtained the Greenes’ property without complying with OCGA § 10-1-393 (b) (20) (C). The issue is when the Greenes knew or should have known of the violation.

Relying on King v. Seitzingers, Inc. , the Greenes argue that the statute of limitation did not begin to run until they discovered they had been injured, which occurred when they received notice of the dispossessory action. The discovery rule of King has been strictly confined to cases of bodily injury that develop over an extended period of time and does not extend to the Greenes’ FBPA claim. Nor do we find merit in the Greenes’ argument that the violation of the FBPA was a continuing violation that was not completed until the property was sold to a third party. The failure to provide a written contract or notice of the right to rescind was evident and complete at the time the property was transferred to Team Properties.

It appears that the Greenes did not know of the statutory violation on August 4, 1997, because they did not know what documentation Team Properties was required to provide to them. But ignorance of the law offers no legal excuse for failing to file an action within the applicable statute of limitation. We find that the Greenes should have known of the violation on August 4, 1997, when the property was transferred to Team Properties.

2. The Greenes claim that the statute of limitation was tolled or extended by the 30-day notice requirement of OCGA § 10-1-399 (b).

Initially, the Greenes argue that because they were required to give Team Properties and Stargel a written demand for relief 30 days before filing their action, the statute of limitation was effectively reduced to 23 months. In fact, the Greenes had a full 24 months in which to file their action and could have given the 30-day notice at any time within those 24 months so long as it was given 30 days before the action was filed and the limitation period expired. Accepting the Greenes’ argument would result in a 30-day extension of the limitation period.

The Greenes next rely on Butler v. Glen Oak’s Turf to support their claim that the limitation period was tolled. In Butler, an employee sought relief for a work-related injury and initially proceeded under the Workers’ Compensation Act (the Act). The administrative law judge (ALJ) awarded Butler workers’ compensation benefits and that award was adopted by the State Board of Workers’ Compensation and confirmed by the superior court. This court reversed the superior court’s decision, and Butler filed a personal injury action two weeks later. Because Butler was legally barred from bringing her action from the date the ALJ found she was covered by the Act until the date this court found she was not covered, the statute of limitation was tolled during that period.

Butler is distinguishable. The Greenes did not provide timely notice of their claim and then become legally barred from bringing their action based on a ruling on their initial claim. Instead, they waited too late to provide the required notice and were unable to properly file their action within the limitation period. In Butler, the court sought to avoid duplicative procedures wherein cases would be filed and then mooted whenever the Workers’ Compensation Board determined it had jurisdiction to grant relief, thus imposing a heavy burden on the claimant and on the superior courts. Requiring a FBPA claimant to comply with the notice requirement and the statute of limitation does not impose the same heavy burden.

Finally, the Greenes argue that mailing the required notice constituted the bringing of an action, which is all that OCGA § 10-1-401 requires. They rely on the following language in Howard v. State of Ga. : “ While the giving of [ante litem] notice is a condition precedent to the bringing of an action, the giving of (the) notice is at once part and parcel of the enforcement of the right and it is an inseparable part of the bringing of the action.’ ” The fact that ante litem notice is an inseparable part of bringing the action does not mean that merely giving the required notice also constitutes the bringing of an action. Howard does not hold otherwise. In addition, giving ante litem notice under the statute involved in Howard automatically tolls the running of the statute of limitation while the demand for payment is pending. The FBPA contains no similar tolling provision.

The Greenes have pointed to no valid basis for tolling or extending the applicable two-year statute of limitation. Nor do we find any valid basis for tolling the statute. The Greenes’ FBPA claims against Team Properties and Stargel are barred by the applicable two-year statute of limitation.

3. Although Team Properties and Stargel filed a motion for compíete summary judgment, they did not address the Greenes’ fraud claim in their motion, brief, or any other supporting materials submitted to the trial court. In effect, they filed a motion for partial summary judgment. The trial court should have granted summary judgment only on Count 1 of the complaint and erred by dismissing the entire case. We reverse the dismissal of Count 2 of the complaint.

Decided January 11, 2001.

Edmund A. Waller, for appellants.

Carey, Jarrard & Walker, R. Thomas Jarrard, Leonard D. Myers, Jr., for appellees.

Judgment affirmed in part and reversed in part.

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

       OCGA § 10-1-390 et seq.

       The contract must contain a statement that the provisions of the contract have been fully explained to the seller and a representation that the seller understands that, under the agreement, he or she is selling the house to the purchaser. OCGA § 10-1-393 (b) (20) (C) (ii).

       160 Ga. App. 318 (287 SE2d 252) (1981).

        Hanna v. McWilliams, 213 Ga. App. 648, 649 (2) (a) (446 SE2d 741) (1994).

        Fitzgerald v. Morgan, 200 Ga. 651, 656 (3) (38 SE2d 171) (1946).

       196 Ga. App. 98 (395 SE2d 277) (1990).

       Id. at 101.

       Id. at 99.

       (Citation omitted.) 226 Ga. App. 543 (487 SE2d 112) (1997).

       Id. at 546 (2).

       OCGA § 36-33-5 (d).

       See OCGA § 9-3-90 et seq.


text:
    A01A0497.
    WRIGHT v. OLIVER et al.
    (544 SE2d 725)
    Decided January 11, 2001.
   Phipps, Judge.

Jackie and Valdina Oliver sued Willie Wright for damages after vehicles the Olivers purchased through Wright turned out to have been stolen. The jury returned a verdict awarding the Olivers $11,250 based on a finding that Wright breached an implied warranty of title under OCGA § 11-2-312 when he sold one of the vehicles. Wright appeals judgment entered on the verdict. Wright contends that the trial court erred in denying his motion for directed verdict. Wright maintains that the evidence shows without dispute that he did not sell the vehicle to the Olivers, but simply put them in touch with the owner and agreed to pick up and deliver the vehicle for $400. The Olivers, however, testified that Wright represented himself as being in partnership with the owner, and they agreed to purchase the vehicle from Wright. Thus there is evidence authorizing a jury to find that Wright sold the vehicle. Consequently, the court correctly denied Wright’s motion for directed verdict.

Judgment affirmed.

Smith, P. J., and Barnes, J., concur.

Debra G. Gomez, for appellant.

John E. Morrison, for appellees.

       Compare Derryberry v. Robinson, 154 Ga. App. 694, 695 (1) (269 SE2d 525) (1980).

       See generally Guagliardo v. Jones, 238 Ga. App. 668, 669 (518 SE2d 925) (1999).


author: Smith, Presiding Judge.

text:
    A00A1990.
    HARKINS v. CA 14TH INVESTORS, LTD.
    (544 SE2d 744)
   Smith, Presiding Judge.

In this renewal action, Lee R. Harkins sought to recover damages for personal injuries incurred when he slipped and fell in the parking deck of his then employer, BellSouth Telecommunications. The parking deck was owned by 1155 Peachtree Associates, a joint venture between BellSouth Corporation, the parent company of Bell-South Telecommunications, and CA 14th Investors, Ltd. Harkins brought suit against several parties, including 1155 Peachtree and CA 14th Investors, the appellee here. 1155 Peachtree moved to dismiss or, in the alternative, for summary judgment on the ground that a joint venture is not a legal entity. The trial court granted the motion and dismissed the action as to 1155 Peachtree. That dismissal is not appealed. The trial court also granted CA 14th Investors’ motion for summary judgment, made on the ground of release. The case remains pending against the other parties named. Harkins appeals, contending that the trial court erred in granting CA 14th Investors’ motion for summary judgment because a jury issue remained as to whether the release covered this claim. Because we find that the release unambiguously covered claims against “related” and “affiliated” companies and that CA 14th Investors was such a company, we affirm the trial court’s judgment.

At the time Harkins alleges he fell in the parking deck, July 19, 1994, he was an employee of BellSouth Telecommunications. In July 1995, he filed the original lawsuit seeking to recover damages for personal injuries resulting from the fall. He subsequently left the employ of BellSouth Telecommunications, taking advantage of an “early retirement” package known as the Career Transition Assistance Plan. In doing so, on November 25, 1996, he executed a release in consideration for the severance plan. Harkins’s original lawsuit was dismissed in April 1997, and this renewal action was filed in October 1997.

The release signed by Harkins contained language by which Harkins agreed to

fully waive, discharge, and release any and all claims of whatever nature, known or unknown, I may have against BellSouth Telecommunications, Inc., its parent, subsidiaries, affiliated and related companies, their respective owners, representatives, officers, directors, attorneys, agents, employees, successors and assigns (hereinafter collectively referred to as “BST”) as a result of actions or omissions occurring through this date.

On a motion for summary judgment, a defendant movant must show that the evidence presents no triable issue as to any element of the plaintiff’s case. Lau’s Corp. v. Haskins, 261 Ga. 491, 495 (4) (405 SE2d 474) (1991). Harkins contends that as the nonmovant, he must be given the benefit of all reasonable doubt in construing the release. He argues that at best this language is ambiguous because CA 14th Investors is not named and the terms “affiliated” and “related” are not defined or explained. We do not agree.

Harkins suggests he was never informed that the release would cover this claim, or any claims other than employment-related claims. But the record shows that his counsel was informed that the release would, indeed, cover this action, which was pending at the time Harkins signed the release.

Harkins also claims that when he signed the release he did not “intend” to release this claim. But he could not simply ignore the clear language of the release concerning its effect and rely on his own “intent.” It is clear that he signed the release with imputed knowledge, if not actual knowledge, that the release would bar this claim. Moreover, nothing in the record suggests that Harkins’s “intention” that the release not bar this claim was shared by any other party to the contract. If the intentions of the parties to a contract differ, “the meaning placed on the contract by one party and known to be thus understood by the other party at the time shall be held as the true meaning.” OCGA § 13-2-4. “It is a fundamental rule of contractual construction that evidence as to the intention of one party is irrelevant and inadmissible, in the absence of proof that such intention was shared by the other party.” Brown v. Blackmon, 272 Ga. 435, 436 (530 SE2d 712) (2000).

We find no ambiguity in the terms “affiliated” and “related” companies. “The fact that the scope of the release is broad does not make it ambiguous.” (Citation and punctuation omitted.) Rice v. Huff, 221 Ga. App. 592, 593 (1) (472 SE2d 140) (1996). The words in a contract generally bear their “usual and common signification,” OCGA § 13-2-2 (2), and dictionaries may supply the plain and ordinary meaning of a word. Market Place Shopping Center v. Basic Business Alternatives, 213 Ga. App. 722 (1) (445 SE2d 824) (1994). According to Black’s Law Dictionary, the term “affiliate” “signifies a condition of being united; being in close connection, allied, associated, or attached as a member or branch,” and an “affiliate company” is defined as a “[c]ompany effectively controlled by another company.” “Related” means “[s]tanding in relation; connected; allied; akin.” Black’s Law Dictionary 58, 1288 (6th ed. 1990).

Decided January 16, 2001.

Strawinski & Goldberg, James S. Strawinski, Nicole L. Wolfe, Alston & Bird, George A. Koenig, for appellant.

Webb, Carlock, Copeland, Semler & Stair, William E. Zschunke, Melissa C. Duffey, Kilpatrick Stockton, Alan R. Perry, Jr., Marcus S. Sacks, Matthew H. Patton, J. Michael Wiggins, R. Chris Irwin, for appellee.

BellSouth Telecommunications and 1155 Peachtree are certainly related or affiliated. They are both owned, in part, by the same company: BellSouth Corporation. And 1155 Peachtree is owned, in part, by CA 14th Investors. 1155 Peachtree therefore fits within a category of companies identified in the release. See generally Kinard v. Worldcom, 232 Ga. App. 278, 279 (500 SE2d 649) (1998) (company could claim benefit of release because it fit within category of “stockholder” identified in release). As an owner of an affiliated or related company, CA 14th Investors is identified in the release, in addition to being itself affiliated or related to BellSouth Telecommunications. In fact, under Georgia law, “a joint venture is not a distinct legal entity separate and apart from the parties composing it.” (Citations and punctuation omitted.) Accolades Apts. v. Fulton County, 242 Ga. App. 214, 215 (1) (528 SE2d 268) (2000). Therefore, even if CA 14th Investors were not released as an “owner” of an affiliated or related company, it was released by virtue of the relationship of 1155 Peachtree and BellSouth Telecommunications because it, and not 1155 Peach-tree, is one of the real parties in interest constituting the joint venture. See Watson/Winter Joint Venture v. Milledge, 224 Ga. App. 395, 397 (480 SE2d 389) (1997).

Because CA 14th Investors presented undisputed evidence showing that Harkins executed a release covering this claim, the trial court did not err in granting its motion for summary judgment.

Judgment affirmed.

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


author: Ellington, Judge.

text:
    A00A2031.
    JORDAN v. THE STATE.
    (544 SE2d 731)
   Ellington, Judge.

A Newton County jury convicted Nathaniel Jordan of possession of cocaine, OCGA § 16-13-30 (a), and giving a false name to a police officer, OCGA § 16-10-25. Following a hearing, the trial court denied Jordan’s out-of-time motion for new trial. Jordan filed this appeal, contending that he received ineffective assistance of counsel and that the trial court erred in denying his request for a continuance to secure other counsel.

1. “It is the duty of this court to raise the question of its jurisdiction in all cases in which there may be any doubt as to the existence of such jurisdiction.” (Citations and punctuation omitted.) Rowland v. State, 264 Ga. 872 (1) (452 SE2d 756) (1995). In this case, the trial court expressly ruled on — and denied — Jordan’s “extraordinary motion for new trial.” An appeal from the denial of an extraordinary motion for new trial must be brought in accordance with the discretionary appeal procedure. OCGA § 5-6-35 (a) (7), (b), (d). Failure to follow this procedure where required deprives this Court of jurisdiction to entertain the appeal. Pitts v. State, 254 Ga. 298 (328 SE2d 732) (1985). Cf. Barnes v. State, 243 Ga. App. 703, 704 (534 SE2d 440) (2000) (order denying a motion for out-of-time appeal is directly appealable). Jordan filed a notice of appeal rather than an application for discretionary appeal under OCGA § 5-6-35 (a) (7). We therefore must examine whether we have jurisdiction to hear Jordan’s appeal.

The record shows that Jordan initially filed a “motion for permission to file out-of-time motion for new trial.” Apparently, Jordan accepted the trial court’s instruction that the law does not recognize such a motion and then filed an “extraordinary motion for new trial” asserting the same arguments. In denying Jordan’s (extraordinary or out-of-time) motion for new trial, the trial court ruled on his substantive claims that his trial counsel provided ineffective assistance in failing to interview and subpoena essential witnesses and that the trial court abused its discretion in denying his motion for a continuance of the trial to secure replacement trial counsel.

Although Jordan conceded at the hearing that his motion was an extraordinary motion for new trial, we are mindful that “[t]here is no magic in mere nomenclature,” and “[p]leadings are construed to serve the best interests of the pleader, and are judged by function rather than name.” (Citations and punctuation omitted.) Brown v. State, 208 Ga. App. 726, 727 (431 SE2d 726) (1993). The Supreme Court of Georgia has expressly held that a motion for leave to file an out-of-time motion for new trial, rather than for leave to file an out-of-time appeal, does not by definition constitute an extraordinary motion for new trial. Bohannon v. State, 262 Ga. 697 (425 SE2d 653) (1993). A direct appeal is appropriate from the denial on the merits of an out-of-time motion for new trial where the trial court found that the lack of diligence in filing a timely motion was attributable to counsel and not to the criminal appellant. Balkcom v. State, 227 Ga. App. 327, 330-331 (489 SE2d 129) (1997). As Judge Beasley explained in her dissent, “a motion for new trial on general grounds [is allowed] to be filed late and not be considered an extraordinary motion for new trial, if the trial court is satisfied of good reason for the delay and grants leave to do so.” Id. at 335, n. 1 (Beasley, J., dissenting).

Because Jordan asserted that his trial counsel rendered ineffective assistance and that the trial court committed error in denying his motion for a continuance — both issues that could have been asserted in a timely motion for new trial — Jordan’s motion was not properly categorized as an extraordinary motion for new trial. Balkcom v. State, 227 Ga. App. at 330. Instead, Jordan’s motion should be categorized as a motion for leave to file an out-of-time appeal to make an out-of-time motion for new trial. See Adams v. State, 239 Ga. App. 42, 43 (2) (520 SE2d 746) (1999). In this case, by holding a hearing on the merits of Jordan’s claims, the trial court implicitly accepted his explanation that the ultimate responsibility for the failure to file a timely motion for new trial was attributable solely to his trial counsel. See Barnes v. State, 243 Ga. App. at 704-705 (trial court must consider evidence to determine who bore responsibility for the failure to file a timely appeal); Hasty v. State, 213 Ga. App. 731, 732 (445 SE2d 836) (1994) (same). See also Balkcom v. State, 227 Ga. App. at 334 (Beasley, J., dissenting) (appointing new counsel, bringing appellant back to court from prison, setting and holding a hearing, and denying the motion on the merits, all demonstrated that the trial court permitted an out-of-time motion for new trial). Accordingly, we find we have jurisdiction to review the denial on the merits of Jordan’s out-of-time motion for new trial. Butts v. State, 244 Ga. App. 366-367 (536 SE2d 154) (2000). Cf. Porter v. State, 271 Ga. 498, 499 (521 SE2d 566) (1999) (court had no jurisdiction to consider appeal of the denial of an out-of-time motion for new trial because the record did not show that appellant had shown the trial court that the failure to file a timely motion was due to appellate counsel’s failure to perform routine duties); Balkcom v. State, 227 Ga. App. at 328 (on appeal, criminal appellant conceded that his motion for new trial was an extraordinary one).

2. Jordan contends his trial counsel rendered ineffective assistance in his preparation for trial.

Under the standard established in Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984), one asserting his trial counsel’s performance was so deficient as to deny him effective assistance of counsel under the Sixth Amendment must make two affirmative showings: that counsel’s representation fell below an objective standard of reasonableness (i.e., that counsel performed deficiently); and that such deficiency prejudiced the defense. Concerning the prejudice component, the Court (in Strickland) held that the defendant must show that there is a reasonable probability (i.e., a probability sufficient to undermine confidence in the outcome) that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. Furthermore, there is a strong presumption that trial counsel’s performance falls within the wide range of reasonable professional assistance and that any challenged action might be considered sound trial strategy. In the absence of testimony to the contrary, counsel’s actions are presumed strategic. The trial court’s determination that an accused has not been denied effective assistance of counsel will be affirmed on appeal unless that determination is clearly erroneous.

(Citation and punctuation omitted.) Veal v. State, 242 Ga. App. 873, 877 (5) (531 SE2d 422) (2000).

Jordan was arrested for giving false information to a law enforcement officer after police responded to a 911 call about an assault victim knocking on doors and asking for help. As the responding officer interviewed Jordan about what had happened to him, Jordan gave three different dates of birth and two false names. While Jordan was being booked on the charge of giving false information, an officer found a small amount of cocaine in Jordan’s pocket, and Jordan was charged with possession of cocaine.

Jordan contends his trial counsel’s performance was deficient in failing to identify and interview the 911 caller and in failing to interview Jeff King, a witness who had been with Jordan until shortly before Jordan was assaulted. Jordan wanted to show that the young men who assaulted him planted the cocaine in his pocket. At the new trial hearing, Jordan’s trial counsel explained that, after discussing those potential witnesses with Jordan, counsel concluded that the possible benefit from the testimony of each of those witnesses did not outweigh the strategic advantage of retaining the right to opening and closing arguments by offering no defense evidence. Trial counsel’s valid strategic reasons for not pursuing such minor witnesses do not equate with ineffective assistance of counsel. See Gurr v. State, 238 Ga. App. 1, 4 (5) (516 SE2d 553) (1999) (preserving the final word in closing argument is a well-recognized trial tactic). Having reviewed the transcript of the hearing during which trial counsel testified and defended his decisions, we find the trial court’s conclusion that Jordan failed to show ineffectiveness under the standards of Strickland v. Washington, supra, was not clearly erroneous. Ney v. State, 227 Ga. App. 496, 501 (4) (b) (489 SE2d 509) (1997).

Decided January 16, 2001.

James E. Millsaps, for appellant.

Alan A. Cook, District Attorney, W. Kendall Wynne, Jr., Assistant District Attorney, for appellee.

3. Jordan contends the trial court abused its discretion in denying his motion for a continuance of the trial to secure other counsel. The motion for a continuance, made five days before trial, was based on Jordan’s lack of confidence in trial counsel’s ability and disagreement with his advice and strategy. Jordan failed to articulate any basis for his dissatisfaction, however, and failed to show how a continuance would have affected the outcome of the trial. “Denial of [a] continuance may be proper where defendant negligently failed to employ counsel promptly or where it appears he is using the tactic for delay.” Stephens v. State, 208 Ga. App. 620, 621 (1) (431 SE2d 422) (1993). Based on the record herein, we cannot say the trial court abused its discretion in denying Jordan’s last-minute motion for a continuance in order to hire new counsel. See Wilson v. State, 231 Ga. App. 621 (1) (500 SE2d 387) (1998).

Judgment affirmed.

Andrews, P. J., and Ruffin, J., concur.

       But see Daniel, Ga. Criminal Trial Practice, § 28-12, p. 886 (1999 ed.) (any motion for new trial filed more than 30 days after entry of judgment is an extraordinary motion for new trial); Dick v. State, 248 Ga. 898-899 (1) (287 SE2d 11) (1982) (same); Gibbs v. State, 213 Ga. App. 117 (443 SE2d 708) (1994) (OCGA § 5-6-39 (b) prohibits extensions of time for motions for new trial and therefore there are no out-of-time motions for new trial).


author: Mikell, Judge.

text:
    A00A2163.
    GUNTER v. PATTERSON BANK.
    (544 SE2d 735)
   Mikell, Judge.

Carolyn Gunter appeals the grant of summary judgment to the Patterson Bank in this premises liability action. We reverse.

To prevail at summary judgment under OCGA § 9-11-56, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law. Moreover, we are reminded by the Supreme Court that the routine issues of premises liability, i.e., the negligence of the defendant and the plaintiff, and the plaintiff’s lack of ordinary care for personal safety are generally not susceptible of summary adjudication, and summary judgment is granted only when the evidence is plain, palpable, and undisputed.

On appeal from the trial court’s grant of summary judgment, we conduct a de novo review to determine if the evidence demonstrates any genuine issue of material fact.

Viewed in the light most favorable to the nonmovant, the evidence shows that on February 5, 1996, at approximately 9:10 a.m., Gunter fell on a mat at the entrance to the Patterson Bank (the “Bank”) and injured herself. Gunter was the chief bookkeeper for the Pierce County Board of Education, and in that capacity, she was responsible for making bank deposits. Since her employer rotated its account among three banks in the county every two years, Gunter had previously traversed the entrance at the bank. When she fell, however, this was the first time she had used the entranceway, instead of the drive-through window, since her employer had returned its account to the Bank a little over a month earlier.

On the day that she fell, Gunter deposed that the temperature was 25°F or 26°F, but there was no ice on the roads. Since it had rained the night before, however, the streets were wet. Gunter parked in a parking space directly across from the bank. The parking lot was wet, but Gunter did not notice any ice.

Gunter, who was wearing rubber-soled shoes with a half-inch heel, walked on the sidewalk that was parallel to the front of the bank. When she reached the front door, which was on her right side, she put her hand on the handle and stepped on the mat in front of the door with her right foot. She was not looking at the mat as she reached for the door handle. The mat slipped forward before she could step on it with her left foot, and she fell onto the concrete, injuring her left knee.

After she fell, Gunter noticed water in the little holes in the mat. She also noticed that there was a black and greenish slimy substance on her hand and sweater. She did not know if anyone in the bank saw her fall, but she assumed that they heard her yell because they rushed to help her up. After her fall, Gunter recalled that a female employee picked up the mat and swept away the water that was standing underneath it. Gunter did not recall if the mat had been there the last time she traversed the entrance.

Victoria Kelly, a Bank employee, stated in her affidavit that the mat had been in the same place for at least five years before Gunter fell. Furthermore, Kelly, wearing dress pumps with at least a one-inch heel, had traversed the mat earlier that morning. She had not noticed a slimy, slippery or icy substance on the mat.

Linda Peacock, a former employee of the Bank, deposed that customers could not enter the bank without stepping on the mat. Peacock also said that green stuff grew on the walkway and may have been on the mat that morning. She deposed that she rarely used the front entrance because it could be slippery and she was afraid to fall. Peacock recalled that more than two weeks before Gunter’s fall, the janitor had been told to clean the algae with bleach. In his affidavit, the janitor, Joey Carter, indicated that the holes in the mat held water when it rained and that algae grew on the sidewalk and entranceway. He recalled that he had talked to a Bank employee about cleaning the front entrance because of the algae.

The Bank president, D. D. Thomas, deposed that he was responsible for overseeing the maintenance at the bank, but Carter would have been the person responsible for cleaning the mat. Thomas was not aware of any employees or customers slipping at the entrance before Gunter’s fall. He deposed that most of the Bank’s employees used the back entrance. When asked during his deposition if there was ever a problem with mold growing on the entrance, Thomas replied, “Oh, yes.” Thomas later explained that the entrance became discolored on occasion because of dampness due to the nature of the stone, but the entrance was not slippery. Also, Thomas opined that since the mat was on a sloping surface, it would be difficult for water falling on the mat to become trapped in the mat’s holes.

In the trial court, the Bank argued that it was entitled to summary judgment because it did not have actual or constructive knowledge of the alleged hazard, and actions or conditions within its control did not cause Gunter’s fall. The court agreed. On appeal, Gunter contends that the trial court erred because genuine issues of fact exist as to the Bank’s negligence. We agree.

An owner or occupier of land is liable to invitees for injuries caused by his failure to exercise ordinary care in keeping his premises and approaches safe. This duty of ordinary care requires the owner to protect the invitee from unreasonable risks of harm of which the owner has superior knowledge and to inspect the premises to discover possible dangerous conditions of which the owner does not have actual knowledge. To recover for injuries sustained in a slip-and-fall action, therefore, the invitee must prove (1) that the owner had actual or constructive knowledge of the hazard, and (2) that the plaintiff lacked knowledge of the hazard, despite the exercise of ordinary care, due to actions or conditions within the control of the owner.

“A plaintiff who alleges she slipped on a foreign substance must present some evidence of a foreign substance on the ground where she slipped.” Gunter’s deposition testimony that there was a slimy substance on the mat, which she felt on her hands and saw on her clothes after she fell, is not disputed. Thus, it “is sufficient to create a genuine issue of material fact regarding the presence of a foreign substance on the floor where she fell.”

The issue of whether the Bank had actual or constructive knowledge of this substance is disputed. While the evidence does not demonstrate that the Bank had actual knowledge of the substance, it does preclude us from holding as a matter of law that the Bank did not have constructive knowledge of the substance. Based on the deposition testimony of the Bank president, it appears that Carter was the person who maintained the mat and the entranceway. In his affidavit, Carter stated that the holes in the mat held water and that algae grew on the bank’s sidewalk and entranceway. These averments are consistent with Gunter’s observations. Peacock also testified that “green stuff” grew on the walkway to the bank. The deposition testimony of Gunter and Peacock, along with Carter’s affidavit, create a genuine issue of fact as to the Bank’s constructive knowledge of the substance.

The Bank argues that the foreign substance had not been on the mat long enough for the Bank to discover its presence. In support of this argument, the Bank relies on employee Kelly’s affidavit. Kelly stated that she did not notice anything slimy, slippery or icy when she traversed the same area where Gunter fell shortly before the Bank opened for business that day.

Though we recognize the conflict in the evidence, “for purposes of summary judgment we do not look to the conflicts in the evidence but instead to whether plaintiff’s evidence presents a prima facie case which would authorize a jury to resolve the issues of fact in her favor.” Furthermore, we have held that “in order to withstand a motion for summary judgment, a plaintiff need not show how long a substance has been on the floor unless the defendant has established that reasonable inspection procedures were in place and followed at the time of the incident.” In this case, there is no evidence that the Bank utilized an inspection procedure which could have revealed the substance’s presence. “Constructive knowledge may be inferred when there is evidence that the owner lacked a reasonable inspection procedure.”

Decided January 16, 2001.

Fred R. Kopp, for appellant.

The Bank attempts to discredit Carter’s and Peacock’s statements because they are former Bank employees. In its brief, the Bank references Peacock’s prior misdemeanor conviction and requests that we consider her credibility when evaluating the veracity of her statement. It is not our role on appeal to assess Carter’s or Peacock’s credibility. Determining the credibility of a witness is exclusively within the province of the jury, and any evidence of a witness’ interest or bias toward his employer is for jury consideration.

In light of our finding that a jury issue remains regarding the Bank’s constructive knowledge, we need not consider Gunter’s efforts to invoke the distraction doctrine to preclude summary judgment. We note, however, that the Supreme Court has held that when an invitee explains that she was not looking at the hazard because of a distraction within the owner’s control, such as the premises configuration, the invitee has presented some evidence that she exercised reasonable care for her safety. In that case, the factfinder shall determine if the invitee’s injury was caused by the owner’s negligence and whether the invitee exercised reasonable care for her own safety.

The Supreme Court has also disapproved the line of cases holding that as a matter of law an invitee’s failure to observe the hazard which caused the fall, before falling, constitutes a failure to exercise ordinary care. Thus, Gunter’s admission that she did not look at the mat before she fell is not determinative. The pertinent question before us is whether there is evidence that the Bank had actual or constructive knowledge of the foreign substance. We find that there is evidence in the record from which a jury could determine that the Bank had constructive knowledge of the substance. Accordingly, we reverse the trial court’s grant of summary judgment.

Judgment reversed.

Pope, P. J., and Miller, J., concur.

Fendig, McLemore, Taylor, Whitworth & Durham, Philip R. Taylor, Beth M. Duncan, for appellee.

       (Citations and punctuation omitted.) Ingles Markets v. Martin, 236 Ga. App. 810 (513 SE2d 536) (1999).

        Shepard v. Winn Dixie Stores, 241 Ga. App. 746, 747 (527 SE2d 36) (1999).

       Peacock was terminated for advancing new money against old notes.

       (Citations omitted.) Kauffman v. Eastern Food &c., 246 Ga. App. 103, 104 (2) (539 SE2d 599) (2000).

        Hutchins v. J H. Harvey Co., 240 Ga. App. 582, 584 (1) (524 SE2d 289) (1999).

       Id.

       (Citation omitted.) Davis v. Piedmont Hasp., 222 Ga. App. 97, 98 (473 SE2d 531) (1996).

        Martin, supra at 811.

        Hutchins, supra at 585.

        McNeely v. Wal-Mart Stores, 246 Ga. App. 852 (542 SE2d 575) (2000).

        Robinson v. Kroger Co., 268 Ga. 735, 746 (2) (a) (493 SE2d 403) (1997).

       Id.

       Id. at 743 (1).


author: MlKELL, Judge.

text:
    A00A2392.
    GRIER-BAXTER v. SIBLEY et al.
    (545 SE2d 5)
   MlKELL, Judge.

Danita L. Grier-Baxter appeals the trial court’s order granting summary judgment to the defendants in this dental malpractice action. Grier-Baxter brought the underlying action against Felix W. Sibley, Jr., D.D.S. and Felix W. Sibley, Jr., D.D.S., P.C., seeking damages for acts that took place between January 6,1997, and March 17, 1997. Grier-Baxter filed her original complaint on December 30, 1998, but did not attach the required expert affidavit. Instead, GrierBaxter invoked the forty-five-day rule of OCGA § 9-11-9.1 (b) because the action was filed within ten days of the expiration of the applicable statute of limitation. Before filing the required expert affidavit, however, Grier-Baxter dismissed the complaint without prejudice.

On August 4, 1999, Grier-Baxter filed the instant action pursuant to the renewal statute, OCGA § 9-2-61. The complaint was accompanied by an expert affidavit that was signed and dated July 26,1999. Defendants answered, asserting that the instant action was not a valid renewal because the original action was void as a result of Grier-Baxter’s failure to file the required affidavit within 45 days. Contemporaneously, defendants filed a motion for summary judgment based on the statute of limitation. OCGA § 9-3-71 (a). The trial court granted the motion, and this appeal followed. We affirm.

1. As a preliminary matter, Grier-Baxter argues that the defendants’ motion for summary judgment was an improper remedy and that the defendants should instead have moved to dismiss. This argument has no merit.

Under OCGA § 9-11-9.1 (b), an expert affidavit must be filed in a malpractice action within 45 days of the filing of the complaint. Otherwise, the action is subject to dismissal for failure to state a claim if the defendant alleges “by motion to dismiss filed contemporaneously with its initial responsive pleading that the plaintiff has failed to file the requisite affidavit.” (Emphasis supplied.) Likewise, subsection (e) provides:

If a plaintiff fails to file an affidavit. . . and the defendant raises the failure to file such an affidavit by motion to dismiss filed contemporaneously with its initial responsive pleading, such complaint shall not be subject to the renewal provisions of Code Section 9-2-61 after the expiration of the applicable period of limitation. . . .

(Emphasis supplied.) Based on the statutory language, Grier-Baxter argues that defendants were required to file a motion to dismiss rather than a motion for summary judgment. In support, GrierBaxter cites Williams v. Hajosy, 210 Ga. App. 637 (436 SE2d 716) (1993). However, such reliance is misplaced.

In Williams, we clarified that “[a] distinction must be made between the sufficiency of the affidavit of plaintiff’s expert for pleading purposes under OCGA § 9-11-9.1 (a), and its evidentiary sufficiency to defeat a motion for summary judgment under OCGA § 9-11-56.” Id. at 637-638. Like the motion for summary judgment in Williams that addressed the evidentiary sufficiency of the expert affidavit, the motion in the case sub judice does not merely challenge Grier-Baxter’s compliance with pleading requirements, but also asserts that the action was barred by the statute of limitation. Furthermore, we have permitted motions for summary judgment challenging compliance with OCGA § 9-11-9.1 in a number of cases. See, e.g., Lyberger v. Robinson, 207 Ga. App. 845 (429 SE2d 324) (1993); Austin v. Greenberg Farrow Architects, 201 Ga. App. 448 (411 SE2d 346) (1991); Foskey v. Foster, 199 Ga. App. 205 (404 SE2d 303) (1991). Accordingly, defendants’ motion for summary judgment was a proper method by which to seek an adjudication in their favor. The trial court did not err in granting the motion.

2. Next, Grier-Baxter challenges the court’s conclusion that her action was barred by the statute of limitation. This argument is without merit.

In a case involving nearly identical facts, Trucano v. Rosenberg, 215 Ga. App. 153, 154 (450 SE2d 216) (1994), we affirmed the trial court’s grant of summary judgment and held that

[fiailure to file an expert affidavit with the complaint as required by OCGA § 9-11-9.1 is a non-amendable defect foreclosing the use of OCGA § 9-2-61, unless the court determines that the affidavit was available prior to the filing of the complaint, and that the failure to timely file it was the result of a mistake.

In the case sub judice, Grier-Baxter filed her original complaint on December 30, 1998; however, the expert affidavit filed with the second complaint was dated July 26, 1999. Thus, Grier-Baxter’s failure timely to file an expert affidavit with her original complaint could not have been an excusable mistake as contemplated by OCGA § 9-11-9.1 (e). See Trucano, supra, 215 Ga. App. at 154. “Therefore, plaintiff’s failure to file her expert’s affidavit or a motion for extension of time within 45 days of filing of her complaint, foreclosed her ability to use the renewal provisions contained in OCGA § 9-2-61.” Id. at 154. Because Grier-Baxter’s initial action was void, renewal was not available, and the action was barred by the two-year statute of limitation. OCGA § 9-3-71 (a). See Lyberger, supra, 207 Ga. App. at 846; Austin, supra, 201 Ga. App. at 450. Accordingly, the trial court did not err in granting defendants’ motion for summary judgment.

Decided January 16, 2001.

J. L. Jordan, for appellant.

Hall, Booth, Smith & Slover, M. Glenn Frick, Robert S. Register, for appellees.

Judgment affirmed.

Pope, P. J., and Miller, J., concur.


text:
    A00A2413, A00A2414, A00A2415.
    BROWN v. LIBERTY COUNTY et al. (three cases).
    (544 SE2d 738)
   Mikell, Judge.

Carolyn Brown filed a declaratory judgment action against Liberty County, Liberty County School District, Liberty County Industrial Authority, and Liberty County Hospital Authority (“defendants”) to determine whether her compensation as tax commissioner of Liberty County from January 1, 1993, to March 31, 1998, should have been a salary or a salary plus fees and commissions. The trial court ruled adversely to Brown, and its judgment was affirmed on appeal. She now appeals from three post-judgment orders entered by the trial court.

In Case No. A00A2413, Brown appeals the order compelling her to return to Liberty County funds that she utilized for her legal defense. In Case No. A00A2414, Brown appeals the trial court’s order compelling her to reimburse to defendants monies she utilized to overcompensate herself as tax commissioner. Finally, in Case No. A00A2415, Brown appeals the order sustaining the defendants’ objection to her voluntary dismissal. Since these cases involve the same facts, we consolidate them for disposition on appeal.

“Every court has power to compel obedience to its judgments, orders, and process. . . .” “This court will not undertake to control the wide discretion vested in the trial court in the exercise of this fundamental power unless it is made to appear that wrong or oppression has resulted from an abuse of such discretion reposed in the court.” Having found no abuse of discretion by the trial court, we affirm all of its rulings.

The facts pertinent to this appeal are as follows: Brown was elected to the position of tax commissioner of Liberty County and began serving her term on January 1, 1993. From that time until March 31,1998, she asserted that her compensation should be based on Ga. L. 1975, p. 3862, which provided an annual salary of $7,500, plus fees and commissions. The fees or commissions were based upon the sale of automobile tags in Liberty County and the amount of ad valorem taxes collected, as authorized by OCGA §§ 40-2-33 and 48-5-180.

The defendants did not agree that Brown should collect fees or commissions, in addition to her salary. Instead, they maintained that the amount of her salary was governed by OCGA § 48-5-183. OCGA § 48-5-183 (a) provides: “On and after January 1, 1995, no tax collector or commissioner in a County having a population of 45,000 or more shall be entitled to fees authorized by Code Section 48-5-180 or Code Section 40-2-33.” In addition, OCGA § 48-5-183 (b) (1) sets forth a salary scale fixing the salary for tax collectors and tax commissioners in Georgia according to the population of the County they serve. Brown filed a complaint for declaratory judgment and ancillary relief to resolve the dispute. Defendants answered on October 17, 1997, asserting that OCGA § 48-5-183 controlled.

On June 22, 1998, the defendants amended their answer to include a prayer for relief asking the court to determine, and order Brown to repay, all monies which she had unlawfully retained plus interest. On the same day, the defendants filed a motion for partial summary judgment asking the court to find as a matter of law that Brown’s salary was controlled by OCGA § 48-5-183. The trial court granted the defendants’ motion on September 30, 1998.

Brown appealed the trial court’s grant of summary judgment arguing that OCGA § 48-5-183 was unconstitutionally vague. While awaiting the Supreme Court’s ruling, the parties consented to the jurisdiction of the trial court to rule on the defendants’ writ of obedience and motion to compel obedience. On September 29, 1999, the trial court issued the following consent order: (1) Brown was to allow Liberty County or its duly authorized agents to audit several bank accounts used for county business; (2) until ten days following the remittitur by the Supreme Court, Brown was enjoined from disbursing funds from all but one of the audited accounts and from disposing of any of her assets, and defendants were enjoined from filing any further actions against Brown; (3) the parties were to establish a joint bank account that would be funded by the audited bank accounts and would require signatures of both parties for all disbursements; and (4) Brown was to pay into the joint account funds reimbursed to herself as attorney fees and related litigation costs in the approximate amount of $118,000, the exact amount to be determined pursuant to the audit.

On October 18, 1999, the Supreme Court ruled that OCGA § 48-5-183 was not vague and affirmed the trial court’s grant of partial summary judgment to the defendants. The Supreme Court held that “while Commissioner Brown was authorized to be paid not less than the minimum salary mandated by OCGA § 48-5-183 (b) (1), she was not entitled to any additional fees under OCGA § 40-2-33 or § 48-5-180 as compensation for her service from 1993 through 1998.” Following the remittitur from the Supreme Court, the defendants repeatedly requested that Brown disburse the funds in the joint account to the County treasury. Brown did not comply. On February 17, 2000, the defendants filed a motion to compel obedience to order of the court, to which Brown timely responded. On the next day, February 18, 2000, Brown filed a voluntary dismissal without prejudice, to which the defendants timely objected.

On May 15, 2000, having heard oral argument from all parties, the trial court entered three separate orders. It ordered Brown to pay $199,839.72 to Liberty County as reimbursement for her legal expenses. The trial court also ordered Brown to return $977,877.45, plus interest at a rate of seven percent per annum to Liberty County for her overcompensation. Finally, the trial court sustained the defendants’ objection to Brown’s voluntary dismissal. It is these three orders from which Brown appeals.

Case No. A00A2413

Brown contends that the trial court erred because it was not authorized to determine the amount she owed the County for attorney fees without holding an evidentiary hearing. We disagree for two reasons: Brown did not request an evidentiary hearing, and she consented to the court-ordered audit.

Our review of the record and transcripts before us shows that Brown did not request an evidentiary hearing. “Issues presented for the first time on appeal furnish nothing for us to review, for this is a court for correction of errors of law committed by the trial court where proper exception is taken.” Moreover, Brown’s failure to include in the record on appeal the transcript from the hearing that resulted in the initial order that she reimburse Liberty County for her attorney fees is fatal to her contention. “A party alleging error carries the burden of showing it affirmatively by the record, and when that burden is not met, the judgment is assumed to be correct and will be affirmed.” Accordingly, Brown’s argument that the court should have conducted an evidentiary hearing is without merit.

Brown’s contention that the trial court was not authorized to determine the amount she owed is also without merit. The trial court was so authorized because Brown consented to the court-ordered audit to determine the amount. “One cannot complain of a judgment, order, or ruling that his own procedure or conduct aided in causing, unless it plainly appears that his consent was obtained by fraud or mistake.” Brown agreed to pay at least $118,000 for attorney fees and consented to the audit to determine the exact amount owed.

The affidavit of the auditor, C. T. Lightle, submitted with defendants’ motion to compel, stated that the total amount that Brown reimbursed to herself for legal expenses was $199,839.27. In Brown’s response to defendants’ motion, she did not dispute the auditor’s findings by affidavit or otherwise. Since there was no issue in dispute, we cannot find that the trial court abused its discretion in ordering Brown to comply with its order to pay attorney fees or the amount of those fees.

Case No. A00A2414

On appeal from the trial court’s order that she reimburse the County in the amount of $977,877.45 for fees and commissions she unlawfully retained, Brown raises the same argument, i.e., that the trial court was not authorized to determine the amount of the reimbursement without holding an evidentiary hearing. We disagree for the same reasons set forth above. Brown did not file a request for an evidentiary hearing. She did not orally request an evidentiary hearing during the hearing on defendants’ motion for partial summary judgment on August 27, 1998, or during the hearing on defendants’ motion to compel obedience on May 12, 2000. Since Brown cannot raise on appeal questions she failed to raise below, her argument is without merit.

Moreover, we conclude that the trial court was authorized to order Brown to return the fees and commissions she retained unlawfully. In an action for declaratory judgment, the trial court is authorized to award the petitioner the relief the pleadings and evidence show he is entitled to recover. In Brown’s complaint, she specifically requested that the trial court “direct the parties as to plaintiff’s entitlement to fees, commissions or salaries and direct plaintiff as to the disbursement of funds remaining in her hands and as to the future rights of the parties herein.” Since Brown specifically requested the affirmative relief, she cannot now object to its validity.

There is no dispute that Brown paid herself $977,877.45 in fees and commissions. This amount first appeared in the affidavit of Larry R. Golden, which is attached to defendants’ motion for partial summary judgment. Relying on Golden’s affidavit, the defendants asserted that Brown had paid herself $977,877.45. In support of their assertion, the defendants also cited Brown’s deposition testimony. Brown deposed that during the relevant time, she paid herself commissions in the amount of $664,666.02 on the ad valorem taxes she collected, and fees in the amount of $313,211.43 from the license tag fees she collected.

Brown’s explanation for the fees she paid herself is as follows:

While it is admitted that the figures involved in the present case are large, especially when several years of compensation are placed in one lump sum, it is clear that the compensation claimed by plaintiff is based upon strict compliance with the governing legislation.

Brown also attached the report of Donald Crews, her expert auditor. Crews’ report did not contradict the amount determined by Golden. Accordingly, as there was no dispute as to the amount Brown overcompensated herself, the trial court was authorized to order her to return the funds to Liberty County. We note, also, that since there was no dispute, an evidentiary hearing would have served no purpose.

Our ruling in Weldon v. Bd. of Commrs. of Monroe County also supports the trial court’s authority to determine the amount Brown owed and to order her to pay it. Like this case, Weldon also involved an appeal from a declaratory judgment ruling. Weldon, the tax commissioner of Monroe County, argued that she was entitled to retain license tag fees as compensation. We affirmed the portion of the trial court’s order that Weldon was not entitled to retain the fees. We reversed, however, the portion of the trial court’s order that she did not have to pay the fees she had already collected into the county treasury, but only had to pay those collected “henceforth.” Instead, we remanded to the trial court with direction that it order the plaintiff to reimburse the county for all of the fees she unlawfully retained since taking office. We held: “All such fees . . . were made the property of the County by statute, and Weldon had a legal duty to transfer these fees to the general treasury of the county.” Furthermore, we found that since the defendants’ prayer for relief was actually a request for a declaratory ruling, the trial court could order that the funds be transferred to the County because they were the property of the County as a matter of law. Consequently, we ordered the trial court to take whatever procedural steps it deemed necessary to determine the amount that Weldon owed.

Similarly, the fees and commissions that Brown unlawfully retained are the property of Liberty County. Accordingly, like the tax commissioner in Weldon, Brown has a legal duty to return them. Furthermore, since the prayer for relief in this case was the same as that in Weldon, the trial court is authorized to compel the return of the funds as a matter of law. The only distinction between Weldon and this case is that here, using Weldon as its authority, the trial court took the procedural step it deemed necessary. It ordered, and Brown consented to, an audit to determine the amount Brown owed. Furthermore, in this case, Brown admitted in deposition the amount owed. Therefore, Weldon supports the trial court’s authority to determine the amount of the fees owed and to order Brown to return them.

The only case Brown cites in support of her argument that an evidentiary hearing was required is Fadum v. Liakos. In Fadum, we held “that the right of a defendant in default to force a jury trial on the issue of damages is limited to those instances in which the action is ex delicto or the damages sought are unliquidated.” Fadum is inapposite. It involved an action for damages sought under OCGA § 9-11-55. This case is not an action for damages, but a declaratory judgment wherein the trial court is authorized to award the relief to which the pleadings and evidence show the petitioner is entitled. In this case, the undisputed evidence showed that Brown unlawfully retained fees and commissions in the amount of $977,877.45, which rightfully belonged to Liberty County. Thus, the trial court did not abuse its discretion by ordering her to return the money to its rightful owner.

Case No. A00A2415

Brown argues that the trial court erred by sustaining the defendants’ objection to her voluntary dismissal. OCGA § 9-11-41 (a) provides, in relevant part:

[A]n action may be dismissed by the plaintiff, without order or permission of court, by filing a written notice of dismissal at any time before the plaintiff rests his case. . . . If a counterclaim has been pleaded by a defendant prior to the service upon him of the plaintiff’s motion to dismiss, the action shall not be dismissed against the defendant’s objection unless the counterclaim can remain pending for independent adjudication by the court.

“While a plaintiff is entitled to voluntarily dismiss an action without prejudice despite the inconvenience and irritation to the defendant, this Court . . . has held that a plaintiff may not voluntarily dismiss his complaint after the defendant has filed defensive pleadings seeking affirmative or other relief.” Brown argues that since the defendants did not file a counterclaim, she was entitled voluntarily to dismiss the case. We disagree. In Moore v. Moore, the Supreme Court reversed the trial court’s order that the plaintiff could voluntarily dismiss his case because the defendant had not filed a counterclaim. It held that “a plaintiff may not voluntarily dismiss his complaint after the defendant has filed defensive pleadings seeking affirmative or other relief.” Moore warrants the same result in this case. The defendants here sought affirmative relief in their amended answer.

Decided January 16, 2001.

Johnson, Freeman & Perkins-Hooker, Ronald J. Freeman, Thomas A. Cox, Jr., for appellant.

Jones, Osteen, Jones & Arnold, James N. Osteen, L. Kelly Davis, Alston & Bird, Dow N. Kirkpatrick II, Kenneth D. Steele, Alycia Foggs-Anderson, for appellees.

Brown argues that Moore is distinguishable because the Moore defendant did eventually file a counterclaim. This argument lacks merit. In Moore, the trial court’s decision to disregard the untimely filed counterclaim did not affect the Supreme Court’s decision. Moore reversed the trial court’s grant of dismissal solely because the defendant requested affirmative relief in her defensive pleadings. Brown’s argument that Moore is also distinguishable because it is a divorce case involving different policy considerations than the case at bar also fails. There is no language in Moore that supports Brown’s inference that special treatment was accorded the Moore defendant due to the nature of the case. Accordingly, we affirm the trial court’s order sustaining the defendants’ objection to Brown’s voluntary dismissal.

Judgment affirmed.

Pope, P. J., and Miller, J., concur.

       Frank Bagley, the tax commissioner who preceded Brown, was initially named in the lawsuit, but was subsequently dismissed.

        Brown v. Liberty County, 271 Ga. 634 (522 SE2d 466) (1999).

       OCGA § 15-1-3 (3).

       (Citations omitted.) Young v. Champion, 142 Ga. App. 687, 691 (236 SE2d 783) (1977).

       Brown appealed to this Court, but since her appeal required addressing the constitutionality of OCGA § 48-5-183, the case was within the Supreme Court’s exclusive jurisdiction. Thus, the appeal was transferred to the Supreme Court.

        Brown, supra.

       Id. at 636.

       (Citation omitted.) Lee v. American Central Ins. Co., 243 Ga. App. 759, 761 (1) (a) (530 SE2d 731) (2000).

        Boles v. Lee, 270 Ga. 454, 455 (1) (511 SE2d 177) (1999).

       (Citation omitted.) Mulle v. Yount, 211 Ga. App. 584, 586 (2) (440 SE2d 210) (1993).

        Peavy v. Goodroe, 237 Ga. App. 36, 37 (1) (514 SE2d 699) (1999).

       OCGA § 9-4-3 (a).

       See Rush v. Southern Property Mgmt., 121 Ga. App. 360 (173 SE2d 744) (1970) (despite no authority to do so by statute, the court ordered the affirmative relief requested by the plaintiff).

       In his affidavit, Golden states that he has served as an auditor for Liberty County since 1972.

       The sum of these figures is $977,877.45.

       Crews deposed that OCGA § 48-5-183 did not apply to Brown, and based on his review of records he received from her, she paid herself at least $823,052 in fees.

       But see Cole v. Smith, 182 Ga. App. 59, 63 (3) (354 SE2d 835) (1987) (declaratory judgment action remanded for an evidentiary hearing on damages where there was no evidence as to the amount of damages and the trial-court relied on the fact that the defendant defaulted).

       212 Ga. App. 885 (443 SE2d 513) (1994), cert. denied, 212 Ga. App. 897 (1994).

        Weldon, 212 Ga. App. at 889 (4).

       Id.

       Id.

       In their prayer for relief, the Weldon defendants asked the court to order petitioner to pay respondent any and all fees which petitioner had unlawfully retained. Id. at 889 (4).

       Id.

       Id.

       186 Ga. App. 556 (367 SE2d 843) (1988).

       Id. at 558 (3).

       OCGA § 9-4-3 (a).

       (Citations and punctuation omitted.) Avnet, Inc. v. Wyle Labs., 265 Ga. 716, 717-718 (1) (461 SE2d 865) (1995).

       253 Ga. 211 (317 SE2d 529) (1984).

       Id. at 212.

       Pursuant to OCGA § 9-11-15 (a), a party may amend its pleading without leave of court at any time before the entry of a pretrial order. The amendment relates back to the date of the original pleading. OCGA § 9-11-15 (c). There is no allegation in this case the amendment was untimely.


text:
    A00A2530.
    In the Interest of D. S. et al., children.
    (545 SE2d 1)
   Mikell, Judge.

Appellant, the natural mother of D. S. and R. S., appeals from the termination of her parental rights. She challenges the sufficiency of the evidence. For the reasons set forth, we affirm the termination order of the juvenile court.

In considering a challenge to the sufficiency of the evidence in a termination of parental rights case, we review the evidence in the light most favorable to the judgment of the juvenile court and determine whether any rational trier of fact could have found by clear and convincing evidence that the natural parent’s rights have been lost. In the Interest of A. D., 243 Ga. App. 727, 728 (534 SE2d 457) (2000); In the Interest of D. B., 242 Ga. App. 763 (531 SE2d 172) (2000).

So viewed, the record shows that D. S. and R. S. were removed from appellant’s custody for the first time in 1997, and that they were returned to her on the condition that the Murray County Department of Family & Children Services (the “Department”) monitor the family’s situation. The Department regained legal custody of the children in August 1998, and they have not been in their mother’s custody since that time. The children are currently living with foster parents. The Department developed a reunification plan for appellant in which she was required to meet the following goals: pay child support in the amount of $10 per week per child; attend mental health counseling and take all prescribed medications; develop her parenting skills by attending classes and viewing certain videos; obtain steady employment; maintain a safe and stable home; and visit the children regularly.

On August 9, 1999, the Department filed a petition to terminate the parental rights of appellant and the children’s father. Following a hearing, the juvenile court entered an order terminating the father’s rights and granting appellant a short amount of additional time to meet her goals of reunification.

The Department filed another petition for termination of appellant’s parental rights on January 17, 2000, due to her failure to meet the required goals. The court conducted a hearing on April 25, 2000, when it heard witness testimony and took judicial notice of all of its prior orders in the case and of the reports of the judicial citizens review panel.

At the hearing, Ruby Slack, the Department caseworker assigned to appellant’s case, testified that the Department recommended the termination of appellant’s parental rights because she had not complied with her reunification goals and because the children would be adversely affected if they remained in their current situation. Slack further testified that appellant had made only one child support payment of $20 in the 12-month period prior to the termination of her parental rights, despite the fact that she sold a home for $17,000 and was earning $10 per hour; that appellant did not attend required mental health counseling and had not taken her prescribed medication for treatment of an attention deficit hyperactivity disorder; that she failed to provide documentation of her enrollment in her employer’s health insurance plan; that she demonstrated poor financial management skills; and that she had been employed since October 1999, but not consistently in the same job.

According to Slack, appellant’s residence was not a suitable home for the children. Slack testified that when she visited the residence in January 2000, she observed bare mattresses on the floor, an odor of raw sewage, and beer and liquor bottles, despite appellant’s prior history of alcohol abuse. Additionally, the refrigerator and one of two toilets in the residence were not working properly.

Slack acknowledged that appellant had attended the required parenting classes and had viewed the videos; however, she raised concerns about appellant’s parenting skills. Specifically, Slack testified that appellant did not demonstrate nurturing behavior during her visits with the children every two weeks, and that she allowed the children, ages four and six, to use public restrooms unattended. Slack reported that appellant had not bonded with the children, and that the children generally exhibited little emotion at the end of their visits with their mother.

D. S. and R. S. were placed with their maternal grandmother from October 1999 to February 2000. Slack testified that at the time of the hearing in April, the children had been in the same foster placement for over two months, and that their foster parents wished to adopt them. According to Slack, the children were doing very well and seemed happy in their current placement.

Appellant’s mother, Dianne Hayes, testified at the hearing that when D. S. and R. S. were in her care, appellant visited them sporadically and either talked on the telephone or watched television during the visits. According to Hayes, appellant “didn’t spend good quality time hugging, talking, reading to them, doing things that would have been good for the kids and good to have those times together. . . . She just doesn’t have that ability normally.” Hayes further testified that her daughter had not taken her medication regularly during the six months prior to the hearing and opined that if the children were returned to appellant, they would not be safe in her care. Hayes spoke enthusiastically about the children’s current placement with their foster parents and testified that R. S. had made “unbelievable” progress in speech therapy, and that both children had improved socially and academically.

Sandra Ellis, the paternal grandmother of two of appellant’s other children, Cal. E. and Car. E., testified that she had continuously had custody of her grandchildren for over seven years. Ellis testified that appellant rarely visited Cal. E. and Car. E.; that she expressed little interest in them; and that she was not capable of caring for young children.

At the hearing, appellant admitted that the juvenile court had already given her an opportunity to comply with the reunification goals, and that she understood that her failure to comply could result in the termination of her parental rights. The guardian ad litem recommended that the court terminate appellant’s parental rights. Based on the evidence and the recommendations of the Department and the guardian ad litem, the juvenile court entered an order terminating appellant’s parental rights on May 2, 2000.

The statutory criteria for the termination of parental rights are the two-step procedure provided in OCGA § 15-11-94 (a). The first step requires a finding of parental misconduct or inability, which requires clear and convincing evidence that: (1) the child is deprived; (2) lack of proper parental care or control is the cause of the deprivation; (3) such cause of deprivation is likely to continue; and (4) the continued deprivation will cause or is likely to cause serious physical, mental, emotional, or moral harm to the child. OCGA § 15-11-94 (a), (b) (4) (A) (i)-(iv). If these four factors are satisfied, the court must then determine whether termination of parental rights is in the best interest of the child, considering the child’s physical, mental, emotional, and moral condition and needs, including the need for a secure and stable home. OCGA § 15-11-94 (a); In the Interest of D. B., supra, 242 Ga. App. at 763-764; In the Interest of A. M. V., 222 Ga. App. 528, 529 (474 SE2d 723) (1996).

With regard to the first step, we conclude that a rational trier of fact could have found that the four factors demonstrating appellant’s parental misconduct or inability were satisfied by clear and convincing evidence. First, D. S. and R. S. were taken into custody by the Department in August 1998 based on a determination of deprivation. Appellant failed to appeal the initial deprivation order. “Therefore, appellant is bound by this finding of deprivation and the first factor is satisfied.” In the Interest of E. C., 225 Ga. App. 12, 15 (482 SE2d 522) (1997). See also In the Interest of J. M. D., 221 Ga. App. 556, 558 (472 SE2d 123) (1996). Furthermore, even absent the prior determination of deprivation, the evidence summarized above provides clear and convincing evidence that the children were deprived.

The second factor, that lack of proper parental care or control caused the deprivation, has also been satisfied. OCGA § 15-11-94 (b) (4) (C) provides that when the children are not in the custody of the natural parent, the court may consider whether the parent without justifiable cause has failed significantly for a period of one year or longer to develop and maintain a parental bond with the child, to provide for the care and support of the child, and to comply with a court-ordered reunification plan. The evidence summarized above clearly supports a finding that appellant has failed to develop a bond with the children, to support them, or to comply with the goals of her reunification plan. Thus, the juvenile court properly found that lack of proper parental care or control caused the children’s deprivation.

Decided January 16, 2001.

James E. Wilbanks, for appellant.

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

Likewise, the third factor, whether the cause of the deprivation is likely to continue, is satisfied by the record. OCGA § 15-11-94 (b) (4) (A) (iii). The court may consider past conduct of the parent in making its determination that such conditions of deprivation are likely to continue. In the Interest of C. W. D., 232 Ga. App. 200, 204 (501 SE2d 232) (1998). “Such an inference is appropriate, since the juvenile court is not required to reunite [D. S. and R. S.] with appellant in order to obtain current evidence of deprivation or neglect.” In the Interest of E. C., 225 Ga. App. at 16. Appellant’s refusal to obtain mental health treatment, lack of interest in her children, lack of basic parenting skills, inability to bond with her children, and failure to comply with her reunification goals demonstrate that the same pattern of deprivation would likely continue if D. S. and R. S. were reunited with their mother. In the Interest of J. M. S. M., 240 Ga. App. 294, 296 (523 SE2d 357) (1999).

That same evidence supports a finding that continued deprivation would cause serious physical, mental, or moral harm to the children. In the Interest of K. L., 234 Ga. App. 719, 722 (507 SE2d 542) (1998); OCGA § 15-11-94 (b) (4) (A) (iv). Thus, the fourth factor in determining parental misconduct or inability has been satisfied.

Finally, the court’s conclusion that termination of parental rights is in the best interests of the children is supported by clear and convincing evidence. OCGA § 15-11-94 (a). “Those same factors which show the existence of parental misconduct or inability can also support a finding that the termination of parental rights of the defaulting parent would be in the child’s best interest.” (Citation and punctuation omitted.) In the Interest of C. N. H., 238 Ga. App. 50, 53-54 (2) (517 SE2d 589) (1999). The ample evidence of appellant’s parental inability coupled with evidence that D. S. and R. S. are thriving in their foster home supports the determination that termination of appellant’s parental rights is in the best interests of the children.

Judgment affirmed.

Pope, P. J., and Miller, J., concur.

       The procedure was previously codified at OCGA § 15-11-81 (a).