text:
    A01A1288.
    SUN-PACIFIC ENTERPRISES, INC. v. GIRARDOT et al.
    (553 SE2d 638)
   Mikell, Judge.

Based on written and oral representations made by defendant Sun-Pacific Enterprises, Inc., through its agent Joseph Sunn, that lot 1 in the Costa Lanier subdivision bordering Lake Lanier would be conveyed to the homeowners’ association for community use, plaintiffs Steven and Mary Christine Girardot purchased lots 2 and 3 and built their dream home. Sun-Pacific then razed a portion of lot 1 and listed it for sale. The Girardots filed suit for injunctive relief, actual damages, and attorney fees. Sun-Pacific demanded a jury trial but failed to produce any witnesses. The jury awarded the Girardots $16,000 in damages. The trial court granted a permanent injunction prohibiting Sun-Pacific from conveying the lot to any entity other than the homeowners’ association. Sun-Pacific’s motions for new trial and judgment notwithstanding the verdict were denied, and the trial court awarded the Girardots $19,711.13 in attorney fees. Sun-Pacific appeals, and we affirm.

As Sun-Pacific failed to present any evidence, the salient facts are uncontroverted. Mr. Girardot and two additional homeowners testified at trial that during their first meeting with Sunn, he provided them with a price list and a plat for the subdivision. “TENNIS COURT” and “LOT FOR SWIMMING POOL” were written within the boundary lines of lot 1 on the plat. Although the price list stated a price of $35,000 for lot 1, it also indicated that “lot 1. . . will not be built.” Girardot testified that when he asked Sunn why a price was listed for lot 1, Sunn stated that the price reflected the value of the lot and was intended to be used as a marketing tool. Sunn told Girardot that lot 1 would be transferred to the homeowners’ association, which would be responsible for constructing the amenities.

According to Girardot, Sunn stated that the lot would be conveyed to the homeowners for two primary reasons: to provide a swim dock for the community, and to act as a buffer from a busy road that dead-ends into a federal campground. Sunn explained that Sun-Pacific had obtained a permit for a community swim dock for lot 1 because not all the lots in the subdivision would qualify for a dock permit. Girardot also testified that Sunn stated that it would be difficult to build a residence on lot 1 because it contained a large retention pond, and because it was too narrow to support a driveway accessible from the subdivision.

At their next meeting, Girardot testified, Sunn confirmed that Sun-Pacific had obtained a dock permit for lot 1 and that such dock access provided a “big incentive” to prospective purchasers in the subdivision. During the third meeting, Girardot expressed his interest in purchasing lots 2 and 3 based on the privacy lot 1 would provide. The two men walked the lots together, and Sunn pointed out the “ideal location” for Girardot’s house: on lot 2, less than 20 feet away from lot 1. Girardot testified that Sunn again “assured” him lot 1 would not be built upon and that his home would have “this buffer of all the trees here.”

Satisfied with these assurances, Girardot negotiated a price of $59,000 for the two lots. On August 5, 1996, the parties executed a sales contract that contained the following merger clause: “This contract constitutes the sole and entire agreement between parties hereto and no modification of this contract shall be binding unless attached hereto and signed by all parties to this agreement. No representation, promise, or inducement not included in this contract shall be binding upon any party hereto.” Lot 1 was not mentioned in the contract, nor at the closing, which took place in September 1996.

Pursuant to a special stipulation in the parties’ contract, Sunn cleared the trees from Girardot’s home site approximately five weeks after closing. At that time, the parties discussed the fact that the retention pond on lot 1 extended onto a portion of Girardot’s property. Girardot testified that the pond was approximately 100 feet wide and 15 to 20 feet deep. Sunn informed Girardot that he would be “required” to fill in the entire pond, as leveling only the portion on his lots would cause excessive drainage problems for the “community” lot. Girardot utilized dirt excavated from his property and an additional 35-40 dump truck loads, filled in the entire pond, and graded the site. This project took Girardot three to four days to complete.

In November 1997, when Girardot’s home was nearly finished, Sunn cleared 100 to 150 trees from lot 1. When Girardot reminded Sunn of his promise, he said it was “too bad.” Girardot then contacted Sun-Pacific’s president in Canada and was informed that the company had changed its mind about dedicating lot 1 to the community. Sunn threatened to destroy the remaining trees unless Girardot paid Sun-Pacific $35,000 for lot 1. Girardot refused and filed a complaint against Sunn and Sun-Pacific, asserting three counts: injunctive relief, fraud, and breach of the agreement to refrain from developing lot 1. Girardot asserted a promissory estoppel theory, claiming that Sun-Pacific was estopped from developing lot 1 in breach of its promise.

The trial court granted summary judgment to Sunn on all counts and to Sun-Pacific on the fraud claim. The case proceeded to trial on the remaining claims, and the court framed the issues as whether Sun-Pacific and Sunn expressly or impliedly restricted the uses of lot 1, and whether they were bound by their written or oral representations.

The jury found that Sun-Pacific should be ordered to keep its promise to appellees not to convey lot 1 to any entity other than the homeowners’ association, not to build on lot 1, and not to clear any timber from lot 1. The jury also awarded appellees $16,000 for the purpose of restoring lot 1 to its original condition. Judgment for $16,000 and a permanent injunction were entered. The trial court granted appellees $19,711.13 in attorney fees.

1. Sun-Pacific enumerates as error the denial of its motions for a directed verdict and j.n.o.v. on the Girardots’ promissory estoppel claim. We find no error.

For the Girardots to prevail, they were required to show that (1) Sun-Pacific made certain promises; (2) Sun-Pacific should have expected the Girardots to rely on those promises; (3) the Girardots did in fact rely on those promises to their detriment; and (4) injustice could be avoided only by enforcement of the promises.

Since promissory estoppel is an equitable doctrine, the third element is one of reasonable reliance. Sun-Pacific argues on appeal, as it did in its motion for j.n.o.v., that the merger clause in the parties’ contract precluded the Girardots from establishing reasonable reliance on Sunn’s pre-contractual promises as a matter of law. However, the record reveals that Sun-Pacific did not move for a directed verdict on this ground. The only grounds asserted in Sun-Pacific’s motion for a directed verdict were that Sunn’s promises were unenforceable under the statute of frauds and that the evidence failed to show estoppel by representation.

“A motion for a directed verdict shall state the specific grounds therefor.” OCGA § 9-11-50 (a). “By the great weight of authority, one appealing the denial of a motion for directed verdict may not raise for the first time on appeal a ground not specifically raised in the original motion.”

OCGA § 9-11-50 (b) allows the device of a motion for judgment notwithstanding the verdict to be used when a motion for directed verdict does not end a trial and it proceeds to verdict. It is narrow, however, and does not permit reopening the case for new legal issues which are thought of retrospectively, with hindsight. It provides ... a post-verdict opportunity for a determination of the legal questions raised by the motion (for a directed verdict). If upon reflection the trial judge determines that the motion for directed verdict was valid, the judge is to set aside the verdict and the original judgment and enter a new judgment in accordance with the motion for directed verdict. It is patent, then, that the j.n.o.v. must be based on grounds raised in the motion for directed verdict initially, for it is in effect only a new ruling on a renewed motion.

“Grounds asserted in a motion for j.n.o.v. but not in the motion for directed verdict are not considered on appeal either.” Accordingly, we do not address this issue on appeal.

Even if we were to consider Sun-Pacific’s contentions that Sunn’s promises did not survive the closing, Sun-Pacific still would not prevail. In denying Sun-Pacific’s motion for j.n.o.v., the court found that Slum’s promises did not merge into the contract because Sunn continued to make the same representations after the closing. The uncontroverted evidence demonstrates that several weeks after the closing, Sunn requested that Girardot fill in the retention pond on lot 1 for the benefit of the community. This evidence that Sun-Pacific’s agent made representations subsequent to the execution of the agreement on which the Girardots relied to their detriment distinguishes the instant case from the authorities cited by Sun-Pacific. Moreover, Gerdes v. Russell Rowe Communications, in which we rejected a promissory estoppel claim based on post-contractual promises, is distinguishable. There, we held that an employee could not reasonably rely upon his employer’s alleged post-contractual oral promises to pay him a commission that exceeded the percentage specified in his written agreement. In the instant case, Sunn’s promise not to develop lot 1 did not contradict any term in the Girardots’ contract. Accordingly, Gerdes is inapplicable.

2. We now address the grounds raised by Sun-Pacific in its motion for a directed verdict. First, Sun-Pacific contended that Sunn’s promises were unenforceable under the statute of frauds. However, the Supreme Court has rejected the argument that the statute of frauds bars a promissory estoppel claim.

It is readily apparent that the claim based on promissory estoppel is closely related to a fraud claim, and it is argued by defendant that the requirement of an enforceable promise should be deemed to be as applicable to the promissory estoppel claim as it is to a fraud claim. Nonetheless, defendant acknowledges the decision in 20/20 Vision Center v.
Hudgens, 256 Ga. 129 (345 SE2d 330) [(1986)] which clearly states a contrary holding, that is, that where a purported contract was not enforceable, such did not preclude a claim predicated on a theory of promissory estoppel. This Supreme Court decision is indistinguishable and binding precedent on this point.

In 20/20 Vision Center v. Hudgens, the Supreme Court held that promissory estoppel allows enforcement of a promise that would otherwise be unenforceable under the statute of frauds. As the Eleventh Circuit has commented: “Promissory estoppel is an equitable doctrine désigned to prevent .the intricacies and details of the law from frustrating the ends of justice.” It follows that the trial court properly denied Sun-Pacific’s motions for a directed verdict and j.n.o.v. on this ground.

Sun-Pacific next contended that Sunn’s promises were unenforceable because they related to future events, citing Lowry v. Norris Lake Shores Dev. Corp. Lowry, however, is distinguishable. In that case, homeowners contended that the developer of the subdivision in which they resided had orally promised to furnish them water at a permanently fixed price of $10 per quarter. Evidence showed that the fixed-price policy was discontinued because residents abused it. We held that the evidence “[fell] short of creating an equitable estoppel or any contractual obligation on the part of the appellee to furnish water to appellants for any specific period of time at a designated rate.” We therefore affirmed the grant of summary judgment to the developer. Here, in contrast, a jury determined that the developer’s agent made promises which the developer should be obligated to honor. “Under OCGA § 9-11-50 (b), a j.n.o.v. can properly be granted only when the evidence demands a verdict contrary to that returned by the jury. Only if no evidence supports the jury’s verdict is a grant of j.n.o.v. proper.” As evidence supports the jury’s verdict, the trial court did not err in refusing to grant a directed verdict on this basis.

Finally, Sun-Pacific contends that the trial court erred in relying on Knotts Landing. We disagree. In Knotts Landing, a subdivision developer had orally promised to restrict an adjacent, vacant tract of land to single-family residential use. When the developer had the tract zoned for commercial use, the residents sought an injunction. The Supreme Court ruled that evidence that the developer’s promises induced the plaintiffs to purchase property in the subdivision created an issue of fact on their promissory estoppel claim.

The Court also reiterated the test for implying restrictions upon the use of land:

Parties may . . . take actions from which courts will imply an agreement to restrict the uses allowed upon a tract of land. The party wishing to enforce a non-express agreement must, of course, establish the area covered by the agreement and the specific content of the restrictions alleged. This is usually accomplished by showing a common grantor’s general scheme or plan for developing the property in question.

In Knotts Landing, the plat restricting the property to residential use was held insufficient to imply an agreement because the plat was never shown to any prospective purchaser or otherwise used in marketing the lots. In the instant case, the uncontroverted evidence established that Sunn showed prospective purchasers a plat map and price list for the specific purpose of inducing them to purchase property. Accordingly, the trial court correctly relied on Knotts Landing in denying Sun-Pacific’s motion for a directed verdict.

Sim-Pacific attempts to distinguish Knotts Landing because that decision did not address the effect of a merger clause on a promissory estoppel claim. However, in its motion for directed verdict, Sun-Pacific contended that the instant case involved conveyance of title to land rather than restrictions implied upon the use of land. No other reason was offered for distinguishing Knotts Landing. In any event, no such distinction exists. Here, Sun-Pacific was not ordered to convey the property to any entity; rather, it was enjoined from transferring title to any entity other than a homeowners’ association.

3. Sun-Pacific finally asserts that the trial court abused its discretion in granting the Girardots’ motion for attorney fees pursuant to OCGA § 9-15-14 (b). We disagree.

The statute permits the court to award attorney fees if it finds “that an attorney or party brought or defended an action, or any part thereof, that lacked substantial justification or that the action, or any part thereof, was interposed for delay or harassment, or if it finds that an attorney or party unnecessarily expanded the proceeding by other improper conduct.” Sun-Pacific argues that it was justified in defending the action because of the dearth of authority concerning the effect of a merger clause on a promissory estoppel claim. However, Sun-Pacific ignores the fact that it initially disputed the promises made to the Girardots, demanded a jury trial, and then failed to produce a witness to contradict the plaintiffs’ testimony. Based on these facts, we cannot say that the court abused its discretion in assessing attorney fees against Sun-Pacific.

Decided August 7, 2001.

Schreeder, Wheeler & Flint, David H. Flint, Nathan M. Wheat, Timothy C. Batten, for appellant.

Mark A. Baker, for appellees.

Judgment affirmed.

Blackburn, C. J., and Pope, P. J., concur.

       At trial, defense counsel represented to the court that Joseph Sunn, Sun-Pacific’s agent, declined to appear because he had a prior conviction in federal district court.

       The lots had been listed for a total price of $90,000.

       The court based its theory of the case on Knotts Landing Corp. v. Lathem, 256 Ga. 321 (348 SE2d 651) (1986), in which the Supreme Court held that a subdivision developer’s oral promises to restrict a tract of land to residential use could be enforced under a promissory estoppel theory.

        Doll v. Grand Union Co., 925 F2d 1363 (11th Cir. 1991); Insilco Corp. v. First Nat. Bank, 248 Ga. 322 (1) (283 SE2d 262) (1981); Canterbury Forest Assn. v. Collins, 243 Ga. App. 425 (532 SE2d 736) (2000); Ambrose v. Sheppard, 241 Ga. App. 835, 836 (528 SE2d 282) (2000). The claim is codified at OCGA § 13-3-44 (a): “A promise which the promisor should reasonably expect to induce action or forbearance on the part of the promisee or a third person and which does induce such action or forbearance is binding if injustice can be avoided only by enforcement of the promise. The remedy granted for breach may be limited as justice requires.”

        Ambrose v. Sheppard, supra, 241 Ga. App. at 836.

       See, e.g., Estate of Farkas v. Clark, 238 Ga. App. 115, 118 (1) (517 SE2d 826) (1999) (a merger clause “estop [s] a party bound by the terms of the contract from arguing that he or she relied on representations other than those contained in the contract”).

       The only instance in which Sun-Pacific asserted that the promises did not survive the closing was in colloquy with the court during the cross-examination of Girardot, who was the first of three witnesses.

       See Lowry v. Norris Lake Shores Dev. Corp., 231 Ga. 547, 549 (203 SE2d 169) (1974).

       (Punctuation and footnote omitted.) Magnus Homes v. DeRosa, 248 Ga. App. 31, 33 (2) (545 SE2d 166) (2001).

       (Punctuation omitted.) Dee v. Sweet, 218 Ga. App. 18, 21 (2) (b) (460 SE2d 110) (1995), citing Famiglietti v. Brevard Med. Investors, 197 Ga. App. 164, 166-167 (2) (397 SE2d 720) (1990).

        Famiglietti, supra.

       See First Data POS v. Willis, 273 Ga. 792 (546 SE2d 781) (2001) (“in an arm’s length business transaction, pre-contractual representations are superceded by a valid contractual merger clause, and cannot form the basis of post-contractual claims of theft by deception, fraud, or misrepresentation”); W. R. Grace & Co. v. Taco Tico Acquisition Corp., 216 Ga. App. 423, 426 (1) (454 SE2d 789) (1995) (denial of a motion for a directed verdict on a promissory estoppel claim based on representations in pre-contractual negotiations reversed).

       232 Ga. App. 534 (502 SE2d 352) (1998).

       We have also held that oral promises that do not vary the terms of the parties’ written contract may be enforceable as a collateral agreement and thus not defeated by a merger clause. See, e.g., Brannen/Goddard Co. v. Collin Equities, 227 Ga. App. 352, 354 (489 SE2d 106) (1997).

       OCGA § 13-5-30 (4), (5).

        Kamat v. Allatoona Fed. Sav. Bank, 231 Ga. App. 259, 263 (3) (498 SE2d 152) (1998) (grant of summary judgment to bank/lender on promissory estoppel claim reversed).

       Supra, 256 Ga. at 135 (7).

        Doll v. Grand Union Co., supra, 925 F2d at 1373.

       Supra, 231 Ga. at 549.

       Id.

       (Emphasis in original.) Mark Six Realty Assoc. v. Drake, 219 Ga. App. 57, 58 (1) (463 SE2d 917) (1995).

       Supra, 256 Ga. 321.

       Id. at 323 (2). The test is not new. It has been previously held that “restrictions under a general plan adopted by the owner to sell lots may in equity be imposed on the land beyond the express restrictions contained in the deed to the purchaser, on the theory of implied covenants. . . (Citation and punctuation omitted.) Jones v. Lanier Dev. Co., 190 Ga. 887, 889 (3) (11 SE2d 11) (1940).

       Supra, 256 Ga. at 323 (2) (c).

       OCGA § 9-15-14 (b).

       See, e.g., Hipple v. Simpson Paper Co., 234 Ga. App. 516, 518-519 (5) (507 SE2d 156) (1998).


source: Caselaw Access Project

author: Mikell, Judge.

license: Public Domain

text:
    A01A1450, A01A1451.
    BRYANT v. THE STATE (two cases).
    (553 SE2d 629)
   Mikell, Judge.

On November 9, 1999, Roy Bryant pled guilty to one count of theft by shoplifting and one count of giving a false name to a law enforcement officer. The trial court sentenced him to ten years, twenty-four months of which he was to serve in confinement, with the balance on probation, and to twelve months probation to run concurrently for the second offense.* The trial court suspended Bryant’s confinement period conditioned upon his entry into and successful completion of the Residential Substance Abuse Treatment (“RSAT”) inpatient and aftercare programs. After Bryant’s second probation revocation hearing, the trial court revoked four years of his probationary sentence. Bryant appeals, arguing that pursuant to OCGA § 42-8-34.1, the trial court was only authorized to revoke a maximum of two years of his sentence because he did not commit a subsequent felony or violate a special condition of his probation. Bryant argues in his second enumeration of error that the order to complete the RSAT program was not a special condition of his probation. We disagree and find that completion of the RSAT program was a special condition of Bryant’s probation, warranting the imposition of the sanction authorized by OCGA § 42-8-34.1 (c). In doing so, we address simultaneously Bryant’s enumerations of error.

The record shows that on May 17, 2000, the probation department moved to revoke Bryant’s probation after he was removed from the RSAT program because he stabbed a classmate with a pencil. Bryant admitted that the confrontation occurred, except he claimed that he used a pen with a cap on it, which only punctured his classmate’s skin. The trial court reinstated Bryant’s probation, reimposed the condition that Bryant complete the RSAT program and added the condition that Bryant live in a halfway house during RSAT aftercare. The probation department filed a second petition to revoke Bryant’s probation on November 3, 2000, after he was expelled from the program for violent behavior. Again, he admitted his involvement in the confrontation. In response thereto, the trial court revoked four years of Bryant’s probationary sentence.

OCGA § 42-8-34.1 provides, in relevant part:

(b) At any revocation hearing, upon proof that the defendant has violated any provision of probation or suspension other than by commission of a new felony offense, the court shall consider the use of alternatives to include community service, intensive probation, diversion centers, probation detention centers, special alternative incarceration, or any other alternative to confinement deemed appropriate by the court or as provided by the state or county. In the event the court determines that the defendant does not meet the criteria for said alternatives, the court may revoke the balance of probation or not more than two years in confinement, whichever is less, (c) If the violation of probation or suspension alleged and proven by a preponderance of the evidence or the defendant’s admission is the commission of a felony offense or the violation of a special condition imposed pursuant to this Code section, notwithstanding any other provision of law, the court may revoke no more than the lesser of the balance of probation or the maximum time of the sentence authorized to be imposed for the crime constituting the violation of the probation.

Bryant urges the application of subsection (b); however, we find that the trial court’s reliance on subsection (c) to revoke four years of Bryant’s probation was appropriate.

Decided August 7, 2001.

Jane C. Watson, for appellant.

J. Tom Morgan, District Attorney, Jeanne M. Canavan, Noah Pines, Assistant District Attorneys, for appellee.

In Chatman v. Findley, a habeas proceeding, our Supreme Court held: “For purposes of imposing the harsher consequences authorized by subsection (c), the violation of any new special condition imposed in a previous revocation proceeding or any original condition reimposed therein is deemed to be a violation of a ‘special condition imposed pursuant to’ OCGA § 42-8-34.1.” In this case, Bryant’s successful completion of the RSAT program was imposed as a special condition during his original sentencing. In the first probation revocation proceeding, the trial court reimposed the condition that Bryant complete the RSAT program. Thus, when the second probation revocation proceeding occurred, wherein Bryant again admitted to violent behavior, the trial court was authorized to revoke the remainder of Bryant’s probation.

Bryant relies upon Dunlap v. State and McCoy v. State to support his argument that the RSAT program was not a special condition of his probated sentence. However, both cases are distinguishable. In each case, we found that the trial court’s revocation of more than two years of the defendants’ sentences was erroneous because the condition that the defendants violated was imposed during their original sentencing hearings, rather than pursuant to OCGA § 42-8-34.1. Here, as stated earlier, the condition that Bryant complete the RSAT program was a special condition reimposed pursuant to OCGA § 42-8-34.1. Accordingly, the trial court did not err when it revoked four years of Bryant’s probated sentence. Consequently, we affirm.

Judgment affirmed.

Blackburn, C. J., and Pope, P. J., concur.

       Bryant had 13 prior felony convictions.

       274 Ga. 54 (548 SE2d 5) (2001).

       Id. at 56.

       231 Ga. App. 82 (497 SE2d 640) (1998).

       246 Ga. App. 623 (541 SE2d 444) (2000).


author: Phipps, Judge.

text:
    A01A1018.
    SWAIN v. THE STATE.
    (552 SE2d 880)
   Phipps, Judge.

On the night of January 20, 2000, Carol Swain’s car crossed the centerline of traffic and collided head-on with another vehicle. She was charged with DUI to the extent she was a less safe driver, and a jury later found her guilty. On appeal, Swain asserts that the trial court erred in admitting evidence that she refused to consent to a blood test for the presence of alcohol because an administrative law judge (ALJ) already had ruled at her driver’s license suspension hearing that she did not refuse testing. She also argues that the trial court should have charged the jury that the smell of alcohol, alone, is insufficient to prove intoxication. Because the ALJ’s finding had no preclusive effect in her criminal trial, and because Swain’s requested jury charge did not fit the evidence, we affirm.

1. A motorist in Georgia who is suspected of driving under the influence of alcohol and who is asked to submit to a blood test for the presence of alcohol has the right to refuse the test, and the arresting officer must inform her of that right. If she refuses to submit to the test, the Department of Public Safety may suspend her driver’s license for a minimum of one year. Moreover, evidence of her refusal may be admitted at a subsequent DUI prosecution, but only if she was properly informed of her right to refuse.

In this case, the State sought to introduce testimony from the arresting officer that he asked Swain to submit to a test of her blood for the presence of alcohol, that he informed her of her right to refuse, and that she refused. Swain moved in limine to exclude this testimony, arguing that the issue of her refusal already had been decided by an ALJ at her driver’s license suspension hearing. At a pretrial hearing, Swain introduced into evidence a copy of the ALJ’s decision, which reversed her license suspension and found that

[a] 11 provisions were not met for the suspension ... as to [Swain] inasmuch as the [Department of Public Safety] failed to establish that . . . [a]t the time of the request for the test or tests, the arresting officer properly informed [Swain] of [her] implied consent rights and the consequences of submitting or refusing to submit to such test or tests.

The trial court ruled that the ALJ’s decision had no preclusive effect and that evidence of Swain’s alleged refusal to submit to testing could be admitted at trial. We agree.

We have been asked several times to give preclusive effect in a criminal DUI prosecution to a judgment previously rendered at an administrative driver’s license suspension hearing. Each time, we have refused. In Sheffield v. State the defendant sought to exclude evidence that he had refused a breath test on the ground that the Department of Public Safety’s administrative action to suspend his driver’s license had been dismissed. The defendant argued that the dismissal “rendered any evidence of his refusal inadmissible because to admit it would deny due process and equal protection, would constitute double jeopardy, [and] would constitute res judicata.” Two judges of this court disagreed, noting that the license suspension action had been dismissed because the arresting officer had failed to appear for the hearing. Thus, “[t]here was no determination at the administrative hearing that defendant did or did not refuse the test.” In addition, the Sheffield opinion noted that because the suspension proceedings were civil in nature, “their outcome does not control the admissibility in the criminal trial of evidence of refusal [to consent to testing].”

In Hunter v. State, the DUI defendant sought to introduce into evidence a letter from an administrative hearing officer stating, without explanation, that the defendant’s “driver’s license will not be suspended under the Implied Consent Law.” The defendant argued that the letter showed he did not refuse testing, but we affirmed the trial court’s exclusion of the letter. We held:

The letter proved only that the license suspension was withdrawn. It shed no light on whether defendant had refused the test; it did not contradict the evidence that he had. . . . Even if the doctrine [of collateral estoppel] applies to administrative license suspension hearings as related to D.U.I. criminal proceedings, the letter fell short of fulfilling the requirements for invoking the doctrine.

Finally, in Wyatt v. State, we ruled that evidence that the defendant’s driver’s license had not been suspended due to the arresting officer’s failure to appear at the hearing was not relevant in his later DUI prosecution. We wrote that “[w]hat occurred at the administrative hearing subsequent to appellant’s arrest would have no bearing on whether or not he was driving under the influence of alcohol,” which was the issue before the jury.

This case differs in one important respect from Sheffield, Hunter, and Wyatt. The license suspension hearings in those cases did not result in decisions on the merits. Here, however, an evidentiary hearing was held, after which the ALJ made a specific finding that the State failed to show that the officer had properly informed Swain of her implied consent rights. Thus, this case squarely presents the question — as our previous cases did not — of whether preclusive effect should be given in a criminal DUI prosecution to administrative factfinding from a previous driver’s license suspension hearing. We hold that there was no preclusive effect in this case.

Under Georgia law, administrative decisions may have a collateral estoppel effect in a subsequent judicial proceeding. There are four requirements for application of the doctrine of collateral estoppel: (1) both proceedings must involve the same parties or their privies; (2) the issue must have been actually litigated and determined in the first proceeding; (3) that determination must have been essential to the judgment in the first proceeding; and (4) the party against whom the doctrine is asserted must have had a full opportunity to litigate the issue in question.

We assume, without deciding, that the first three requirements for the doctrine are satisfied here. However, the record does not indicate that the State had a full opportunity at the license suspension hearing to litigate the question of whether Swain refused testing.

“The purpose of the driver’s license suspension hearing is to provide a quick, informal procedure to remove dangerous drivers from Georgia’s roadways and thereby protect public safety.” Accordingly, the driver must request the hearing within ten days of receiving notice of the right to a hearing, and the Department of Public Safety must hold the hearing within thirty days of the request. The scope of the hearing is confined by statute to six discrete issues, and the hearing officer must issue a decision within five days of the hearing. If the hearing officer sustains the suspension, the driver has the right to seek judicial review of the decision, but there is no procedure for the State to appeal an adverse ruling. Within the framework of this abbreviated procedure, the State has only a limited opportunity to litigate the issues, some of which may prove pivotal in a subsequent DUI trial. Because the transcript from Swain’s suspension hearing is not included in the record, we must assume that the hearing was conducted in accordance with statutory procedures and that the State did not have a full opportunity to litigate the issue of whether Swain refused testing. Therefore, the State was not collaterally estopped from presenting evidence on that issue at Swain’s DUI trial.

To hold otherwise would frustrate the purpose of the summary suspension hearing. In the words of the Supreme Court of Illinois,

Given even the possibility that the results of a summary suspension hearing would act as collateral estoppel, the State would likely find it necessary to treat the suspension hearing as an integral part of the criminal trial rather than merely an administrative device at the disposal of the defendant in which the defendant can halt the otherwise automatic suspension of his driving privileges. The process would seldom, if ever, be swift.

We note that nearly every state that has considered this question has reached the same conclusion.

2. Swain also asserts that the trial court erred by failing to give her proposed jury charge that “the mere fact that the Defendant had an odor of alcohol on his/her breath is not sufficient, in and of itself, to give rise to an inference that he/she was intoxicated.” We disagree.

Swain’s requested charge was taken almost verbatim from our decision in Clay v. State But it is not always appropriate to use language from appellate decisions in a jury charge, even though the language “may embody sound principles of law.” Rather, jury charges must be tailored to the evidence presented in the case. As the evidence in Clay differed from the evidence here, the requested charge was not appropriate.

Decided July 20, 2001

Reconsideration denied August 8, 2001

Head, Thomas, Webb & Willis, William C. Head, for appellant.

Gwendolyn R. Keyes, Solicitor-General, Frank M. Gaither, Jr., Assistant Solicitor-General, for appellee.

In Clay, the jury found the defendant guilty of DUI on the basis of the arresting officer’s testimony that he had bloodshot eyes and smelled of alcohol. However, there was evidence that the defendant’s eyes normally appeared red, and the officer conceded that his speech had not been slurred, that he had not been staggering, that he had not been given field' sobriety tests, and that his driving had not been unusual or erratic. Accordingly, we held that the smell of alcohol on the defendant’s breath, alone, was not sufficient to support his conviction.

In this case, the evidence of Swain’s intoxication was not limited to testimony that she smelled of alcohol. There also was evidence that she was driving erratically and caused a head-on collision; that after the collision she acted confused, did not respond to questions, and walked unsteadily; and that she told the arresting officer that she had had “way too much” to drink. In light of this additional evidence, the trial court was not required to instruct the jury that the smell of alcohol is not by itself sufficient to demonstrate intoxication.

Judgment affirmed.

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

       Swain also was charged with and found guilty of driving on the wrong side of the road, but she does not appeal that conviction.

       OCGA § 40-5-67.1 (b).

       Id.

        Moore v. State, 217 Ga. App. 536, 537 (458 SE2d 479) (1995).

       See OCGA § 40-5-67.1 (g).

       A transcript from the administrative hearing was never admitted into evidence, although Swain states that one was made.

       184 Ga. App. 141-142 (1) (361 SE2d 28) (1987) (physical precedent only).

       Id. at 141.

       Id.

       Id. at 142.

       191 Ga. App. 769 (382 SE2d 679) (1989).

       Id. at 770.

       (Citation omitted.) Id. at 771.

       179 Ga. App. 327-328 (1) (346 SE2d 387) (1986).

       Id. at 328 (1); see also Smith v. State, 180 Ga. App. 309 (1) (349 SE2d 4) (1986) (relying on Wyatt).

        Epps Air Svc. v. Lampkin, 229 Ga. 792, 795 (2) (194 SE2d 437) (1972); Blackwell v. Ga. Real Estate Comm., 205 Ga. App. 233, 234 (421 SE2d 716) (1992); Hunter v. City of Warner Robins, 842 FSupp. 1460, 1465 (M.D. Ga. 1994).

       See Dickerson v. Dickerson, 247 Ga. App. 812, 813 (545 SE2d 378) (2001); Ervin v. Swift Adhesives, 208 Ga. App. 265, 266 (1) (430 SE2d 133) (1993), overruled on other grounds, Wickliffe v. Wickliffe Co., 227 Ga. App. 432, 434 (1) (489 SE2d 153) (1997).

        Nolen v. State, 218 Ga. App. 819, 822 (463 SE2d 504) (1995).

       OCGA § 40-5-67.1 (g) (1).

       OCGA § 40-5-67.1 (g) (2), (3).

       OCGA § 40-5-67.1 (h).

       For example, the hearing officer is authorized to decide whether the arresting officer had probable cause for the arrest. See OCGA § 40-5-67.1 (g) (2) (A).

       Swain asserts that she tried to place the transcript into evidence, but the trial court refused to admit it. However, the record shows that Swain merely suggested that the court review the transcript “if it would be a time-saver,” and the court declined that offer. It was Swain’s responsibility to perfect the record. See Macko v. City of Lawrenceville, 231 Ga. App. 671, 673 (1) (499 SE2d 707) (1998).

        People v. Moore, 138 Ill.2d 162 (561 NE2d 648, 652) (1990).

       See, e.g., id.; People v. Lalka, 113 Misc.2d 474 (449 NYS2d 579) (N.Y. City Ct. 1982); State v. Warfield, 854 SW2d 9 (Mo. App. 1993); State v. Ratliff, 304 Ore. 254 (744 P2d 247) (1987); State v. Bacote, 331 S.C. 328 (503 SE2d 161) (1998); State v. Cassady, 140 N.H. 46 (662 A2d 955) (1995); Jones v. City of Lynchburg, 23 Va. App. 167 (474 SE2d 863) (1996); Janes v. State, 350 Md. 284 (711 A2d 1319) (1998); State v. Stearns, 159 Vt. 266 (617 A2d 140) (1992); Reynolds v. State, 4 SW3d 13 (Tex. Crim. App. 1999).

       193 Ga. App. 377, 379 (2) (387 SE2d 644) (1989).

        Smith v. State, 202 Ga. App. 701, 702 (2) (415 SE2d 495) (1992), disapproved on other grounds, State v. O’Donnell, 225 Ga. App. 502, 505 (2) (484 SE2d 313) (1997).

        Randolph v. State, 246 Ga. App. 141, 145 (2) (538 SE2d 139) (2000).

        Clay, supra at 379.

       Swain did not refute this testimony, although she did present the testimony of an expert witness who opined that her confused state was the result of shock, not intoxication.


author: Miller, Judge.

text:
    A01A0861.
    McKAY v. THE STATE.
    (553 SE2d 672)
   Miller, Judge.

Willie McKay appeals from his convictions for armed robbery, five counts of false imprisonment, and possession of a firearm during the commission of a felony, contending that the evidence was insufficient to sustain the verdict. We affirm.

Viewed in the light most favorable to the verdict, the evidence reveals that during the early morning hours of July 4, 1999, a masked man with the same physical characteristics as McKay walked into a Shoney’s restaurant in Columbus, while brandishing a gun. After locking six Shoney’s employees in a freezer, he forced the manager to open the safe and then locked the manager in the freezer with the other employees. By the time the employees managed to escape from the freezer, they found that the individual was nowhere to be found and that all of the money had been removed from the safe and the manager’s office except for a few rolls of coins.

One of the employees who had been locked in the freezer told the other employees that she recognized the voice of the man who forced them into the freezer. The night prior to the robbery, the employee and a co-worker had received a ride home from a man who she believed was the same man who robbed the restaurant. The police questioned the employee about the robbery, and in a photographic lineup she identified McKay as the man who had given her a ride home from the restaurant the previous night and as the person whose voice she recognized as the robber.

At trial the State introduced evidence of three other armed robberies for which McKay had been arrested. All of the other robberies involved the use of a gun similar to the gun used in the Shoney’s robbery and employees being locked in a confined area or being forced to lie on the ground while the robber took the money. Two of the other transactions also involved the robber taking money while leaving the coins.

McKay contends that the Shoney’s employee’s voice identification of him and the similar transactions evidence against him were insufficient to sustain his convictions since the voice identification could have been inaccurate and the other transactions were not similar enough to allow the jury to identify McKay as the individual involved in the Shoney’s robbery.

On appeal from a criminal conviction, the evidence must be viewed in the light most favorable to the verdict, and the appellant (defendant here) no longer enjoys the presumption of innocence; moreover, an appellate court does not weigh the evidence or determine witness credibility but only determines whether the evidence is sufficient under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) [(1979)]. Conflicts in the testimony of the witnesses, including the State’s witnesses, [are] a matter of credibility for the jury to resolve. As long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State’s case, the jury’s verdict will be upheld.

Decided August 8, 2001.

Clark C. Adams, Jr., for appellant.

J. Gray Conger, District Attorney, Roger H. Anderson, Assistant District Attorney, for appellee.

The jury’s verdict was authorized by the evidence. The employee who identified McKay was familiar with his voice and his physical build, and the circumstantial evidence of similar transactions was appropriate for the jury to consider as additional evidence to conclude that McKay was the individual who robbed the Shoney’s restaurant. “The voice identification testimony and the circumstantial evidence were more than sufficient to enable a rational trier of fact to find defendant guilty of the offenses for which he was convicted beyond a reasonable doubt.”

Judgment affirmed.

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

       (Citations and punctuation omitted.) Grier v. State, 218 Ga. App. 637, 638 (1) (463 SE2d 130) (1995).

       See, e.g., Stirrat v. State, 226 Ga. App. 350, 351 (486 SE2d 640) (1997).

        Leaver v. State, 211 Ga. App. 876, 877 (1) (440 SE2d 760) (1994).

       (Citation omitted.) Stevanus v. State, 185 Ga. App. 7, 10 (1) (363 SE2d 322) (1987).


author: Miller, Judge. Eldridge, Judge,

text:
    A01A0998.
    CARR v. THE STATE.
    (553 SE2d 674)
   Miller, Judge.

The primary question on appeal is whether the court’s charge to the jury on the issue of similar transaction evidence offered for the purpose of inferring defendant’s “predisposition to commit the crime” requires reversal. We find harmful error and reverse.

Responding to a dispatch call about a possible break-in, police saw Orashious Carr in another person’s mobile home near a bedroom window that had been broken in. At an officer’s command to come out, Carr announced that he would “come out the way [he] came in,” and he then exited out the front door. Although the home contained an assortment of valuable but common household items (e.g., television, VCR, appliances, furniture), the police found nothing from the home in Carr’s possession, and the homeowner testified that the only items out of place were some dishes that had been removed from the cabinet and stacked in the recliner by the door. Police determined from law enforcement computer records that Carr lived nearby.

At trial, evidence also showed that Carr had committed or attempted to commit burglaries under similar circumstances. Despite Carr’s trial testimony that he was homeless and had entered the home only to find a place to stay, a jury found him guilty of burglary, and the court denied his motion for new trial.

Carr appeals on three grounds: (1) the evidence was insufficient, (2) no evidence authorized the court’s instructions on impeachment, and (3) the court erroneously instructed the jury on the purposes for which similar transactions may be considered. As we agree with the third contention, we reverse.

1. Carr argues that the evidence was insufficient to sustain a burglary conviction. As applied here, burglary is defined as entering a residence without authority and with the intent to commit a theft therein. Carr contends that the only evidence of his intent to commit theft was circumstantial and that a reasonable hypothesis existed that he was at the home only to sleep.

It is true that to warrant a conviction based on circumstantial evidence, the State must prove not only that the evidence is consistent with the hypothesis of guilt, but that every other reasonable hypothesis of nonguilt is excluded. Whether the State meets this burden in a particular case is primarily a question for the jury. Of necessity, the State must rely on circumstantial evidence in proving intent in such cases.

Construed in favor of the verdict, three items of evidence allowed an inference of an intent to commit theft: (i) the presence of valuable effects inside the premises; (ii) the movement of the dishes from the cabinet to the recliner; and (iii) two similar transactions where Carr had pled guilty to attempting burglary with intent to commit theft after he was found breaking a window on a mobile home and where he had pled guilty to burglary with intent to commit theft after he was found escaping through the window of a pool hall from which he had stolen items. Such evidence discounted Carr’s alternative theory that he was simply looking for a place to sleep, particularly in light of the evidence that Carr lived nearby. The evidence supported the verdict.

2. Carr urges that the court erred in instructing the jury that a witness could be impeached by disproving the facts to which the witness testified, or by proving contradictory statements previously made by the witness. Carr does not dispute that the principles of law were correct. Rather, citing Hightower v. State, Carr argues that no evidence authorized the giving of this instruction.

Carr testified at trial that he entered the mobile home via the broken window, whereas at the scene he told police he would exit the same way he entered, and he then exited through the front door. Carr further testified that he was homeless, that he was looking for a place to stay, and that he did not live nearby, whereas a police officer testified that according to headquarters’ computer records Carr lived a few doors away. “Under these circumstances, hearsay [testimony] relating the contents of public records would be admissible for the limited purpose of impeaching [Carr’s] assertions.”* This evidence authorized the instruction on impeachment.

3. Carr contends that the court erred when it instructed the jury that it could consider the similar transaction evidence as proof of Carr’s “predisposition to commit the crime.” The State had proposed this instruction, citing to Zinn v. State, in which predisposition to commit the crime was relevant to disprove the defendant’s claim of entrapment. .Of course, entrapment was not a defense here. The court gave the jury a written copy of its oral instructions, which written copy also contained this language. The giving of this instruction allowed the jury to consider the similar transactions for a clearly improper purpose, and thus reversal is required.

Similar transaction evidence is highly prejudicial and therefore can be admitted only under certain circumstances and for limited purposes. Such purposes include, for example, demonstrating identity, bent of mind, course of conduct, and intent. It is universally understood that two improper purposes are “to show bad character or a propensity to commit a certain type of crime.” Indeed, “permitting similar transaction evidence to be admitted to show a propensity to commit criminal acts in general or a certain type crime in particular” goes to the very heart of the reason why similar transaction evidence is generally inadmissible. “The primary aim of this rule is to avoid the forbidden inference of propensity.” The Supreme Court of Georgia explained the harm as follows:

[P]rior act evidence ... is inherently prejudicial because it raises an inference that an accused who acted in a certain manner on one occasion is more likely to have committed the crime for which he is on trial. As a result, unless there is a reason for the introduction of such evidence, apart from the raising of that inference, prior act evidence will be inadmissible because evidence of the accused’s character is not admissible unless and until the accused puts his character in evidence.

Unfortunately, acting on the State’s erroneous request to charge, the court instructed the jury that it could consider the similar transaction evidence for the forbidden purpose of inferring Carr’s predisposition (i.e., propensity) to commit the crime. Such an egregious instruction to the jury cannot be overlooked.

Claiming the evidence of guilt was overwhelming, the State urges us to find the error harmless. This we cannot do. To find harmless error in jury instructions would require that we find “it is obviously highly probable that the error . . . did not contribute to the verdict. . . .” Here Carr was found in a mobile home with no property of the home in his possession and with only some dishes disturbed. He testified that he was looking for a place to stay. The similar transactions occurred in 1980 and 1983, some 16 to 19 years before the 1999 break-in here. We cannot say as a matter of law that it is highly probable that the error did not contribute to the verdict. We reverse.

Judgment reversed.

Andrews, P. J., concurs. Eldridge, J., concurs specially and in judgment only.

Decided August 8, 2001.

Christopher S. Warren, for appellant.

Eldridge, Judge,

concurring specially.

I concur in the judgment in this case. The State clearly twisted the reasoning of an entrapment case, Zinn v. State, 134 Ga. App. 51, 52 (2) (213 SE2d 156) (1975), out of the frame in order to submit a charge that permits a jury to consider a 16-year-old prior bad act for a defendant’s “predisposition to commit the crime.” I suspect this is so because evidence of Carr’s intent to commit a theft is lacking in this burglary case. That dishes were disturbed in the mobile home, as opposed to the electronic devices therein, appears to militate against theft as a motive for entry. Thus, the improper charge cannot be considered harmless, as the prior act proved the requisite intent more than any evidence of the instant offense.

I write because “propensity” can be a sufficient basis for the admission of a similar transaction. For example, the propensity to use a firearm has been held to be an appropriate purpose for such admission. The propensity to initiate an encounter without a woman’s consent may also be established through prior bad acts. As may the propensity for initiating and continuing unprovoked violent encounters. “Propensity” is not a forbidden concept when establishing the admissibility of a similar transaction when it goes to show conduct and/or intent with regard to the commission of the indicted offense. Accordingly, I cannot agree with the majority that the “primary aim of this rule [admissibility showing] is to avoid the forbidden inference of propensity.” The evil to be avoided is, as in this case, admission of a similar transaction simply to demonstrate a predisposition to commit an offense that the defendant committed in the past, i.e., he did it before, so he did it this time as well. Because the trial court’s charge authorized just such conclusion and the evidence of intent to commit a theft was weak, I cannot say it is highly probable that the complained-of charge did not affect the verdict. Consequently, I concur in the judgment of reversal of this criminal conviction.

Kenneth B. Hodges III, District Attorney, Jennifer Johnson-Green, Assistant District Attorney, for appellee.

       OCGA§ 16-7-1 (a).

       OCGA § 24-4-6.

        Muckle v. State, 165 Ga. App. 873 (1) (303 SE2d 54) (1983).

        Bradshaw v. State, 172 Ga. App. 330, 332 (2) (323 SE2d 253) (1984).

       See id.; Bowen v. State, 128 Ga. App. 577 (1) (197 SE2d 738) (1973).

        Phagan v. State, 243 Ga. App. 568, 570 (2) (533 SE2d 757) (2000) (movement of checkbook and presence of valuables inside building showed intent to commit theft).

        Parrish v. State, 141 Ga. App. 631 (1) (234 SE2d 174) (1977).

       Id.

       See State v. Byrd, 255 Ga. 665, 666 (341 SE2d 455) (1986) (summarizing the methods by which a witness may be impeached).

       210 Ga. App. 386, 388 (3) (436 SE2d 28) (1993).

       (Citation omitted.) Newman v. State, 216 Ga. App. 73, 74 (2) (453 SE2d 117) (1995).

       134 Ga. App. 51, 52 (2) (213 SE2d 156) (1975).

        Williams v. State, 261 Ga. 640, 641-642 (2) (a) (409 SE2d 649) (1991); see Smith v. State, 232 Ga. App. 290, 291-292 (1) (501 SE2d 523) (1998).

        Collins v. State, 273 Ga. 93, 94-95 (2) (538 SE2d 47) (2000); see Williams, supra, 261 Ga. at 642, n. 2.

        Guyton v. State, 272 Ga. 529, 532 (3) (531 SE2d 94) (2000).

         (Emphasis supplied.) King v. State, 230 Ga. App. 301, 304 (1) (496 SE2d 312) (1998); see State v. Hinson, 269 Ga. 862, 863 (506 SE2d 870) (1998) (Fletcher, P. J., dissenting) (if the evidence is to show that the defendant has the propensity to commit the crime with which he is charged, it is of course inadmissible); Maggard v. State, 259 Ga. 291, 293 (2) (380 SE2d 259) (1989) (similar transaction evidence not admissible to show “a probability that the defendant committed the crime on trial because he is a man of criminal character”) (citation and punctuation omitted); see generally Williams, supra, 261 Ga. at 641 (2) (a).

        Smith, supra, 232 Ga. App. at 291 (1).

       (Citation omitted.) Barrett v. State, 263 Ga. 533, 534 (2) (436 SE2d 480) (1993), overruled on other grounds, Wall v. State, 269 Ga. 506, 508-509 (2) (500 SE2d 904) (1998).

       (Citations and punctuation omitted.) Sultenfuss v. State, 185 Ga. App. 47, 51 (5) (363 SE2d 337) (1987).

        Anderson v. State, 236 Ga. App. 679, 681-682 (613 SE2d 235) (1999); Shiver v. State, 235 Ga. App. 358, 359 (509 SE2d 658) (1998).

        Goodroe v. State, 238 Ga. App. 66, 68 (518 SE2d 139) (1999).

        Davis v. State, 244 Ga. App. 708, 712 (536 SE2d 596) (2000).

       Citing Smith v. State, 232 Ga. App. 290, 291 (501 SE2d 523) (1998).


text:
    A01A1153.
    HALL v. OLIVER et al.
    (553 SE2d 656)
   Miller, Judge.

Bruce and Rita Oliver occupied land next to a landowner (Otis Wayne Hall), who protested their using the dirt road on his property to access their home, particularly since their property fronted on an undisputed public road. The Olivers claimed that the road on Hall’s property was also a public road maintained by the county or at least was a prescriptive easement in their favor based on need or their continually using the road for 13 years. Hall sued to enjoin trespass by the Olivers and for damages, and at trial the court dismissed the action without prejudice on the ground that the current owner of the land occupied by the Olivers — Lorethia Lynn — was not a party. The questions on appeal are whether the court erred in finding that Lynn was a necessary party to this action and in dismissing the action on this ground. We hold that Lynn was a necessary party but that the court should have first given Hall an opportunity to add her as a party before dismissing the case.

The crux of Hall’s 1999 action for trespass against the Olivers was that the road on his land was a private way and that he had revoked any consent to their using it to access their home. Since the Olivers continued to use the road, he sued for damages and an injunction. The Olivers countered that they had authority to use the road, despite Hall’s protests, on the grounds that it was built and maintained as a public road or was a prescriptive easement created by need or by their actual usage since 1986. They counterclaimed for trespass by Hall onto their land.

Midway through rebuttal testimony at the October 2000 trial, unimpeached evidence showed that the Olivers no longer owned the land, having transferred it to Lorethia Lynn in March 1997. Finding Lynn to be the real party in interest regarding the counterclaim and an indispensable party regarding the complaint, the court immediately dismissed both the complaint and the counterclaim without prejudice. Hall appeals the dismissal of his complaint, arguing Lynn was unnecessary to the action.

1. Under OCGA § 9-11-19 (a) there are two essential tests for determining whether a party is necessary to an action. First, can relief be afforded the plaintiff without the presence of the other party? And second, can the case be decided on its merits without prejudicing the rights of the other party? The second question is not whether relief has been requested against the other party, but whether the other party has or claims an interest relating to the subject of the action and is so situated that the disposition of the action in her absence may as a practical matter impair or impede her ability to protect that interest.

Some of the Olivers’ defenses to trespass were that by prescriptive easement they had obtained a right to use the road on Hall’s land and that the road provided the sole means of access to their home. They also claimed the road was a public road created and maintained by the county that provided access to their home. Lynn as owner of the land occupied by the Olivers clearly has an interest in whether the road provides access to her property. The determination whether the road is a public road or an easement by prescription, in a case involving her predecessors in title and the current occupiers of the land, would impair her ability to protect this method of access to her property, especially since she has owned the property less than seven years and would have to rely on the actions of the Olivers to establish an easement by prescription.

Furthermore, regarding the Olivers’ defense that the road provided the only access to the property, a judgment enjoining the Olivers from using the road would affect Lynn’s right to lease the land to the Olivers or to someone else wishing to use the road as access and would affect Lynn’s own ability to use the road as access. The court did not err in finding that Lynn was a necessary party to the trespass and injunction action against the Olivers.

2. Once a court has determined under OCGA § 9-11-19 (a) that a party is necessary to an action, “[t]he proper procedure would be to give the plaintiff an opportunity to join [the party] and to dismiss upon failure to do so.” Thus, “a court is to allow a reasonable time for an absent [necessary] party to be joined before granting a motion to dismiss for nonjoinder.” Indeed, it is reversible error for a trial court to dismiss an action in the same order in which it determines a party to be necessary, as the plaintiff must first be given an opportunity to join the missing party.

Decided August 8, 2001.

George E. Argo, for appellant.

Glen A. Cheney, for appellees.

Accordingly, the trial court here erred in dismissing the complaint without first affording Hall the opportunity to join Lynn as a party. We therefore reverse the ruling dismissing Hall’s complaint and remand the case with instructions that the trial court enter an order allowing Hall a reasonable time in which to move to join Lynn.* We do not reverse the ruling dismissing the counterclaim, as such has not been appealed. Our holding renders moot the remaining enumerations of error.

Judgment reversed and case remanded with instructions.

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

       See Pope v. Pulte Home Corp., 246 Ga. App. 120 (1) (539 SE2d 842) (2000).

       For the most part, we avoid using the term “indispensable” in this case, as “[t]he question of whether a party is indispensable . . . should be addressed only after it has been determined that the party is necessary and cannot be joined. [Cits.]” J. M. Huber Corp. v. Ga. Marble Co., 239 Ga. App. 271, 277 (3), n. 2 (520 SE2d 296) (1999); see OCGA § 9-11-19 (b).

        Pickett v. Paine, 230 Ga. 786, 796 (4) (a) (199 SE2d 223) (1973); see Hall v. Trubey, 269 Ga. 197, 200 (2) (498 SE2d 258) (1998).

        Coe v. Greenville Credit &c. Co., 164 Ga. App. 521, 522 (2) (298 SE2d 36) (1982); see OCGA § 9-11-19 (a) (2).

       See OCGA § 44-9-54.

       See, e.g., MacGibbon v. Akins, 245 Ga. App. 871, 872 (2) (538 SE2d 793) (2000) (court focused on evidence whether current landowner or his predecessors took actions needed to establish easement by prescription); cf. OCGA § 44-9-54 (easement by prescription established over seven years).

       See J. M. Huber Corp., supra, 239 Ga. App. at 276-277 (3).

        Pickett, supra, 230 Ga. at 796 (4) (a).

       (Citations omitted.) Hall, supra, 269 Ga. at 200 (2); see Zappa v. Automotive Precision Machinery, 205 Ga. App. 584, 585 (5) (423 SE2d 286) (1992) (“proper remedy for failure to join an indispensable party is not dismissal,. . . but joinder. [Cit.]”).

        Coe, supra, 164 Ga. App. at 523 (3).

       See id.


author: Eldridge, Judge.

text:
    A01A1329.
    HOLLIFIELD v. MONTE VISTA BIBLICAL GARDENS, INC. et al.
    (553 SE2d 662)
   Eldridge, Judge.

James E. Hollifield owns land adjacent to lands owned by Monte Vista Biblical Gardens, Inc. and by Jack Frost II; Hollifield built a wall, driveway, and started a building encroaching on their land. Monte Vista and Frost brought an action for ejectment and trespass against Hollifield. Hollifield answered and countersued for improvements that he had made to their lands. On motions for summary judgment, the trial judge granted a writ of ejectment against Hollifield, reserving the issue of damages and attorney fees for jury trial, and granted summary judgment against Hollifield on his counterclaim for improvements. We affirm.

1. Hollifield contends that the trial court erred in granting partial summary judgment in granting a writ of ejectment against him.

(a) Hollifield contends that the plaintiffs knew of his improvements, that the improvements were on their land, and that they made no protest until the improvements were completed; therefore, the plaintiffs are now estopped from obtaining a writ of ejectment.

Hollifield admitted that he knew who the owners of the land were and had offered to purchase some of the land from Frost, but there was never an agreed-on purchase price. Further, he knew that there was only a possibility or chance that Frost would sell to him. But nonetheless, during 1994 and 1996, he proceeded to build on land that he knew that he did not own. He admitted that he erected a brick and iron-work fence, paved a driveway, and began an addition to the structure on his lot, knowing that it encroached on plaintiffs’ lands, because he planned to buy the adjoining land from the plaintiffs. He also admitted paving over a path without permission of the owner, although he did not need it for ingress or egress, and he admits telling the owner on complaint that he would remove the driveway but has never done so. Defendant admits that he intended to build and did build within five feet of his property line in violation of the Fulton County Building Code and that he did not have the land surveyed or know where his property line was located. He admits that, upon notice of encroachment in building the structure, he immediately stopped construction of the block building. He admitted that, if the plaintiffs’ survey is correct, he has encroached on plaintiffs’ land.

On Jeme 18, 1999, within five years of the encroachment, plaintiffs sued Hollifield for writ of ejectment from their land. Hollifield has admitted the grounds for the issuance of a writ of ejectment and denial of an estoppel defense. “Conclusive presumptions of law are termed estoppels; averments to the contrary of such presumptions shall not be allowed. Estoppels are not generally favored. . . . Estoppels also include all similar cases where it would be more unjust and productive of evil to hear the truth than to forbear investigation.” OCGA § 24-4-24.

Under the facts and circumstances of this case, defendant’s reliance upon Ga. R. &c. Co. v. Hamilton, 59 Ga. 171, 175 (1877) is misplaced, because that opinion held, “[w]e hardly think that the doctrine extends so far as to estop the company from recovering the land; but it certainly does estop the company from recovering defendant’s house, if he acted in good faith in building where he did; and it is certainly difficult to see how he could have well acted in bad faith.” There, the railroad had to either allow the builder/owner to remove his house from the railroad right-of-way or pay for the damage to it from removing that portion on the right-of-way as a matter of equity; however, the railroad recovered its land. The Supreme Court applied equitable principles in resolving the case, because, unlike in this case, the builder acted in good faith and in ignorance.

In this case, Hollifield acted with knowledge that he was building on others’ land without permission or reckless disregard of the truth; he put himself in this position with unclean hands with recklessness and knew that he was violating the county building code in building too close to his property line. Hollifield failed to determine his and his neighbors’ property line by survey prior to acting and continued his knowing trespass until told to stop. Such conduct constitutes bad faith.

The party asserting the benefit of estoppel must have acted in good faith and in the exercise of reasonable diligence. See OCGA §§ 24-4-25; 24-4-27; Travelodge Corp. v. Carwen Realty Co., 223 Ga. 821, 823-824 (1) (158 SE2d 378) (1967); Tybrisa Co. v. Tybeeland, Inc., 220 Ga. 442, 445-446 (139 SE2d 302) (1964); Whitco Produce Co. v. Bonanza Intl., 154 Ga. App. 92 (267 SE2d 627) (1980). Thus, when an adjacent property owner fails to exercise reasonable diligence by knowingly building on the land of another that he hoped to purchase, he cannot avail himself of the defense of estoppel. Travelodge Corp. v. Carwen Realty Co., supra at 824 (1).

“In cases of silence there must be not only the right but the duty to speak before failure to do so can operate as an estoppel. [Cit.]” (Emphasis in original.) Tybrisa Co. v. Tybeeland, Inc., supra at 445.

Something more than mere passivity or inaction while the expense is being incurred is generally necessary to create an estoppel. In cases of silence there must be not only the right but the duty to speak, before a failure to do so can estop the owner. Where the owner merely stands by and fails to object while improvements are being constructed, he is not estopped from obtaining relief in equity against the diversion of the water, where the expenditure is made with notice, actual and constructive, of his superior rights. The defendants show no right to divert the waters of this creek from lower riparian owners. They were bound to know that it was unlawful for them so to do. They were chargeable by law with notice of the superior rights of lower riparian owners of land on this stream. They knew that the diversion of a substantial portion of the water of this stream from the land of the plaintiff was unlawful and a trespass. These facts were well known to the defendants as to the plaintiff. Where the facts are known to both parties, and where they have the same means of ascertaining the truth, there is no estoppel.

(Citations omitted.) McNabb v. Houser, 171 Ga. 744, 752 (156 SE 595) (1931). One who has title in whole or in common to land and who sees another, in lawful possession, place valuable improvements on the land but does not give notice of his title to the builder is not subsequently estopped from asserting title. Owen v. Miller, 209 Ga. 875, 876 (1) (76 SE2d 772) (1953).

[A]n estoppel can not be the basis of title to land, an equitable estoppel is based on the ground of promoting the equity and justice of the individual case by preventing a party from asserting his rights under a general technical rule of law, when he has so conducted himself that it would be contrary to equity and good conscience for him to allege and prove the truth.

(Citations and punctuation omitted.) Davis v. Auerbach, 78 Ga. App. 575, 579 (3) (51 SE2d 527) (1949); see also Yaali, Ltd. v. Barnes & Noble, Inc., 269 Ga. 695, 696-697 (2) (506 SE2d 116) (1998). “The recognition of such a property right [easement] now based solely on estoppel exceeds the reach of estoppel by deed, whether considered as an evidentiary rule or a substantive principle of property law.” Yaali, Ltd. v. Barnes & Noble, Inc., supra at 697.

When a party comes into court with unclean hands, equity will not grant relief to such party. See Head v. Walker, 243 Ga. 108, 110 (252 SE2d 440) (1979); Fuller v. Fuller, 211 Ga. 201, 202 (84 SE2d 665) (1954). Here, Hollifield not only intentionally trespassed on his neighbors’ land, but he also intended to violate the Fulton County Building Code by building within the mandated side yard, which ordinance acted in part to prevent such encroachments.

(b) Hollifield contends that the plaintiffs “waived any rights which they had to the property which appellant constructed upon.” None of the cases relied upon by defendant regarding waiver involve “waive [r of] any rights which [an owner] had to property,” but instead involve the waiver of procedural rights or claims other than property rights. Therefore, factually and legally such cases are distinguished from this action for ejectment to protect title to land.

Between 1994 and 1996, the owners demanded that the driveway be removed from their property, and Hollifield indicated that he would remove it. In 1999, after he received notice that he was building on the plaintiffs’ land, he stopped construction. Thus, the plaintiffs timely protested encroachments by the defendant prior to suit.

Defendant contends that the plaintiffs lost title to their land by waiver. Other than by eminent domain, prescriptive title is the only way title to land may be lost by the action or inaction of the legal or equitable owner to another asserting rights in the land adverse to the owner. Adverse possession requires that the possession of the land be open and adverse possession continuously for 20 years by the claimant and his privies. OCGA §§ 44-5-160; 44-5-161; 44-5-163; Ga. Power Co. v. Irvin, 267 Ga. 760, 762-765 (1) (482 SE2d 362) (1997). Thus, the adverse possession must be continuous, exclusive, uninterrupted, public, and peaceful for 20 years for a prescriptive title to be acquired by another. Ga. Power Co. v. Irvin, supra at 760. Even adverse possession under color of title requires seven years adverse possession. OCGA § 44-5-164; Spillers v. Jordan, 96 Ga. App. 426, 432-434 (3) (100 SE2d 483) (1957). Plaintiffs brought their action for ejectment well within the seven-year statute of limitation to protect their title and possession of their land from a continuing trespass by Hollifield. See generally Brown v. Brown, 208 Ga. 404 (67 SE2d 128) (1951); Shirley v. Mulligan, 202 Ga. 746, 748-749 (2) (44 SE2d 796) (1947). Thus, plaintiffs did not lose title to their land.

2. Hollifield contends that the trial court erred in granting summary judgment on his counterclaim for the recovery of the reasonable value of improvements to the plaintiffs’ land made by him.

Hollifield undertook to clean up and beautify the plaintiffs’ land to benefit his own land and for future purchase by him. “I was just cleaning it up because it was an eyesore and I wanted my side to look good as well as his side.” “I wanted to make a change for the entire community as well as myself.” Hollifield began his planting of trees, shrubs, and flowers on Frost’s land as early as 1989 and continued it into 1998. Although Frost wanted too much to sell the land, Hollifield claimed to have put $50,000 worth of flowers, trees, and shrubs on the land after his failure to purchase the property, because

it was one of the most ugly pieces of property in the state of Georgia, number one. It was an eyesore to the entire community and it didn’t represent me because what I was living next door to I just didn’t want that next door to me. That was my number one reason to clean it up, to make it look decent because wouldn’t nobody come to see me with that over there, water, trees and everything all in the place. It was a mess.

From Hollifield’s own admissions, he was a mere volunteer, seeking no monetary compensation for his services and improvements. His contribution of labor, trees, shrubbery, and flowers constituted gratuitous acts.

(a) Under the theory of liability for quantum meruit the essential elements are: (1) the provider performed as agent services valuable to the recipient; (2) either at the request of the recipient or knowingly accepted by the recipient; (3) the recipient’s receipt of which without compensating the provider would be unjust; and (4) provider’s expectation of compensation at the time of rendition of services. OCGA § 9-2-7;Artrac Corp. v. Austin Kelley Advertising, 197 Ga. App. 772, 777 (5) (399 SE2d 529) (1990); see also Allen v. T. A. Communications, 181 Ga. App. 726, 727 (353 SE2d 569) (1987).

Quantum meruit does not apply where the services are rendered with no expectation of compensation being recovered by a volunteer. Pembroke Steel Co. v. Technical Sales Assoc., 138 Ga. App. 744, 745 (2) (227 SE2d 491) (1976); Creative Svc. v. Spears Constr. Co., 130 Ga. App. 145 (3) (202 SE2d 581) (1973); Addison v. Southern R. Co., 108 Ga. App. 314, 315-316 (132 SE2d 833) (1963). “Ordinarily, when one renders service or transfers property which is valuable to another, which the latter accepts, a promise is implied to pay the reasonable value thereof.” OCGA § 9-2-7. However, when the person renders services or contributes property as a gratuity as a volunteer, quantum meruit is not recoverable, because neither party had an expectation that anything would be paid. Creative Svc. v. Spears Constr. Co., supra at 145; Addison v. Southern R. Co., supra at 316; Guyton v. Young, 84 Ga. App. 155, 162 (5) (65 SE2d 858) (1951).

Although one performs services with the expectation of compensation from a corporation, such services were not rendered with the expectation of compensation from its successor corporation; thus, quantum meruit would not lie against the successor corporation, because the provider could not possibly have had an expectation of compensation from it. Summary judgment was appropriate. Artrac Corp. v. Austin Kelley Advertising, supra at 777 (5).

The legal presumption that the person receiving the benefit of services is bound to pay for them is subject to rebuttal by proof either (a) that the services were rendered with the gratuitous intent by the provider, or (b) that, by the particular circumstances, which in law would raise the counterpresumption that the services were not intended to be a charge against the party benefitted. Smith Dev. v. Flood, 198 Ga. App. 817, 819-821 (3) (403 SE2d 249) (1991); see also Cooper v. Cooper, 59 Ga. App. 832-833 (1) (2 SE2d 145) (1939); Guy-ton v. Young, supra at 162.

In this case, Hollifield provided the services and plantings to benefit himself either by ultimately buying the land that he improved or by improving the appearance of the general area where he lived. Further, until the ejectment suit, he never sought compensation in approximately ten years. Thus, he failed to show that he had an expectation of compensation at the time the services and plantings were made.

(b) Even if Hollifield rendered services with an expectation of compensation, the services must be of value to the recipient for an implied promise to pay to arise. If the services or things furnished have no value to the recipient, but have value to the provider, then no duty to pay for unwanted and nonbeneficial services arises, because the provider cannot impose his unwanted services on another. Stowers v. Hall, 159 Ga. App. 501, 502 (3) (283 SE2d 714) (1981); Pembroke Steel Co. v. Technical Sales Assoc., supra. The reasonable value which the provider is entitled to recover in quantum meruit is not the value of the labor but the value of the benefit resulting from such labor to the recipient; if there is no benefit to the recipient, then there is no recovery for something of no value to the recipient. Griner v. Foskey, 158 Ga. App. 769, 771 (2) (282 SE2d 150) (1981); City of Gainesville v. Edwards, 112 Ga. App. 672, 675 (145 SE2d 715) (1965). Where the recipient neither authorizes, consents to, nor ratifies another’s labors or permanent improvements of property which were rendered without the knowledge of the recipient, no duty to pay can be imposed on the recipient as an alleged beneficiary; where the unwanted goods and services cannot be returned by the unknowing and unconsenting beneficiary, it would be unduly harsh to require payment for what was unknowingly conferred. Beavers v. Weatherly, 250 Ga. 546, 548 (299 SE2d 730) (1983); see also Grady Tractor Co. v. First Nat. Bank &c., 213 Ga. App. 663, 664 (1) (446 SE2d 228) (1994). If damages for the benefit conferred were recoverable, then the measure of damages would be the reasonable value of labor and materials of benefit to the recipient or the amount which the improvements added to the fair market value of the land, whichever is the smaller. Beavers v. Weatherly, supra at 548. Hollifield failed to prove the benefit to the plaintiffs. Defendant gave his opinion as to the value of his services, which fails to prove the value of the benefit, if any, to the plaintiffs. Had the defendant proved the value of plaintiffs’ land both before and after his services, the increase in value would be some circumstantial evidence of the conferred benefit to the plaintiffs creating a jury question, because some of the increase in value would be attributable to inflation and to increase in the market.

(c) Also, Hollifield contends that under the doctrine of unjust enrichment the plaintiffs should be compelled to pay for the benefits that he conferred upon the plaintiffs. “The theory of recovery for unjust enrichment arises both at law and equity. [Cits.]” Reidling v. Holcomb, 225 Ga. App. 229, 231 (2) (483 SE2d 624) (1997).

The theory of unjust enrichment is basically an equitable doctrine that the benefitted party equitably ought to either return or compensate for the conferred benefits when there was no legal contract to pay. Zampatti v. Tradebank Intl. Franchising Corp., 235 Ga. App. 333, 340 (5) (508 SE2d 750) (1998); Smith v. Huckeba, 232 Ga. App. 374, 376 (2) (501 SE2d 877) (1998); Regional Pacesetters v. Halpern Enterprises, 165 Ga. App. 777, 782 (2) (300 SE2d 180) (1983).

“The measure of damages under quantum meruit or unjust enrichment is based upon the benefit conferred upon the [recipient] and not the cost to render the service or cost of the goods.” (Citations omitted.) Zampatti v. Trademark Intl., supra at 340. “The only evidence offered to establish [defendant’s] claim was [his] testimony concerning the cost of [planting and labor]. It was not established that the [planting and labor] enhanced the value of the property in any manner and thus conferred a benefit on the [plaintiffs].” Engram v. Engram, 265 Ga. 804, 807 (2) (463 SE2d 12) (1995). Just as in Division 2 (b), supra, where Hollifield failed to establish the benefit conferred upon the plaintiffs, he also has here failed to come forward with some evidence.

Where a party under no legal or moral obligation to pay a debt of another pays such debt without request, instance, or consent of the debtor and the debtor does not ratify the act, such payment cannot be recovered from the debtor because this was a voluntary payment, not an unjust enrichment. Benton v. Gaudry, 230 Ga. App. 373, 376 (3) (496 SE2d 507) (1998); cf. Woodard v. First Nat. Bank &c., 159 Ga. App. 769, 771-772 (285 SE2d 229) (1981); Clay v. Littlefield, 144 Ga. App. 88, 91 (1) (240 SE2d 254) (1977). Further, the acts of a volunteer in paying a debt for which there is no legal or moral obligation to pay without the request or consent of the debtor does not give rise to any liability. Jennings v. Stewart, 106 Ga. App. 689, 690 (2) (127 SE2d 842) (1962).

For unjust enrichment to apply either in law or equity, the party conferring the labor and things of value must act with the expectation that the other will be responsible for the cost. Engram v. Engram, supra at 807. Here, Hollifield acted without such expectation.

“The concept of unjust enrichment in law is premised upon the principle that a party cannot induce, accept, or encourage another to furnish or render something of value to such party and avoid payment for the value received.” Reidling v. Holcomb, supra at 232 (2). Inherent in the theory of unjust enrichment is the requirement that the receiving party knew of the value being bestowed upon him by another and failed to stop the act or to reject the benefit prior to its conferment. Id. at 231-232 (2); see also Beavers v. Weatherly, supra at 548 (2).

Absent evidence that the services and alleged improvements enhanced or increased the fair market value of the property of the beneficiary, no unjust enrichment has been shown. Thus, when a tenant makes improvements under the belief that they have an option to purchase, absent evidence of the cost of construction, there is no showing of enhanced value or conferred benefit on the owner for equitable compensation to arise. Engram v. Engram, supra.

Since unjust enrichment is primarily an equitable doctrine, then where it would be unjust to require full restitution, there is no duty to make full restitution. Dept. of Med. Assistance v. Presbyterian Home, 200 Ga. App. 885 (409 SE2d 881) (1991). “If this action were exclusively in equity, then [Hollifield’s] acts . . . would bar any relief under the maxims of equity. [Cit.]” Reidling v. Holcomb, supra at 231 (2).

Decided August 8, 2001.

Pierce & Young, J. Wayne Pierce, for appellant.

King & Croft, F. Carlton King, Jr., for appellees.

In this case, Hollifield acted in bad faith and reckless abandon without expectation of compensation; he has unclean hands. Further, he failed to produce any evidence that his services and plantings had a value or benefit to the plaintiffs, no matter what value he placed on the services.

Judgment affirmed.

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


text:
    A01A1336.
    A01A1337.
    In the Interest of M. C. L., a child. In the Interest of M. B. W. et al., children.
    (553 SE2d 647)
   Miller, Judge.

Married twice, Karen bore a son by each husband. Evidence showed that Karen and her second husband were repeatedly incarcerated and that they failed to comply with case reunification plan goals. The question on appeal is whether this evidence authorized the juvenile court to terminate their parental rights to the two boys. We hold that the evidence sufficed to sustain this judgment and therefore affirm.

Karen was sentenced in 1992 to twenty years for her participation with her first husband in murder and armed robbery and was forced to leave her nine-month-old boy M. B. W. in the care of relatives. While in prison, she divorced her first husband (who was serving a life-plus-twenty sentence for his part in the crimes) and married Scott in 1996, whom she had met in prison. Paroled in 1995, Scott had been serving his second prison sentence for drug dealing (not counting previous sentences for credit card fraud and drug possession).

When Karen was paroled in August 1996, the couple moved with M. B. W. to Snellville for about a year and then to Swainsboro for another year. There M. C. L. was born in March 1998. While in Swainsboro, Scott was arrested and sentenced to twelve months probation for theft by taking, and Karen herself spent two days in jail. Later in 1998, the family moved to the Loganville/Snellville area, living in two motels (with the exception of some months when Karen and the boys lived elsewhere during a temporary separation of the couple). They had only sporadic employment.

In January 1999, Scott was incarcerated for a week for theft by deception and for a probation violation. A month later he was incarcerated for several weeks for a probation violation. Once out, he was soon imprisoned for three months for driving with a suspended license and other traffic violations. In the middle of this latest imprisonment, Karen herself was incarcerated on May 26 for writing bad checks. As no relative was available to care for the children, the Walton County Department of Family & Children Services (DFACS) took custody and placed them in foster care. The parents agreed to a reunification plan that required (1) Scott to become and remain alcohol and drug free, (2) both parents to obtain and maintain stable housing for six months, (3) both parents to obtain and maintain stable employment for six months, and (4) both parents to visit the boys regularly. When released in June, the parents for the next two months lived in a car, an employer’s basement, motels in Macon and Monroe, and with relatives. No consistent employment was maintained.

In early August, Karen was incarcerated for shoplifting and for writing bad checks and remained in jail until mid-October. Meanwhile, Scott was again arrested for driving with a suspended license and was imprisoned from September until October. A week after Karen was released, she was again imprisoned for writing bad checks and stayed in prison from October 20 until November 10. Upon Scott’s release, he found employment and began living in his employer’s residence, and upon Karen’s release, she went to live with her mother.

On December 28, Scott was imprisoned for forging some of his employer’s checks, which Karen cashed. Karen had her parole revoked, with forgery charges against her pending upon her release. The couple have remained in prison since.

Due to their repeated imprisonments and noncompliance with the reunification plan, DFACS in June 2000 petitioned to terminate Karen’s and Scott’s parental rights to M. C. L. and her parental rights (as well her first husband’s parental rights who was still serving the life-plus-20 sentence) to M. B. W. The court granted the petition with regard to Scott and Karen but denied it with regard to the first husband. Asserting insufficiency of the evidence, both Scott (Case No. A01A1336) and Karen (Case No. A01A1337) have appealed.

1. The statutory scheme for terminating parental rights involves a two-step analysis in which the court determines first whether there is clear and convincing evidence of parental misconduct or inability and second whether termination of parental rights is in the best interests of the children.

In deciding whether there was parental misconduct or inability, the trial court determines whether the evidence shows that (i) the children are deprived, (ii) lack of parental care caused the deprivation, (iii) such is likely to continue, and (iv) the continued deprivation is likely to cause serious harm to the child.

Here Karen and Scott do not contest that the first two factors — that the children are deprived and lack of parental care caused this deprivation — were shown. Indeed, they stipulated that their respective ongoing incarcerations had caused the children to be deprived. Moreover, neither had appealed earlier orders finding the children to be deprived. Rather, they argue that the third and fourth factors were not shown.

(a) Cause of Deprivation Likely to Continue. The third factor is whether the cause of the deprivation is likely to continue. At the time of the termination hearing in September 2000, both parents still had lengthy sentences to serve, with only their hope that they might be released early on parole late in 2001. Parole hopes are nothing more than conjecture. Moreover, Karen conceded she still had to face forgery charges upon her release.

A parent’s incarceration does not always compel the termination of parental rights, but it can support a termination when there are sufficient aggravating circumstances present. “These aggravating circumstances may include a history of incarcerations for repeated criminal offenses and a determination that it is likely such criminal history will continue upon release.” Indeed, “[r]epeated incarceration preventing one from caring for a child indicates a likelihood of continued deprivation.” Both parents here have a long history of incarceration for commission of criminal offenses and for parole violations, which misconduct continued even after DFACS took over custody of the children. Their past conduct provided sufficient evidence for the court to find that such was likely to continue.

Moreover, another aggravating factor when the parents are incarcerated is failure to comply with goals in the case reunification plan. Repeated failure to comply with these goals may show that the cause of the deprivation is likely to continue.*

Here the parents failed dismally to meet the case plan’s four goals. The first goal required Scott to be drug free, with subsidiary goals of obtaining an evaluation by July 16, 1999, being completely honest regarding his drug use, and following all recommendations for treatment. At the termination hearing Scott admitted that his present incarceration was because he had relapsed into drug use in December 1999, which led to his forging his employer’s checks for drug money. Indeed, his use of cocaine had been the primary cause for many of the family’s instability problems, including his actions and arrests since the plan was agreed upon. He did not obtain a drug evaluation until November 1999, four months after the deadline set in the case plan. He has never received any formal treatment nor been to Alcoholics Anonymous or Narcotics Anonymous. He admitted to being dishonest about his drug use after his agreeing to the case plan. Despite the goal in the case plan and despite the evaluation, he relapsed in December, leading to his present incarceration.

The second goal was for Scott and Karen to obtain and maintain stable employment for six months. They were to provide DFACS with evidence of such. During the few months they were not in prison following the institution of the case plan, neither obtained steady employment nor provided DFACS with evidence of steady employment. The one solid job Scott obtained he forfeited when he stole from his employer.

The third goal was to obtain and maintain appropriate and stable housing by July 31,1999. During those few months they were not in prison, the parents lived in a car, in an employer’s basement, in Macon hotels, with her mother in a trailer park, in the Monroe Motor Inn, and at a second employer’s house.

The fourth goal was to visit the children on regular and scheduled dates. Of the fifteen visits scheduled between June and December 1999, Karen missed nine and Scott missed five. In our view, there was ample evidence for the court to find that none of the case plan goals were met and that such noncompliance was likely to continue.

(b) Continued Deprivation Likely to Cause Harm. The fourth factor is whether the continued deprivation is likely to cause serious physical, mental, emotional, or moral harm to the children. Here the caseworker testified that the children, who had been drifting for 16 months in foster care, needed permanency, something that was also sorely lacking in these parents’ care of the children. She testified to the great emotional trauma suffered by these children who were in limbo. Since they had been cared for by others for most of their lives, they had little relationship with their parents. Indeed, during the nine months of incarceration immediately preceding the termination hearing, Karen had written only four letters to M. B. W. and none to M. C. L., and Scott had written no letters. When free, Scott had twice engaged in drug deals with M. B. W. present, showing moral harm. Physical harm was shown by evidence that when taken into custody by DFACS, the children were not up-to-date on their immunizations and needed dental work, and one had an untreated ear infection.

“The juvenile court was authorized to consider the adverse effects of prolonged foster care in determining that continued deprivation is likely to cause serious physical, mental, emotional, or moral harm to the children.” Indeed, “[c]hildren need permanence of home and emotional stability or they are likely to suffer serious emotional problems.” A caseworker’s testimony about the need for permanency may be considered. The evidence sufficed on this factor.

2. The second area of inquiry is whether termination of rights was in the best interests of the children. “The same factors showing the existence of parental misconduct or inability can support a finding that termination of parental rights would be in the child[ren’s] best interest[s].” Thus, as with the “harm” factor set forth above, in determining the best interests of the children, a court may consider their need for a stable home environment and the detrimental effects of prolonged foster care. “Moreover, the DFACS caseworker testified that [the children were] very bonded to the foster parents, who for the last two years have provided a loving and nurturing environment and have expressed interest in adopting [them].” The evidence sufficed to uphold the court’s finding that termination was in the children’s best interests.

Decided August 8, 2001.

McNally, Edwards, Bailey & Lander, Lisa A. Redlin, Joseph S. Rhymer, for appellants.

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, John R. Laseter, for appellee.

Judgments affirmed.

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

       OCGA § 15-11-94 (a).

       OCGA § 15-11-94 (b) (4) (A); In the Interest of K. D. S., 237 Ga. App. 865 (1) (517 SE2d 102) (1999).

       See In the Interest of E. C., 225 Ga. App. 12, 14-15 (482 SE2d 522) (1997) (parent bound by earlier unappealed findings of deprivation).

       OCGA § 15-11-94 (b) (4) (A) (iii).

        Stills v. Johnson, 272 Ga. 645, 651-652 (3) (533 SE2d 695) (2000); In the Interest of D. A. P., 234 Ga. App. 257, 260 (2) (506 SE2d 438) (1998).

        Stills, supra, 272 Ga. at 651 (3); In the Interest of S. K. L., 199 Ga. App. 731, 733 (1) (405 SE2d 903) (1991).

       (Footnote omitted.) Stills, supra, 272 Ga. at 651 (3).

       (Footnote omitted.) In the Interest of B. C., 235 Ga. App. 152, 155 (b) (508 SE2d 774) (1998); see S. K. L., supra, 199 Ga. App. at 733 (1).

       See B. C, supra, 235 Ga. App. at 155 (b).

        In the Interest of D. T. C., 248 Ga. App. 788, 791 (2) (b) (548 SE2d 11) (2001); In the Interest of C. P., 242 Ga. App. 698, 703 (3) (b) (531 SE2d 117) (2000).

       C. R, supra, 242 Ga. App. at 704 (3) (c).

       OCGA § 15-11-94 (b) (4) (A) (iv).

       (Citation omitted.) In the Interest of R. M., 232 Ga. App. 727, 728-729 (503 SE2d 635) (1998); accord In the Interest of B. R. W., 242 Ga. App. 232, 237-238 (2) (530 SE2d 5) (2000).

        In the Interest of J. O. L., 235 Ga. App. 856, 858 (510 SE2d 613) (1998); accord D. T. C., supra, 248 Ga. App. at 792 (3).

        C. R, supra, 242 Ga. App. at 704 (3) (d); accord In the Interest of I. S., 238 Ga. App. 304, 309 (520 SE2d 470) (1999).

       OCGA § 15-11-94 (a).

       (Citation omitted.) I. S., supra, 238 Ga. App. at 309.

        D. T. C., 248 Ga. App. at 792 (3); accord C. P., supra, 242 Ga. App. at 704 (4); I. S., supra, 238 Ga. App. at 309; see generally In re G. M. N., 183 Ga. App. 458, 461 (1) (359 SE2d 217) (1987).

       (Citation omitted.) K. D. S., supra, 237 Ga. App. at 867 (2).

       Id.