text:
    A99A0189.
    In the Interest of A. P. H., a child.
    (514 SE2d 46)
   Judge Harold R. Banke.

The mother of 15-year-old A. P. H. appeals the juvenile court’s finding of deprivation and award of custody to his stepfather. Appellant enumerates three errors on appeal.

A. P. H.’s stepfather commenced this action less than one month after appellant, his ex-wife, moved out of his home. While seeking reconciliation, the stepfather nevertheless alleged that appellant had renewed her acquaintance with A. P. H.’s natural father, an ex-convict, and was “staying out in bars and upsetting the minor child greatly.” See OCGA § 15-11-24. At the hearing on his petition, the stepfather admitted the evidence was insufficient for termination and his goal was limited to fulfilling the child’s desire to live with him.

The gist of A. P. H.’s complaints against his mother were that since her divorce from his stepfather over a year before, during the periods the couple lived apart, she dated other men and, on one occasion, imbibed alcohol at a bar until approximately 2:00 a.m. and was hung over the next day. Apparently A. P. H. learned of his mother’s actions through his stepfather, who telephoned her and then confronted her in A. P. H.’s presence.

Appellant’s son also complained that one evening he saw his mother with a man in a van from 12:15 to 1:05. A. P. H. admitted that when his mother dated, she left him with a responsible adult and he had never seen her in bed with any of her dates. He also admitted that his mother provided him with food, shelter, and clean clothing. The record shows that the mother was employed and in the process of purchasing a home at the time of the hearing. When asked if his mother beat him, the child answered in the negative, but insisted on stating that on one occasion after she told him to get off the phone on a call to his stepfather, and he told her to wait, she hit him twice on the knee cap with a paddle.

A. P. H. claimed he was deprived because his mother would not allow him to contact his stepfather and stepsister. However, he admitted that in the three weeks his mother and stepfather had ceased cohabiting, he had spent three nights with his stepfather and telephoned him twice a day. He admitted that he was doing well in school, made fairly good grades, and planned to finish and enter the armed services. The child admitted, “[t]here ain’t nothing I wouldn’t do for [his stepfather].” Held:

To authorize even a temporary loss of custody by a parent on deprivation grounds, the deprivation must arise from the parent’s unfitness, “that is, either intentional or unintentional misconduct resulting in the abuse or neglect of the child or by what is tantamount to physical or mental incapability to care for the child.” In the Interest of S. S., 232 Ga. App. 287, 289 (501 SE2d 618) (1998). Proof that a child is “without proper care or control, subsistence, education as required by law, or other care or control necessary for [the] child’s physical, mental, or emotional health or morals” is required to establish that deprivation. OCGA § 15-11-2 (8) (A). “A finding of unfitness must center on the parent alone.” Carvalho v. Lewis, 247 Ga. 94, 95 (274 SE2d 471) (1981). Such a finding cannot be based on a determination that a child “might have better financial, educational, or even moral advantages elsewhere.” Id. Clear and convincing evidence must support the finding of deprivation. Id.; In the Interest of R. R. M. R., 169 Ga. App. 373, 374 (1) (312 SE2d 832) (1983).

Further, application of the “best interest of the child” standard to award a change in custody between a parent and a third party is inappropriate. In the Interest of R. L. L., 258 Ga. 628 (373 SE2d 363) (1988); Carvalho, 247 Ga. at 94; In the Interest of J. C. P., 167 Ga. App. 572, 573 (307 SE2d 1) (1983). Here, the trial court explicitly applied that improper standard, notwithstanding the mother’s numerous, well-founded objections.

Moreover, the record unequivocally fails to support the finding of deprivation with clear and convincing evidence. The child admitted that he sought a change in custody not because the food, shelter, or care he received were inadequate, but because he disapproved of his mother’s rather unremarkable contact with men other than his stepfather, who was obviously very influential to the child. See Saxon v. Saxon, 207 Ga. App. 471 (428 SE2d 376) (1993).

A. P. H.’s contention that at 15 he is entitled to choose the parent with whom he desires to live lacks merit. See OCGA § 19-9-3. His stepfather is not a parent within the meaning of that statute. See Franklin v. Gilchrist, 268 Ga. 497 (491 SE2d 361) (1997). Nor was the juvenile court authorized to appoint the stepfather as A. P. H.’s guardian of choice so long as either natural parent survived and was not unfit. Whitlock v. Barrett, 158 Ga. App. 100, 102 (4) (279 SE2d 244) (1981).

In light of our findings above, we need not reach the remaining enumeration.

Decided March 3, 1999.

Strickland & Garmon, Jeffrey D. Garmon, for appellant.

Benjamin Smith, Jr., for appellee.

Judgment reversed.

Blackburn and Barnes, JJ, concur.


source: Caselaw Access Project

author: Johnson, Chief Judge.

license: Public Domain

text:
    A99A0737.
    JOHNSON v. THE STATE.
    (513 SE2d 291)
   Johnson, Chief Judge.

A jury found Roy Johnson guilty of aggravated sodomy and aggravated child molestation. Johnson appeals from the order denying his motion for new trial. For the reasons which follow, we affirm.

On Saturday, June 17, 1995, investigators with the Fayette County Sheriffs Department went to the Landmark Mobile Home Park in response to a “suspicious activity” call. The investigators spoke with a ten-year-old boy, T. L., who told them that his uncle, Johnson, had engaged him in acts of oral sodomy. T. L. was later interviewed by a caseworker with the Department of Family & Children Services. In this videotaped interview, T. L. said that Johnson molested him repeatedly over a 21-day period. The molestation began when T. L. moved from Arkansas, where he had been living with an aunt, back to the mobile home occupied by his mother, uncle, and others. Johnson molested T. L. late at night on a sofa in the living room of the mobile home. Johnson made T. L. orally sodomize him; Johnson orally sodomized T. L. The videotaped interview was played for the jury. T. L. testified at trial and said that everything he told the investigators in his taped interview was true.

The investigators testified that when they could not locate Johnson, they gave the warrants for his arrest to the Fayette County Fugitive Squad. On August 3,1995, Johnson turned himself in to the Fayette County Sheriffs Department. After being read his Miranda rights and signing a waiver form, Johnson admitted to the investigators that he had orally sodomized T. L. three weeks after T. L.returned from Arkansas. Johnson did not testify at trial; however, he presented the testimony of two witnesses who said they had no reason to suspect that T. L. was being molested by Johnson. The jury convicted Johnson on both counts.

At the hearing on Johnson’s motion for new trial, T. L. recanted his testimony. T. L. said that his other uncle, Obie Anglin, was the one who molested him. T. L. said he lied because he was afraid of Anglin. Anglin pled guilty, however, to committing anal sodomy upon T. L. and these acts occurred on July 5, 1997.

1. In his first enumeration of error, Johnson argues that the trial court erred in denying his motion for new trial based on the “newly discovered evidence” that T. L. recanted his testimony that Johnson molested him. Johnson argues that because T. L. recanted, his previous testimony has no value; therefore, no evidence remains with which to corroborate his confession. Thus, he concludes the evidence against him is insufficient to support his conviction. We do not agree with this analysis.

“That a material witness for the State, who at the trial gave direct evidence tending strongly to show the defendant’s guilt, has since the trial made statements even under oath that [his] former testimony was false, is not cause for a new trial. Declarations made after the trial are entitled to much less regard than sworn testimony delivered at the trial. This difference in value must be recognized, so long as there has been no conviction of perjury. Provision is made for setting aside verdicts resting on peijury, but there must first be a conviction. The only exception to the rule against setting aside a verdict without proof of a material witness’ conviction for peijury, is where there can be no doubt of any kind that the State’s witness’ testimony in every material part is purest fabrication.” (Citations and punctuation omitted.) Logan v. State, 212 Ga. App. 734, 738 (2) (442 SE2d 883) (1994). A recantation impeaches the witness’ prior testimony. See, e.g., McKnight v. State, 211 Ga. App. 653 (1) (440 SE2d 249) (1994). However, it is not the kind of evidence that proves the witness’ previous testimony was the purest fabrication. See, e.g., Fugitt v. State, 251 Ga. 451, 452-453 (1) (307 SE2d 471) (1983) (the evidence offered was extrinsic proof that the witness’ testimony was physically impossible; consequently, the trial court was able to determine the truth of the matter without having to take into account the witness’ credibility). In this case, Johnson presented no such evidence of “pure fabrication” to the court below or to this Court. Therefore, the trial court properly denied the motion. Compare Fugitt; see Miller v. State, 226 Ga. App. 509, 514-515 (4) (486 SE2d 911) (1997).

Further, the fact that T. L. recanted does not render the evidence against Johnson insufficient. Even if T. L. had recanted during trial, his prior inconsistent statements to the investigators would have been admissible as substantive evidence of Johnson’s guilt. See Gibbons v. State, 248 Ga. 858, 862 (286 SE2d 717) (1982). As a prior inconsistent statement, a recanted accusation can be sufficient to corroborate a confession. See Carswell v. State, 179 Ga. App. 56, 60-61 (345 SE2d 66) (1986); Kirby v. State, 187 Ga. App. 88, 89 (1) (369 SE2d 274) (1988). The jury was fully charged on the law pertaining to the corroboration of confessions. Thus, T. L.’s testimony, even if it had been impeached with a recantation at trial, taken in conjunction with Johnson’s confession, would have been sufficient to sustain the jury’s verdict. See, e.g., Brady v. State, 233 Ga. App. 287, 288 (1) (503 SE2d 906) (1998); Patterson v. State, 212 Ga. App. 257 (441 SE2d 414) (1994). The trial court properly denied Johnson’s motion for new trial.

Decided March 3, 1999

Ballard & Ballard, Scott L. Ballard, for appellant.

2. In his second enumeration, Johnson argues the trial court erred in denying his motion in limine to redact a portion of T. L.’s videotaped testimony. We agree that the trial court should have had the state omit from the tape T. L.’s hearsay statements that Johnson had asked another juvenile “to play touchy feely.” See Woodard v. State, 269 Ga. 317, 321-323 (3) (496 SE2d 896) (1998). We do not agree, however, that this statement constitutes similar transaction evidence for which a Uniform Superior Court Rule 31.3 (B) hearing was required. T. L.’s statement was neither offered nor used by the State as similar transaction evidence. In light of Johnson’s confession, T. L.’s trial testimony, the testimony of the investigators and caseworker, and T. L.’s detailed and graphic videotaped testimony, we do not believe the hearsay statement contributed to the guilty verdict. Consequently, the error does not warrant reversal. See id. at 324 (4).

3. In his third enumeration of error, Johnson complains that the trial court did not fully charge the jury on the credibility of witnesses. When the court asked if Johnson had any objections or exceptions to the charge, he only objected to the court’s refusal to give three of his requested charges, none of which pertained to witness credibility. He did not reserve objections to the charge as a whole. Accordingly, he waived the right to raise this issue on appeal. See Smith v. State, 268 Ga. 42, 43 (2) (485 SE2d 189) (1997).

4. In his final enumeration of error, Johnson contends his convictions must be reversed because the statute criminalizing sodomy was declared unconstitutional by our Supreme Court in Powell v. State, 270 Ga. 327 (510 SE2d 18) (1998). We disagree. The Court held that OCGA § 16-6-2 infringed upon a constitutionally protected right of privacy only to the extent it criminalized “the performance of private, unforced, non-commercial acts of sexual intimacy between persons legally able to consent.” Clearly, the acts of sodomy charged in this case do not fall within that class. The trial court did not err in denying Johnson’s motion for new trial.

Judgment affirmed.

McMurray, P. J., and Andrews, J., concur.

William, T McBroom III, District Attorney, James E. Hardin, Assistant District Attorney, for appellee.


author: Pope, Presiding Judge.

text:
    A97A0381.
    THOMASON v. EXXON CORPORATION.
    (513 SE2d 520)
    Decided March 4, 1999.

      Coppedge, Leman & Ward, Warren N. Coppedge, Jr., David L. McGuffey, for appellant.

      Enoch Overby, for appellee.
   Pope, Presiding Judge.

The decision of the Court of Appeals in this case was reversed by the Supreme Court in Exxon Corp. v. Thomason, 269 Ga. 761 (504 SE2d 676) (1998). Accordingly, the decision in Thomason v. Exxon Corp., 227 Ga. App. 44 (487 SE2d 605) (1997), which was originally authored by Presiding Judge Birdsong, is hereby vacated, and the judgment of the Supreme Court is made the judgment of this Court. Therefore, in accordance with the opinion of the Supreme Court, the ruling of the trial court is affirmed.

Judgment affirmed.

Ruffin and Eldridge, JJ, concur.


text:
    A97A0543.
    AMERICAN MOTORISTS INSURANCE COMPANY v. NATIONAL UNION FIRE INSURANCE COMPANY.
    (513 SE2d 520)
    Decided March 4, 1999.

      E. Wycliffe Orr, Kristine E. Orr, for appellant.
   Pope, Presiding Judge.

The decision of the Court of Appeals in this case having been reversed by the Supreme Court, Nat. Union Fire Ins. Co. v. American Motorists Ins. Co., 269 Ga. 768 (504 SE2d 673) (1998), our decision in American Motorists Ins. Co. v. Nat. Union Fire Ins. Co., 227 Ga. App. 321 (489 SE2d 36) (1997), is hereby vacated, and the judgment of the Supreme Court is made the judgment of this Court.

Judgment affirmed.

Johnson, C. J, and Blackburn, J., concur.

Goldner, Sommers, Scrudder & Bass, Glenn S. Bass, Benjamin D. Ladner, for appellee.


author: McMURRAY, Presiding Judge.

text:
    A98A1789.
    STINSON v. ARTISTIC POOLS, INC. et al.
    (513 SE2d 510)
   McMURRAY, Presiding Judge.

Ronald C. Coker, individually and in his capacity as president of Artistic Pools, Inc. (“Artistic”), contracted to build a swimming pool with a surrounding concrete deck for Glen E. Stinson. Because the pool would not hold water and the concrete deck was crumbling, Stinson filed an action against Coker and Artistic for breach of contract and breach of warranty. Stinson later asserted a fraud claim after an excavation of the pool and the pool’s concrete deck revealed that Coker and Artistic had not installed certain structural supports (concrete piers and a grid of steel rods) that were allegedly required by the parties’ agreements. Stinson claims that he paid Coker and Artistic based on their intentionally false or reckless assurances that these reinforcing structures had been properly installed. The trial court granted summary judgment for Artistic and Coker as to Stinson’s fraud claim, finding that Stinson failed to present “evidence that [Artistic and Coker] had actual knowledge of the alleged fraud. . . The trial court also declared, in pertinent part, that Artistic and Coker were not required “to install the rebar grid in the [pool’s] deck. . . This appeal followed. Held:

1. Stinson contends the trial court erred in declaring that Artistic and Coker were not required “to install the rebar grid in the [pool’s] deck. . . .” To this issue, it is undisputed that rebar is a steel rod which is used for reinforcing concrete; that the parties’ contract was prepared by Coker and Artistic’s sales representative and project supervisor, Jeff Mittelman, that this agreement incorporated a schematic drawing for constructing the pool and the pool’s deck, and that this drawing includes the notation — “#5 REBAR 4-RUNS” — but does not indicate where such rebar was to be installed. It is also undisputed that, during the project, Artistic promised in a written “CHANGE ORDER” agreement to have “(11) pier holes w/steel installed around pool house and deep end section [for an additional] $198.00.”

While contractual construction is ordinarily a question of law for the court, Batson-Cook Co. v. Poteat, 147 Ga. App. 506, 507-508 (1) (249 SE2d 319), where terms of a written agreement are ambiguous, the meaning should be left to the jury. Nat. Mfg. &c. Corp. v. Dekle, 48 Ga. App. 515, 521 (2) (173 SE 408). “Ambiguity in a contract may be defined ‘as duplicity, indistinctness, an uncertainty of meaning or expression.’ See Novelty Hat Mfg. Co. v. Wiseberg, 126 Ga. 800 (55 S. E. 923).” Tarbutton v. Duggan, 45 Ga. App. 31 (5) (163 SE 298).

In the case sub judice, the parties’ initial contract and subsequent “CHANGE ORDER” agreement are capable of conflicting interpretations which cannot be resolved by application of the applicable rules of contractual construction. See OCGA § 13-2-2. Both agreements appear to require installation of steel rebar at the Stinson swimming pool project, but neither designates where or how much rebar must be installed. Nor does either agreement exclude the use of rebar in the swimming pool’s deck. The controlling question, then, is not whether Artistic and Coker were contractually obliged to use steel rebar at this swimming pool project, but where such rebar was to be installed. This issue must be resolved by a jury upon consideration of the surrounding circumstances and under instructions that any ambiguity in this regard may be resolved against Artistic and Coker since it is undisputed that their agent, Jeff Mittelman, drafted that part of the agreements (on forms provided by Artistic) which are the subject of the ambiguities in question. See Gram Corp. v. Wilkinson, 210 Ga. App. 680 (1) (437 SE2d 341). It follows that the trial court erred in declaring that neither the construction contract nor the “CHANGE ORDER” agreement required Artistic and Coker “to install the rebar grid in the [pool’s] deck. . . .”

2. Stinson challenges summary judgment in favor of Coker and Artistic as to his fraud claim, arguing that Artistic and Coker’s reckless, if not knowingly false, representations regarding the use of steel rebar and concrete piers are sufficient to sustain an action for fraud. We agree. “Reckless representation of facts as true without knowledge is actionable as a species of fraud without scienter. Rose Mill Homes v. Michel, [155 Ga. App. 808, 809-810 (2) (273 SE2d 211)].” Brookshire v. Digby, 224 Ga. App. 512, 516 (481 SE2d 250). Consequently, even if Artistic and Coker did not intend to deceive Stinson by their inaccurate representations that steel rebar and concrete piers had been installed, not knowing whether these representations were true may be considered reckless representations of facts and equivalent to actual knowledge of the faulty representations. See Lister v. Scriver, 216 Ga. App. 741, 745 (1) (a) (456 SE2d 83). “Fraud is of itself subtle, and slight circumstances may be sufficient to carry conviction of its existence. Code Ann. § 37-706[, now OCGA § 23-2-57].” Rose Mill Homes v. Michel, 155 Ga. App. 810 (2), supra.

The trial court erroneously relied on Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27 (343 SE2d 680), in finding “that [Stinson’s] deposition testimony regarding [Artistic and Coker’s] knowledge of construction of the pool deck conflicts with [his] affidavit.” Although Stinson, an attorney, indicated during his deposition that his fraud claim is not dependent on proof that Artistic and Coker actually observed the project’s concrete subcontractor install the pool’s deck, this testimony does not conflict with Stinson’s sworn statement that the project’s supervisor, Jeff Mittelman, informed him that he (Mittelman) was present and supervised the grading and installation of the pool’s concrete piers and decking. In fact, Stinson corroborated this statement in his deposition by testifying that “Mittelman was there” (on the job-site) when the project’s concrete subcontractor “was finishing” the pool’s deck and assuring Stinson that “we poured lots of piers here for you and we poured — we put the steel in here for you, and you shouldn’t have any problem with this deck.”

Decided March 4, 1999.

Brian D. Hardison, for appellant.

Magill & Atkinson, Thomas E. Magill, Joseph M. Maguire, Jr., Shapiro, Fussell, Wedge, Smotherman & Martin, Robert B. Wedge, Jason A. Cooper, for appellees.

The trial court erred in granting Artistic and Coker’s motion for summary judgment with regard to Stinson’s fraud claim. Genuine issues of material fact remain as to Coker and Artistic’s liability for making knowingly false or reckless assurances to Stinson that his pool and pool decking had been constructed in accordance with the parties’ agreements. See Brookshire v. Digby, 224 Ga. App. 516, supra; Hulsey Pool Co. v. Troutman, 167 Ga. App. 192, 193 (2) (306 SE2d 83). Compare Ideal Pool Corp. v. Baker, 189 Ga. App. 739, 740 (1) (377 SE2d 511), where the evidence was insufficient to show fraud because, unlike the circumstances in the case sub judice, the contractor could not have known that a defective wood product he installed, and promised would not rot for 20 years, was improperly treated by the product’s manufacturer.

Judgment reversed.

Eldridge, J., and Senior Appellate Judge Harold R. Banke concur.


author: Ruffin, Judge.

text:
    A98A2338, A98A2339.
    In the Interest of C. J. V. et al., children.
    (513 SE2d 513)
   Ruffin, Judge.

These are related appeals from an order of the juvenile court of Cobb County, terminating the father’s parental rights to C. J. V., and the mother’s parental rights to C. J. V., A. B., and T. B. Both appellants challenge the sufficiency of the evidence supporting this order. Because there is clear and convincing evidence which supports the terminations, we affirm.

On appeal, we must determine “whether, after reviewing the evidence in the light most favorable to the appellee, any rational trier of fact could have found by clear and convincing evidence that the natural parent [s’] right to custody should be terminated. On appeal, this Court neither weighs evidence nor determines the credibility of witnesses; rather, we defer to the trial court’s factfinding and affirm unless the appellate standard is not met.” (Citations and punctuation omitted.) In the Interest of C. L. R., 232 Ga. App. 134 (1) (501 SE2d 296) (1998).

Before terminating a parent’s rights, a juvenile court, pursuant to OCGA § 15-11-81 (a), must employ a two-step procedure. In the Interest of C. L. R., supra. “First, the court shall determine whether there is present clear and convincing evidence of parental misconduct or inability as provided by OCGA § 15-11-81 (b). Secondly, if there is clear and convincing evidence of such parental misconduct or inability, the court shall then consider whether termination of parental rights is in the best interest of the child. Parental misconduct or inability is found where (1) the child is deprived, (2) the lack of proper parental care or control by the parent in question is the cause of the child’s deprivation, (3) the cause of deprivation is likely to continue or will not likely be remedied, and (4) the continued deprivation will cause or is likely to cause serious physical, mental, emotional, or moral harm to the child. OCGA § 15-11-81 (b) (4) (A).” (Citations and punctuation omitted.) Id.

In these cases, the evidence shows that in April 1996, the police placed then one-year-old C. J. V., four-year-old A. B., and six-year-old T. B. in protective custody after finding them alone in a motel room where they lived with appellants. When the police found A. B., her wrists and ankles had been bound with tape and were connected with a shoestring, forcing her into a fetal position. A. B. had a cracked shoulder, abrasions on her wrists and ankles, and a fading black bruise on the back of her thigh. The appellant-father was arrested and pled guilty to felony cruelty to children and was sentenced to three years, to be served on probation. He also pled guilty to three counts of reckless conduct and was sentenced to one year, to be served on probation. On May 29, 1996, the juvenile court awarded temporary legal custody to the Department of Family & Children Services (DFCS) upon adjudicating the children deprived on the basis of the motel incident; the father’s incarceration for cruelty to children, reckless conduct, and contributing to the delinquency of a minor; and the mother’s agreement to allow the children to remain in protective custody.

Following a hearing on July 7, 1997, the juvenile court ordered the suspension of visitation between the children and their parents based on “the seriousness of the trauma they suffered” and “the personal observations of the caseworker during the visitations of the children with their mother.” Thereafter, following a hearing on November 14, 1997, the court extended temporary custody to DFCS for an additional year. On October 28, 1997, DFCS filed a petition to terminate appellants’ parental rights.

On November 20, 1997, the father’s probation was revoked after his arrest on September 4, 1997, for felony possession of cocaine. Six days later he pled guilty to this offense and was sentenced to ten years, to be served on probation. On April 21-22, 1998, the juvenile court conducted a hearing on the termination of appellants’ parental rights. Janet Crouse, who worked for the Cobb County Police Department’s crimes against children unit at the time, testified regarding the April 1996 incident which involved the children being left alone in a motel room and A. B.’s severe physical abuse.

In addition to the criminal charges stemming from the motel incident, the father has a considerable criminal history. He has served time in jail in New York, Florida and Georgia for crimes ranging from petty larceny to numerous drug offenses. In April 1996, the father pled guilty to felony possession of cocaine. In November 1997, he again pled guilty to cocaine possession. At the time of the hearing, the father was incarcerated, not knowing when he would be released on parole.

Although the father attended parenting classes, the instructor testified that he did not participate, but “just went through the motions.” The father testified that he has not paid any child support because DFCS did not notify him of what amount to pay. The co-director of Living Without Violence, upon screening the father, found that he was an inappropriate candidate for the program because he would not admit to any abusive or controlling behaviors.

The mother testified that when she was 13, she began dating a 36-year-old man whom she later married and who fathered T. B. and A. B. The mother acknowledged that this man physically abused her on a regular basis and that he was “in and out of detox.” At the age of sixteen, she gave birth to T. B., and two years later, she gave birth to A. B. When A. B. was still an infant, both children were taken into protective custody and placed in foster care in New York. During counseling relating to the children’s foster care, the mother was treated for co-dependency issues as well as for her own sexual abuse as a four-year-old.

In 1995, the mother married appellant-father, who she acknowledged used drugs and alcohol before and after they were married. After the father was incarcerated following his arrest for the April 1996 motel incident, she and the children moved in with a “complete stranger” who had an extensive history of violent criminal offenses. Before the children were removed from her custody, this man “harassed” her, and on at least one occasion, he physically abused her. Even though the mother knew that the father had severely beaten A. B., she and the children continued to live with him after he was released from jail and until his arrest for cocaine possession in September 1997. Although the mother claims they have been separated since his arrest, the father has remained incarcerated, and she presently lives in his trailer and has not filed for divorce. Appellants also share a newborn daughter, who was not part of the termination proceeding.

The mother also testified extensively about her sporadic employment history. At the time DFCS first obtained custody of the children, the mother had worked at McDonald’s for two days. She then worked at Piccadilly Cafeteria for eight months and later for a cleaning service. At the time of the hearing, the mother worked as a caretaker for the elderly.

Several witnesses testified regarding the mother’s poor parenting skills. The parenting class instructor testified that the mother had difficulty grasping the fact that she was her children’s mother, not their playmate, and that she was responsible for protecting them. A foster care worker observed the mother during her visits with the children and testified that A. B. would “act out” during the visits. Although the mother would threaten the children with “time out” and taking things away from them for misbehaving, she never followed through. During one visit, T. B. kicked his mother, and C. J. V. was given little attention at all. The foster care worker testified that the children’s problems at these visits were some of the most severe she had ever seen.

The foster care worker assigned to the children’s case testified that although the parents obtained psychological assessments, they did not pay for them as required by their court-ordered reunification plan; thus the reports could not be released. The mother’s drug and alcohol assessment revealed that although she was not addicted to drugs, she should attend a co-dependency class.

With regard to the children, two psychologists testified regarding A. B.’s considerable emotional, cognitive and behavioral problems. One psychologist described A. B. as one of the most traumatized children she had seen in twelve years. The other psychologist who presently treats A. B. testified that A. B. is cognitively delayed and emotionally fragile, traits frequently seen in abused children. She testified that on two occasions while she was in foster care, A. B. had acted out sexually, including one incident where she put a pencil in a two-year-old’s rectum. After A. B. had been taken into protective custody and started receiving psychological treatment, she began to show signs of improvement. However, when the mother still had visitation privileges, A. B. would regress considerably following these visits. Since the suspension of the visits, A. B.’s behavior has improved considerably.

A. B.’s special needs kindergarten teacher testified that during the 1996-1997 school year, A. B. was emotional, fearful and destructive to her surroundings and to herself. A. B.’s “outbursts” at school were more pronounced around her mother’s visits, and her regressive behavior would last for several days following these visits.

Although T. B. was not receiving psychological counseling at the time of the hearing, he had received psychological evaluations and treatment in the past. The psychologist who initially evaluated T. B. testified that he was preoccupied with violence between adult figures and that he was afraid his stepfather was going to hurt or kill A. B. The psychologist who had previously treated T. B. testified that he “takes care of [A. B.] and that he could possibly regress if she started doing better or when he reaches adolescence. At the hearing’s conclusion, the children’s court-appointed special advocate and their guardian ad litem recommended that appellants’ respective parental rights be terminated. The juvenile court entered an order terminating the father’s parental rights to C. J. V. and the mother’s rights to C. J. V., A. B., and T. B.

In their separate appeals, appellants essentially contend that the juvenile court’s order is not supported by clear and convincing evidence that their parental rights should have been terminated under OCGA § 15-11-81 (b). The father asserts there was only evidence of abuse “of a child that is not his,” and that no evidence was presented to show that C. J. V. was likely to suffer serious harm if his parental rights were not terminated. The mother asserts that the father caused her children’s deprivation, and that such deprivation was not likely to continue since he was incarcerated. Both appellants’ assertions lack merit.

First, there is no issue as to whether appellants’ respective children were deprived. OCGA § 15-11-81 (b) (4) (A) (i). A child is deprived if he “[i]s without proper parental care or control ... or other care or control necessary for his physical, mental, or emotional health or morals.” OCGA § 15-11-2 (8) (A). The juvenile court adjudicated the children deprived in a May 29, 1996 order. “As [appellants] did not appeal the original order of the juvenile court finding that [their] children were deprived, [they] cannot now complain about that finding.” (Punctuation omitted.) In the Interest of N. J. W., 233 Ga. App. 130, 133 (1) (a) (503 SE2d 366) (1998); see also In the Interest of C. L. R., supra at 136-137 (1) (a).

Secondly, the evidence is clear and convincing that appellants’ “lack of proper parental care and control” was the cause of the children’s deprivation. OCGA § 15-11-81 (b) (4) (A) (ii). The father’s assertion that he did not cause C. J. V.’s deprivation because he abused A. B. is without merit. Clearly, “[e]gregious conduct or evidence of past egregious conduct of the parent toward the child or toward another child of a physically, emotionally, or sexually cruel or abusive nature” is grounds upon which a juvenile court can determine that a child is without proper parental care and control. (Emphasis supplied.) OCGA § 15-11-81 (b) (4) (B) (iv). Additionally, clear and convincing evidence of an “[i]njury . . . of a sibling under circumstances which constitute substantial evidence that such injury . . . resulted from parental neglect or abuse” is also a basis upon which a court can conclude a parent caused his child’s deprivation. OCGA § 15-11-81 (b) (4) (B) (vi); see also In the Interest of F. G., 233 Ga. App. 153 (503 SE2d 387) (1998) (appellant’s severe abuse of his partner’s child a factor in the termination of his rights to his biological children).

Moreover, the cause of C. J. V.’s deprivation at the hands of his father does not end with a discussion of A. B.’s abuse. “Among the factors to be considered in determining whether [a] child is without ‘proper parental care or control’ is the parent’s ‘excessive use of or history of chronic unrehabilitated abuse of intoxicating liquors or narcotic or dangerous drugs’ that has rendered the parent incapable of adequately providing for the child. OCGA § 15-11-81 (b) (4) (B) (ii) .” In the Interest of C. L. R., supra at 137 (1) (a). Additionally, “[c]onviction of the parent of a felony and imprisonment therefor which has a demonstrable negative effect on the quality of the parent-child relationship” are also grounds for finding that a child is without proper parental care and control. OCGA § 15-11-81 (b) (4) (B) (iii) ; see also In the Interest of D. T., 221 Ga. App. 328, 329 (1) (471 SE2d 281) (1996) (repeated inability to overcome drug addiction, with its consequent incarceration and loss of employment, supports finding that termination of parental rights was in best interests of the child). “A conviction of a crime and incarceration [do] not always compel a termination of parental rights but will support such a ruling when adequate aggravating circumstances are shown to exist.” (Punctuation omitted.) In the Interest of N. J. W., supra at 133. Clearly, the evidence shows that the father was a habitual drug abuser with numerous incarcerations and felony convictions. Moreover, the father’s past convictions include felonious conduct toward a child. See In the Interest of F. G., supra; In the Interest of S. B. H., 216 Ga. App. 861 (456 SE2d 620) (1995). Accordingly, there was ample clear and convincing evidence to support the court’s finding that C. J. V.’s deprivation was caused, in part, by his father. See In the Interest of D. T, supra at 329.

The mother’s argument that the children’s deprivation was caused by the father is equally without merit. The evidence is clear and convincing that the children’s deprivation was caused, in part, by the mother’s fundamental lack of parenting skills. Although the father was primarily responsible for the brutal abuse of his stepdaughter in her siblings’ presence, the mother’s passivity in response to this tragedy renders her culpable as well. See In the Interest of D. C. N. K., 232 Ga. App. 85, 89 (501 SE2d 268) (1998) (“the essence of the evidence shows a form of passive neglect or indifference”). Moreover, instead of shielding her children from the father, she moved back in with him when he was released from jail, even after he pled guilty to cruelty to children and reckless conduct. We also note that while her husband was incarcerated, the mother decided to take her young children and move in with an abusive stranger.

Unfortunately, there is even more evidence to support the court’s finding that the mother is a significant cause of her children’s deprivation. From their earliest days, the children have spent most of the their time in foster care. When they were not in foster care, they were subjected to a nomadic lifestyle, which included living with their mother’s choice of abusive companions. Moreover, as the parenting class instructor testified, the mother was unable to grasp that she was supposed to protect her children. It was also apparent from her visits with her children that she either could not or would not assume the role of parent, but rather conducted herself as her children’s playmate. In the case of the baby, C. J. V., the mother was so busy trying to control A. B. and T. B. that she virtually ignored him. The mother’s visits with A. B. had a detrimental effect on any improvement A. B. was making while out of her mother’s control. In view of the mother’s failure to protect her children and her overall lack of parenting skills, we agree with the trial court’s conclusion that there was clear and convincing evidence that the children’s deprivation originated in significant part from the mother.

Having found that C. J. V., A. B., and T. B. are deprived and that such deprivation is caused by their respective parents, the next factor to be considered is whether their deprivation would likely continue in appellants’ care. OCGA § 15-11-81 (b) (4) (A) (iii). The father does not appeal that portion of the juvenile court’s order holding that C. J. V.’s deprivation would likely continue in his care. The mother, on the other hand, asserts that with the father in jail and out of her life, she will be a better parent. Thus, we address this factor only as it relates to the mother.

“In addition to evidence of present parental misconduct or inability, evidence of past conduct may be considered in determining whether the deprivation would be likely to continue.” (Punctuation omitted.) In the Interest of E. C., 225 Ga. App. 12, 16 (482 SE2d 522) (1997). “Such an inference is appropriate, since the juvenile court is not required to reunite [the children] with appellant in order to obtain current evidence of deprivation or neglect.” Id.

Here, the evidence strongly supports the juvenile court’s finding that the mother is unable to manage the lives of her children. Although the mother is currently working and able to pay for her own living expenses, her past work history is sporadic at best, and there is no indication that she is emotionally or physically able to manage three children, one of whom is in therapy for considerable emotional problems and two of whom will most likely need therapy in the future. Moreover, the mother’s considerable history of associating herself with abusive men mitigates against returning the children to her. As the juvenile court explained, “She has a lifelong history of doing that and the Court is obviously concerned that she’ll do that again, particularly if she was stressed by having these children back in her home. Accordingly, the evidence supports a finding that the deprivation is likely to continue if the children remain in the mother’s care.”

A finding that the children would likely be harmed by the continued deprivation is also supported by the record. OCGA § 15-11-81 (b) (4) (A) (iv). The mother does not appeal that portion of the court’s order holding that her children would likely be harmed by their continued deprivation. Thus, we address only the father’s contention that C. J. V. was not likely to suffer serious harm if his parental rights were not terminated.

The court found that the father demonstrated a serious lack of interest in C. J. V. by (1) failing to comply with the court’s reunification plans; (2) failing to complete the required court-ordered psychological evaluation; (3) failing to complete the violence program as ordered; and (4) failing to adequately participate in the parenting course. The court also noted the father’s extensive criminal background and present incarceration. Under these circumstances, we agree with the trial court’s determination that continued deprivation is likely to cause C. J. V. serious physical, mental, emotional or moral harm. OCGA § 15-11-81 (b) (4) (A) (iv). Compare In the Interest of K. J., 226 Ga. App. 303, 308 (2) (b) (486 SE2d 899) (1997) (although father incarcerated for most of child’s life, there was evidence father and child had a positive relationship).

Both appellants assert that the trial court’s conclusions were not supported by explicit findings. It is true that “an order terminating parental rights must contain explicit findings supporting the conclusions” and that “[a] dry recitation that certain legal requirements have been met is insufficient to satisfy the requirements of the law.” (Punctuation omitted.) In the Interest of K. J., supra at 307 (2) (b). However, such is not the case here where the trial court’s order is amply supported by numerous, explicit findings.

Decided March 4, 1999.

David C. Butler, for appellant (case no. A98A2338).

Baskin & Baskin, Brenda Godfrey, Bobby G. Adkins, Jr., for appellant (case no. A98A2339).

Thurbert E. Baker, Attorney General, Dennis R. Dunn, Deputy Attorney General, William C. Joy, Senior Assistant Attorney General, Shalen A. Sgrosso, Stephanie B. Hope, Assistant Attorneys General, Sanders B. Deen, for appellee.

“Once the trial court establishes parental misconduct or inability, the second part of the test for determining whether parental rights should be terminated is whether such termination is in the best interest of the child [ren], after considering the physical, mental, emotional, and moral condition and needs of the child [ren] who [are] the subject of the proceeding, including the need for a secure and stable home. OCGA § 15-11-81 (a).” (Citation and punctuation omitted.) In the Interest of M. E. C., 228 Ga. App. 9, 10 (491 SE2d 107) (1997). “The same evidence showing parental misconduct or inability may, and here does, establish this requirement.” (Punctuation omitted.) In the Interest of C. L. R., supra at 138 (2). Accordingly, we conclude that the juvenile court’s decision was supported by clear and convincing evidence, and that it was in the best interests of C. J. V., A. B., and T. B. for the court to terminate appellants’ parental rights. See In the Interest of N. J. W., supra; In the Interest of D. C. N. K., supra.

Judgment affirmed.

Pope, P. J., and Beasley, P. J., concur.

       On January 12,1998, the biological father of A. B. and T. B. consented to the termination of his parental rights. Appellant-father is A. B. and T. B.’s stepfather.


text:
    A99A0025.
    SOLOMON v. THE STATE.
    (513 SE2d 520)
   Johnson, Chief Judge.

Darren Solomon was arrested in Atlanta’s Hartsfield International Airport and charged with trafficking in cocaine. He was found guilty after a bench trial. Solomon contends the trial court erred in denying his motion to suppress because the agents lacked sufficient basis to stop him and did not obtain valid consent to search his person. We disagree.

When reviewing a trial court’s order on a motion to suppress, the appellate court construes the evidence most favorably to the upholding of the trial court’s findings and judgment. State v. Wright, 224 Ga. App. 753, 754 (482 SE2d 441) (1997). Viewed in such a light, the evidence shows the following: A GBI agent assigned to the airport’s drug task force received a tip that Solomon’s co-defendant, Lamont Fulwood, had traveled to Fort Lauderdale to purchase a large quantity of cocaine. The informant advised the agent that Fulwood would return in a couple of days. The agent contacted the airline and found that Fulwood had traveled to Fort Lauderdale the day before and was accompanied by Solomon. The agent learned from the informant that Solomon and Fulwood were cousins and that the cocaine was likely going to be strapped to Solomon’s body. The informant added that the two men would probably split up around the taxicab stand and catch a taxicab to Fulwood’s house. The agent considered the informant reliable because he had previously supplied information in three or four other cases.

Three days later, the agent was told by airline security that Solomon and Fulwood had boarded a flight from Fort Lauderdale to Atlanta. Agents watched the men get off the plane in Atlanta, go to the baggage claim area, wait, and then go outside to the taxicab stand without claiming any checked baggage. Solomon had a carry-on bag. Solomon and Fulwood were talking to a taxicab driver, and Solomon was about to get into a cab.

Several plainclothes agents approached Solomon and Fulwood. One of the agents asked if Solomon minded if he talked to him. At first Solomon said he did mind; then when the agent identified himself as a police officer, he said it was okay. The agent asked Solomon why he was in Atlanta, to which Solomon replied he was visiting an uncle here. When asked for the uncle’s last name, Solomon did not respond. The agent asked Solomon what kind of work he did, to which Solomon replied that he did construction work. When the agent asked for his employer’s name, Solomon said he did not know, The agent explained that he was trying to stop drugs from going in and out of the airport and asked Solomon if he could search his bag and his person. Solomon said he could. As the agent started to search the bag, he asked Solomon if one of the other agents could search his person. Solomon said he could not. The agent asked Solomon if he had something to hide. Solomon replied that he did not. The agent then asked if Solomon had any drugs on his person, to which Solomon gave no response. The agent told Solomon that, based on the information he had, he would be detaining Solomon and getting a warrant to search Solomon’s person. No contraband was found in the bag.

The agent placed handcuffs on Solomon and took him to a police precinct inside the airport. Once there, Solomon asked the agent how long it was going to take. The officer replied “as long as it’s going to take me to write a search warrant and to find a Judge to sign the search warrant.” Solomon told the officer to “go ahead and search.” The agent found packages containing 650 grams of cocaine taped to Solomon’s thighs.

1. The initial stop. Contrary to Solomon’s contention, the agents did have a particularized and objective basis for stopping him.

“A police officer may make a brief, investigatory stop, provided the officer has a reasonable, articulable suspicion that the person stopped has been, is, or is about to be engaged in criminal activity, and the nature and extent of the detention [are] minimally intrusive.” (Citations and punctuation omitted.) Davis v. State, 225 Ga. App. 627, 628 (2) (484 SE2d 655) (1997). In evaluating whether there is reasonable suspicion, “ ‘ “the totality of the circumstances — the whole picture” ’ ” must be taken into account. Britton v. State, 220 Ga. App. 120, 122 (469 SE2d 272) (1996).

In this case, the agents were suspicious that Solomon was carrying drugs because they had information that Solomon’s cousin flew to Fort Lauderdale, a known drug-source city, to get drugs and bring them back to Atlanta, he was traveling with Solomon, and the drugs were likely strapped to Solomon’s body. Agents observed Solomon and his cousin deplane and then wait in and leave the baggage claim area with no checked baggage. The agents observed the men go to the taxicab stand and prepare to take a taxicab, as predicted by the informant.

“The Fourth Amendment does not require a policeman who lacks the precise level of information necessary for probable cause to arrest to simply shrug his shoulders and allow a crime to occur or a criminal to escape. On the contrary ... it may be the essence of good police work to adopt an intermediate response. A brief stop of [an] individual, in order to determine his identity or maintain the status quo momentarily while obtaining more information, may be most reasonable in light of the facts known to the officer at the time.” (Citations and punctuation omitted.) Stewart v. State, 227 Ga. App. 659, 660 (2) (490 SE2d 194) (1997). In light of the information supplied by the informant and other sources, including the officers’ observations and confirmations from the airline, the stop was not unreasonable. See id. at 662 (2); Stanley v. State, 213 Ga. App. 95, 96 (443 SE2d 633) (1994); Owens v. State, 192 Ga. App. 671, 673-674 (1) (385 SE2d 761) (1989).

2. The search of Solomon. Solomon argues that he did not voluntarily consent to the search of his person. To support his position, Solomon cites Murphy v. State, 230 Ga. App. 365 (496 SE2d 512) (1998), and Darby v. State, 216 Ga. App. 781, 783 (2) (455 SE2d 850) (1995), which hold that “ ‘[w]hen an officer represents to an accused that a warrant to search will be obtained if consent is refused, and does not have probable cause to secure the warrant, then the accused’s consent is invalid.’ ” We do not agree that the holdings in those cases require suppression of the evidence in this case.

Decided March 4, 1999.

Stephen T. Smith, for appellant.

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

First, we note that the agent’s response to Solomon’s query regarding how long he would be detained — “as long as it’s going to take me to write a search warrant and to find a Judge to sign the warrant” — simply does not fall within the category of “last ditch ploys aimed at avoiding the requirement for a probable cause determination before a . . . magistrate.” Murphy, supra at 368.

Second, where the details of a tip are corroborated by the personal observations of the investigating officers, a reliable informant’s tip is sufficient to establish probable cause for a warrantless search. Dupree v. State, 232 Ga. App. 573, 574 (1) (502 SE2d 511) (1998); see Wells v. State, 212 Ga. App. 60, 63 (2) (441 SE2d 460) (1994). In this case, the agents received information from a reliable informant that Solomon’s cousin was flying to Fort Lauderdale to get cocaine, that he would return to Atlanta in a couple of days, that Solomon would likely have the cocaine strapped to his body, and the men would separate before or at the taxicab stand. Prior to the search, the agents confirmed all but the information that the drugs were strapped to Solomon’s body. They also learned that Solomon paid for his ticket in cash just before the flight, watched the men stand at baggage claim and leave without picking up any luggage, and were given suspicious responses by Solomon. Considering the totality of the circumstances, the trial court was authorized to find that the agents had probable cause to search Solomon. See generally Lester v. State, 226 Ga. App. 373, 376 (1) (487 SE2d 25) (1997). The trial court did not err in denying the motion to suppress. See generally Dupree, supra.

Judgment affirmed.

McMurray, P. J, and Andrews, J., concur.


author: Smith, Judge.

text:
    A98A1893.
    BROOKS BROWN INSURANCE AGENCY, INC. v. HARDEN et al.
    (513 SE2d 755)
   Smith, Judge.

We granted the application of Brooks Brown Insurance Agency, Inc. (“Brown”) for interlocutory appeal from the denial of its motion for summary judgment in an action brought by Frances Harden and her daughter, Elaine Turner, alleging that Brown was negligent in several respects. Brown procured a homeowner’s policy for Harden covering premises owned by Harden in which her daughter lived. The policy was issued by Southern Insurance Underwriters, Inc. (“SIU”) and underwritten by Lloyds, London. The premiums were financed by Siuprem, Inc. The policy was canceled by Siuprem for nonpayment of premiums, and the home was destroyed by fire shortly thereafter. We conclude that, for several reasons, the issue of whether Brown was negligent in any respect is irrelevant and that the trial court erred in denying Brown’s motion for summary judgment.

The record shows that in October 1995, Harden applied for a homeowner’s policy through Brown. Brown placed Harden’s business with Lloyds, through SIU. The policy was financed through Siuprem. Brown entered Harden’s mailing address in its office computer as “P.O. Box 283, Washington, GA, 30673,” which was correct. The address of the insured premises was in Lincolnton, Georgia.

In November 1995, Harden received a copy of the policy, which included a certificate of insurance. The certificate listed her mailing address as “P.O. Box 283, Lincolnton, GA 30817.” (Emphasis supplied.) Harden made a down payment in November 1995, and she made premium payments on the policy in December 1995, January and February 1996, and two payments in April 1996. All premium payments were made in Brown’s office and forwarded to Siuprem. After April 26) no payments were made to Brown on the policy. On June 7, 1996, Brown received a notice from Siuprem that Harden’s policy had been canceled.

Harden testified that she made all her premium payments in person at Brown’s office and that whoever was there would look up the amount owed on the computer. She testified she made a premium payment in cash in May, but could not find the receipt. During the last week of June, she went to Brown’s office to make her June payment, and when her records were brought up on Brown’s office computer, she discovered her policy had been canceled. Brooks Brown himself was not in the office, and Harden requested that office personnel find out if she could reinstate the policy and how much she would be required to pay. Lacey Pullen, who was working in the office that day and spoke with Harden, testified that she called Siuprem concerning reinstatement, and that she called Harden several times before she left work that day but could not reach her. Harden acknowledged that her answering machine was broken and that she never called Brown until after the premises were destroyed by fire on July 5, 1996. The insurer denied coverage on the ground that the policy had been canceled and was not in effect at the time of the fire.

1. Brown contends that because the policy was not properly canceled, the trial court erred in denying its motion for summary judgment. We agree. The premium financing agreement contained a power of attorney authorizing Siuprem to cancel the insurance for nonpayment of premiums. OCGA § 33-22-13 provides that when a premium finance agreement contains a power of attorney authorizing the premium finance company to cancel the policy, it may not cancel the policy unless it does so in accordance with the statute. OCGA § 33-22-13 (a). At least ten days written notice must be given to the insured of the intent of the premium finance company to cancel the policy unless the default is cured within that time. OCGA § 33-22-13 (b). Also, a copy of the ten-day notice of intent to cancel must be sent to the insurance agent or insurance broker indicated on the premium finance agreement. Id. Both Brown and Harden denied receiving a ten-day notice of intent to cancel, and the record does not include any indication that such a notice was sent.

The language of the statute must be strictly construed. Moore v. Scottsdale Ins. Co., 264 Ga. 808, 809 (450 SE2d 198) (1994). And the burden is on the premium finance company to show strict compliance. Clark v. Superior Ins. Co., 209 Ga. App. 290, 292 (1) (433 SE2d 394) (1993). Because no evidence was presented that Siuprem complied with OCGA § 33-22-13 (b), the policy was not properly canceled.

Moreover, the notice of cancellation itself fails to comply with the statute. OCGA § 33-22-13 (c) (1) provides that after the ten-day period, the premium finance company must give the insurer a notice of cancellation and at the same time notify the insured of the action taken. The notice to the insured “shall contain the date and time the policy is to be canceled, which date shall be after the date of mailing of such notice.” No evidence was presented that Siuprem gave such notice to Harden. But the notice sent to Brown was dated June 4, 1996, and purported to cancel Harden’s policy effective the same day.

2. Brown also contends it was entitled to summary judgment for another reason. Harden maintains that Brown was negligent in transmitting to Siuprem a wrong mailing address for her. But even assuming that Siuprem complied with the requirements for cancellation set forth in OCGA § 33-22-13 and the policy was properly canceled, the cancellation was not proximately caused by any negligence on Brown’s part. It is undisputed that Harden received a copy of the policy months before the fire, and the certificate of insurance included a request that the insured read the certificate and return it to SIU if it was incorrect in any way. Harden did not do so. Even absent that provision, it was Harden’s duty to read the policy and to notify the insurer if it was incorrect. See generally Atlanta Women’s Club v. Washburne, 207 Ga. App. 3 (427 SE2d 18) (1992). The mailing address was not something for which Harden relied upon Brown’s expertise as an insurance agent. An examination of her policy would have made it “readily apparent” that it contained the wrong mailing address. Id. at 5. If, indeed, Harden did not receive the notices because they were sent by Siuprem, but to the wrong address, Harden’s own failure to read her policy and correct that address was the proximate cause of her failure to receive them.

Decided March 5, 1999.

Lokey & Smith, Malcolm Smith, Kevin A. Doyle, for appellant.

Crim & Bassler, Harry W. Bassler, Raymond J. Doumar, for appellees.

Under either theory, Brown’s negligence, if any, is not relevant, and the trial court erred in denying its motion for summary judgment.

Judgment reversed.

Johnson, C. J, and Barnes, J., concur.

       We note that SIU and Siuprem have attempted to introduce such evidence to this Court through an “Appendix” to their brief. This “Appendix” reproduces various portions of the record on appeal, but it also includes “evidence” not presented below, such as an affidavit from a Siuprem officer stating that an “intent to cancel” letter was sent to Harden on May 21, 1996. We have not considered this material.


text:
    A98A1931.
    WORKMAN v. SYSCO FOOD SERVICES OF ATLANTA.
    (513 SE2d 523)
   McMURRAY, Presiding Judge.

Plaintiff Sysco Food Services of Atlanta filed this action against ten related corporate, partnership, and individual parties seeking recovery on open accounts and personal guaranties. Defendant Workman appeals from a grant of summary judgment in favor of plaintiff which imposes liability upon her based upon six individual personal guaranties. Held:

Defendant Workman’s second defense was that the guaranties “sued upon by Plaintiff do not specify the obligations guaranteed by this Defendant inasmuch as said Guaranties do not contain the name of the company for which the Guaranties would apply and are otherwise incomplete. Therefore, said Guaranties are null and void insofar as they impose liability upon this Defendant.” Shortly prior to the entry of summary judgment in the case sub judice, this Court decided a case involving a similarly named plaintiff and very similar issues. As in the case sub judice, the individual personal guaranty sought to be enforced in Sysco Food Svcs. v. Coleman, 227 Ga. App. 460 (489 SE2d 568), omitted the name of the principal debtor and name of the person individually guaranteeing the indebtedness and left blank the spaces provided for this information. This Court held that due to these omissions there was a failure to satisfy the requirements of the statute of frauds and that the guaranty was unenforceable.

The greater part of plaintiff’s argument and citations of authority raise only issues considered in this Court’s earlier decision. However, plaintiff does suggest three bases for factually distinguishing Coleman.

First, plaintiff maintains that Workman has deposed that it was her intent to guarantee the debt of the entities. This is a factual difference, since the Coleman defendant denied signing the individual personal guaranty, but not a material one since the authenticity of the signature is apparently assumed and plays no role in reaching the Coleman decision. Furthermore, we stated in Coleman that the rule enforced there is applicable even where the intent of the parties to create a binding guaranty agreement is manifestly obvious. Id. at 461.

Next, plaintiff argues that the documents in the present case differ from those in Coleman. Whether this is correct cannot be clearly determined. In both cases the “Terms Agreement” and “Individual Personal Guaranty” appear on the same paper, and the two sections do not incorporate each other by reference or use the same terms. In the present case, the two sections are on the same page, and on the reverse is a form referred to below as a credit application. The so-called credit application is not captioned as such but does contain questions appropriate for that purpose. In Coleman the documents attached to the complaint include one described as a new account form. We do not know whether the new account form and the credit application are one and the same, or whether all of the forms are identical. However, any difference has not been shown to be material.

In the case sub judice, on each of six documents identified as credit applications and in spaces labeled “ship to” are the names and addresses of the entities to which plaintiff provided goods and services. On the reverse side of these documents, along with the terms agreement forms, are individual personal guaranty forms signed by Workman. As in Coleman, on the guaranty forms signed by Workman the spaces provided for the name of the principal debtor and the name of the person individually guaranteeing the indebtedness are left blank. Just as in Coleman, the guaranty form does not incorporate by reference or use the same terms as any other form. Under Coleman, nothing may be inferred merely from the presence of another form on the same paper.

Finally, Coleman rests in part upon application of OCGA § 10-7-3. Plaintiff argues that Workman is a compensated surety and thus not entitled to the application of the extremely protective rule of strictissimi juris set forth in that statute as explained in Houston Gen. Ins. Co. v. Brock Constr. Co., 241 Ga. 460, 461 (1), 464 (2) (246 SE2d 316). However, plaintiff is incorrect in suggesting that Workman is a compensated surety. While Workman has ownership interests in the businesses which are the unnamed principal debtors and may have eventually derived some benefit from their success, the consideration for her signing the guaranties did not flow to her, but instead to the businesses. As an uncompensated surety, Workman was entitled to the protection of OCGA § 10-7-3. Upshaw v. First State Bank, 244 Ga. 433, 434 (.260 SE2d 483).

Decided March 5, 1999.

Small, White & Marani, Gus H. Small, Jr., for appellant.

Victoria J. Hoffman, for appellee.

In summation, we find the present case indistinguishable and controlled by the decision of this Court in Sysco Food Svcs. v. Coleman, 227 Ga. App. 460, supra. The superior court erred in granting plaintiff’s motion for summary judgment and in failing to grant summary judgment in favor of defendant Workman.

Judgment reversed.

Blackburn and Eldridge, JJ, concur.


author: McMurray, Presiding Judge.

text:
    A98A1971.
    PATTMAN v. THE STATE.
    (513 SE2d 761)
   McMurray, Presiding Judge.

Defendant Pattman was tried before a jury, along with co-defendant Sanford, charged with a violation of the Georgia Controlled Substances Act (possession of cocaine with intent to distribute). Defendant Pattman was found guilty of the lesser included offense of possession of cocaine. The trial court, however, entered a judgment of conviction indicating that defendant was found guilty “on Count I” which was the original charge of possession of cocaine with intent to distribute. Defendant filed this appeal after the denial of his motion for new trial. Held-.

1. Defendant’s contention that the evidence is insufficient to support the jury’s verdict is without merit. Commander George Garrison of the Athens-Clarke County Drug Task Force testified that he and other officers arrested defendant and co-defendant Sanford during an undercover drug buy; that the arrests occurred while defendant and co-defendant Sanford were seated in a car; that a tissue box was found balanced on defendant’s chest as he reclined in the car’s front passenger seat and that 21.3 grams of cocaine were found in the tissue box. This evidence, proof that defendant was in possession of drug paraphernalia (referred to by an investigating officer as a “couple of crack pipes”) when he was arrested and that defendant admitted (to a police officer) that he owned the seized contraband is sufficient to authorize the jury’s finding that defendant is guilty, beyond a reasonable doubt, of possession of cocaine, a lesser included offense to the crime. charged in the indictment — possession of cocaine with intent to distribute. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560); Langham v. State, 196 Ga. App. 71, 72 (2) (395 SE2d 345).

Decided March 5, 1999.

Pete, Pete & Associates, Anthony T. Pete, for appellant.

The trial court did not err in denying defendant’s motions for directed verdict and for a new trial. But since the judgment of conviction inaccurately indicates that defendant was found guilty of possession of cocaine with intent to distribute, the case sub judice is remanded for the entry of a judgment of conviction which accurately reflects the jury’s verdict.

2. Defendant contends the trial court should have severed his trial from that of his co-defendant, arguing that co-defendant Sanford’s defense required proof that defendant admitted owning the contraband that was found at the crime scene. Defendant reasons that this evidence would not have been admitted into evidence had he been tried separately because the State did not comply with OCGA § 17-16-4 (a) (l)’s requirement that such statements be disclosed to the defense no later than ten days prior to trial.

Defendant waived his right to assert this issue on appeal by failing to object when co-defendant Sanford introduced evidence of defendant’s custodial admission (that he owned the cocaine) at trial. Walker v. State, 258 Ga. 443, 444 (3) (370 SE2d 149). Moreover, defense counsel admitted at trial that the State opened its file to him several weeks before trial and that the State’s file then included a hearing transcript (of a personal property condemnation proceeding) which disclosed testimony of defendant’s custodial admission that he owned the cocaine. Because this access satisfied OCGA § 17-16-4 (a) (1)’s criminal discovery provisions, evidence of defendant’s custodial admission against interest was admissible at trial. See Lawson v. State, 224 Ga. App. 645, 646 (3) (481 SE2d 856). The trial court therefore did not abuse its discretion in denying defendant’s motion for severance. See Brown v. State, 268 Ga. 354, 355 (2) (490 SE2d 75).

Judgment affirmed and case remanded with direction.

Blackburn and Eldridge, JJ, concur.

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


text:
    A98A1977.
    WOODALL v. CITY OF VILLA RICA.
    (513 SE2d 525)
   McMurray, Presiding Judge.

Plaintiff Carrie Jo Woodall brought this tort action against the defendant City of Villa Rica (“the City”) seeking to recover for personal injuries sustained on September 30, 1995, when she “fell [allegedly] as a result of the condition of the sidewalk/curb area . . . which had been negligently maintained and installed by the City. . . .” The complaint further alleged that, pursuant to OCGA § 36-33-5 “an ante litem notice has been given to the City ... for the claim against said City. . . .” Plaintiff relies on the following writing, dated January 8, 1996, as prepared by plaintiffs son, Dr. Steve Woodall, which we quote in its entirety:

“Dear Council Persons — City Manager,

“I am sending a copy of a letter I sent to Mayor Spake on September 13, 1995. I have yet to hear any response on my concerns in the letter so I thought it may have landed on deaf ears. I see many problems that you are dealing with, but I felt these are important issues. I believe it is necessary that rules are made and rules are abided by.

“I make note in the letter about the poor state of condition of the sidewalks downtown. My mother tripped on one of the uneven irregular areas of concrete and broke her left arm. This is a condition that will require surgery to repair her arm. The ridiculous situation is that I have heard that the city has the funds for the repairs but could not settle on a bid. There have been other people to fall on this sidewalk downtown. This should become a priority for the protection of the public and the city.

“I also believe zoning is important. I believe it should be abided by and to see a junk yard in downtown Villa Rica is a disgrace and a problem that can become very hard to get rid of. I cannot understand why you did not learn from the old Gulf station. The area at the old feed mill is many times worse and growing. Can you people not see this? I would hope that the elected and hired officials of the city can make people act like they should and you would protect adjacent property owners.

“I have also wondered in going down North Avenue if we have any kind of building requirements. I see houses that have additions that could not possibly pass any kind of building inspections. Certain standards are not being met because the rooms that are being added are not even closed in with siding. They are left with insulation as the exterior.

“I’m just a citizen but I believe it is in the best interest of the city if zoning ordinances are enforced, [s/] Steve Woodall, D. D. S.”

The trial court concluded the proffered notice was not in substantial compliance with the Code’s requirements and granted the City’s motion for summary judgment. Held:

1. “No person . . . having a claim for money damages against any municipal corporation on account of injuries to person or property shall bring any action against the municipal corporation for such injuries, without first giving notice as provided in subsection (b) of this Code section.” OCGA § 36-33-5 (a). “Within six months of the happening of the event upon which a claim against a municipal corporation is predicated, the person . . . having the claim shall present the claim in writing to the governing authority of the municipal corporation for adjustment, stating the time, place, and extent of the injury, as nearly as practicable, and the negligence which caused the injury. No action shall be entertained by the courts against the municipal corporation until the cause of action therein has first been presented to the governing authority for adjustment.” (Emphasis supplied.) OCGA § 36-33-5 (b). Thus, this statute “requires, as a condition precedent to any suit upon a claim for money damages against a municipal corporation on account of injuries to person or property, that the claim shall be presented for adjustment to the municipal authorities.” (Emphasis supplied.) Saunders v. City of Fitzgerald, 113 Ga. 619, 620 (38 SE 978).

We pretermit whether the letter plaintiff’s son wrote as a concerned citizen adequately mentions the specifics enumerated by OCGA § 36-33-5 (b), namely “the time, place, and extent of the injury, as nearly as practicable, and the negligence which caused the injury.” In our view, this letter simply fails to present any claim or demand for adjustment. “A mere notice of injury, although in writing, and announcing an intention to file suit, does not constitute a presentation of the claim or demand to the governing authorities of the municipality for adjustment so as to meet the requirements of Code (Ann.) § 69-308 [now OCGA § 36-33-5]. City of Tallapoosa v. Brock, 138 Ga. 622 (2) (75 S. E. 644).” Jones v. City Council of Augusta, 100 Ga. App. 268 (3) (110 SE2d 691). See also Tanner v. City of Gainesville, 162 Ga. App. 405, 407 (2) (290 SE2d 541) (whole court). Buried as it is amid reference to a prior letter (that antedates plaintiff’s fall); the generally poor state of the sidewalks downtown; the financial ability of the City to repair the sidewalks; multiple instances of poor zoning ordinances; the responsiveness of elected officials to property owners; the lamented absence of building requirements; and the need to enforce existing zoning ordinances, the bare mention of plaintiff’s arm needing surgery after she tripped on uneven concrete is not sufficient to put a reasonable recipient on notice that the injury specified will be pursued as a claim for money damages against the municipality, requiring investigation, analysis and perhaps prelitigation adjustment. The trial court correctly ruled this evidence of ante litem notice was inadequate to demonstrate substantial compliance with the requirements of OCGA § 36-33-5 (b).

Decided March 5, 1999.

Jack F. Witcher, Joel R. Cope, for appellant.

Freeman, Mathis & Gary, Theodore Freeman, Robyn L. Oliver, for appellee.

2. The fact that plaintiff orally informed one of the city council members of her injury, showing him the location of her mishap, cannot be considered substantial compliance with the plain provisions of this Code section. Gillingwater v. City of Valdosta, 177 Ga. App. 241 (1) (339 SE2d 287).

Judgment affirmed.

Blackburn and Eldridge, JJ, concur.


text:
    A98A2002.
    WILLIAMS v. THE STATE.
    (513 SE2d 757)
   Ruffin, Judge.

A jury found Robert Earl Williams guilty of kidnapping and hijacking a motor vehicle. Williams appeals, challenging the sufficiency of the evidence to support his convictions. Because there is sufficient evidence to support the convictions, we affirm.

“On appeal from a criminal conviction, the evidence must be viewed in the light most favorable to the verdict, and the appellant ... 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.” (Punctuation omitted.) Shabazz v. State, 229 Ga. App. 465-466 (1) (494 SE2d 257) (1997).

Viewed in this light, the evidence showed that on March 2, 1997, Williams, Chris Roof, and Rico Echols were dropped off at Atlanta Toyota to look at cars. They approached Jorge Naveda, a salesman, and asked him about used Toyota 4-Runners. While in one of the 4-Runners for a test drive, Roof, who was sitting next to Williams in the back seat, pulled a gun on Naveda and told him “to just keep driving.” Naveda left the dealership and drove until he was ordered to stop in a parking lot and to get out of the vehicle, and the three men drove away. Both at a pre-trial photographic lineup and at trial, Naveda identified Williams as one of the men in the 4-Runner during the hijacking. According to Naveda, Williams never asked to get out of the car as it was being hijacked from the dealership and never offered him any help.

Williams testified that he was unaware of any plan to hijack the 4-Runner until Roof pulled out a gun. Williams contradicted Naveda’s testimony that Roof pulled out the gun at the dealership, claiming that Roof did not take it out until they got to the parking lot, and Roof ordered Naveda out of the car. According to Williams, he thought Naveda was pulling into the parking lot so that he could test drive the vehicle.

About a month after the hijacking, on April 2,1997, Officer Gary Daniel responded to a call regarding a burglary in progress at an apartment complex. When Daniel arrived at the scene, he met Williams and Roof who told him that they were witnesses to this alleged burglary. When he asked Williams how he got to the apartment complex, Williams pointed to a vehicle which turned out to be the stolen Toyota 4-Runner. According to Daniel, Williams claimed that the vehicle belonged to his aunt, and he gave Daniel the key and allowed him to search it for weapons. An examination of the license tag revealed that it had been replaced by one which was not on file. After confirming the vehicle had been stolen and that it was in Williams’ possession, Daniel placed Williams under arrest for theft by receiving a stolen vehicle. Thereafter, Williams showed Daniel two traffic citations which indicated that he had driven the vehicle on at least two occasions after it had been stolen. Williams testified at trial that both he and Roof drove the vehicle during the month following the hijacking, and that they kept the vehicle at Roof’s house.

Williams asserts that there was insufficient evidence to establish that he was a party to the crimes of which he was convicted, and that he was merely present when Roof pulled a gun on Naveda and hijacked the vehicle. Williams claims that the evidence, as outlined above, was sufficient only to support a conviction for theft by receiving stolen property. We disagree.

“A participant to a crime may be convicted although he is not the person who directly commits the crime. OCGA § 16-2-20. A person who intentionally aids or abets in the commission of a crime or intentionally advises, encourages, hires, counsels or procures another to commit the crime may be convicted of the crime as a party to the crime. Mere presence at the scene is not sufficient to convict one of being a party to a crime, but criminal intent may be inferred from conduct before, during, and after the commission of a crime. Whether [Williams] was a party to the crime and aided and abetted [Roof] in the [kidnapping and hijacking of the motor vehicle] or intentionally advised, encouraged, or counseled [Roof] to commit the crimes was a question for the jury.” (Citations omitted; emphasis supplied.) Burks v. State, 268 Ga. 504, 505 (491 SE2d 368) (1997).

Decided March 5, 1999.

In this case, there was ample evidence from which the jury could have concluded that Williams was more than “merely present” when his cohorts committed the offenses of kidnapping and hijacking a motor vehicle. Williams made no attempt to distance himself from the hijacking while it was occurring, nor did he offer Naveda any help whatsoever after Roof pulled a gun on him. In addition, “[t]here is evidence that he [drove the stolen vehicle for a full month before he was finally arrested] and remained with his associate! ] ([sharing the use of the vehicle with Roof]) for some time after the [hijacking].” In the Interest of K. B., 223 Ga. App. 105, 108 (476 SE2d 875) (1996). During that time, he made a concerted effort to hide the vehicle’s true identity, and he also lied to Officer Daniel about the vehicle’s ownership.

It is of no consequence that Williams’ version of the events at issue was in stark contrast to the victim’s. The jury apparently chose to believe Naveda that Roof pulled a gun on him at the dealership, and not at the parking lot as Williams contends. “The weight and credibility of witnesses are questions for the triers of fact; that some evidence offered by a witness seems contradictory to his own or to some other’s, or incomplete or uncertain, does not automatically discredit the evidence given by that witness [,] for it is the function of the triers of fact to determine to what evidence it gives credence. It is not for us to determine or question how the jury resolved any apparent conflicts or uncertainties in the evidence. Rather, on appeal, we indulge every contingency in favor of the verdict.” (Citations and punctuation omitted.) Norris v. State, 220 Ga. App. 87, 88 (1) (469 SE2d 214) (1996). Accordingly, a rational trier of fact could have found Williams guilty beyond a reasonable doubt as a party to the crimes of kidnapping and hijacking a motor vehicle. See Criswell v. State, 164 Ga. App. 524 (297 SE2d 531) (1982). In so holding, we need not address Williams’ contention that the evidence established only that he was guilty of theft by receiving stolen property.

Judgment affirmed.

Pope, P. J., and Beasley, P. J., concur.

Henderson & Lipscomb, Lyle K. Porter, for appellant.

Daniel J. Porter, District Attorney, Rodney K. Miles, Assistant District Attorney, for appellee.


text:
    A98A2311.
    CALHOUN/JOHNSON COMPANY v. HOUSTON FAMILY TRUST NO. 1.
    (513 SE2d 759)
   Ruffin, Judge.

Calhoun/Johnson Company d/b/a Williams Brothers Lumber Company brought suit against the Houston Family Trust No. 1 (the “Trust”) to enforce a materialman’s lien pursuant to OCGA § 44-14-361.1. The Trust filed a motion for summary judgment, claiming that the lien was unenforceable. The trial court granted the motion, and Williams Brothers appeals. We affirm.

“To prevail at summary judgment under OCGA § 9-11-56, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law.” Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991). So viewed, the evidence establishes that on March 1, 1994, the Trust entered into a contract with Walden Homes, Inc. for Walden to build a house at Oakton Subdivision in Cobb County. Walden, in turn, entered into a contract with Williams Brothers in which Williams Brothers provided building supplies and materials for the building of the house. When Walden did not pay for the supplies by the April 26, 1994 due date, on June 30, 1994, Williams Brothers filed a material-man’s claim of lien against the Trust’s property in the amount of $35,177.31. On November 2, 1994, Williams Brothers sued Walden to enforce the lien, but was unable to obtain a judgment because Walden had declared bankruptcy. On April 21,1995, Williams Brothers filed suit against the Trust, as the property owner, to enforce the lien. The Trust moved for summary judgment, claiming that the lien was unenforceable because Williams Brothers failed to comply with the notice requirement in OCGA § 44-14-361.1 (a) (4).

According to OCGA § 44-14-361.1, liens “must be created and declared in accordance with the following provisions, and on failure of any of them the lien shall not be effective or enforceable.” (Emphasis supplied.) OCGA § 44-14-361.1 (a). OCGA § 44-14-361.1 (a) (4) provides, in pertinent part, that “if the contractor . . . shall be adjudicated a bankrupt . . . the person or persons furnishing material, services, labor, and supplies shall be relieved of the necessity of filing an action or obtaining judgment against the contractor . . . as a prerequisite to enforcing a lien against the property improved by the contractor or subcontractor. Subject to Code Section 44-14-361, the person or persons furnishing material, services, labor, and supplies may enforce the lien directly against the property so improved in an action against the owner thereof, if filed within 12 months from the time the lien becomes due. . . . Within 14 days after filing such action, the party claiming the lien shall file a notice with the clerk of the superior court of the county wherein the subject lien was filed.”

In this case, Williams Brothers admittedly did not file a notice with the clerk of Cobb County within 14 days after filing its action against the Trust as required by OCGA § 44-14-361.1 (a) (4). However, prior to proceeding against the Trust, Williams Brothers sought to recover from Walden and filed notice pursuant to OCGA § 44-14-361.1 (a) (3). In two enumerations of error, Williams Brothers contends that since it timely filed notice of claim to enforce the lien against Walden pursuant to OCGA § 44-14-361.1 (a) (3), then, as a matter of law, it is not required to file a second notice pursuant to OCGA § 44-14-361.1 (a) (4) in connection with this action against the Trust. However, this exact issue was decided adversely to Williams Brothers in Northside Wood Flooring v. Borst, 232 Ga. App. 569 (502 SE2d 508) (1998).

In Northside Wood, two subcontractors furnished building materials to a general contractor for use in building two residences. When the general contractor failed to pay the subcontractors, they filed notices of liens against the two residences and brought suits against the general contractor pursuant to OCGA § 44-14-361.1 (a) (3) . After the general contractor filed a bankruptcy petition, the subcontractors sought to enforce the liens against the homeowners. Neither subcontractor filed separate notices in connection with the suits against the homeowners, claiming that their compliance with the notice requirements of OCGA § 44-14-361.1 (a) (3) satisfied the notice requirements of OCGA § 44-14-361.1 (a) (4). This Court disagreed, noting that “compliance with one section of the lien statute does not eliminate the need to comply with another section.” Northside Wood, supra at 571 (2). Here, as in Northside Wood, “[t]he complaint [ ] alleged that the contractor was bankrupt, that no judgment was obtained against him, and that the action was against the owner of the property. These allegations relate to actions brought pursuant to subsection (a) (4) rather than (a) (3). Because the [materialman was] relying on subsection (a) (4), [it was] required to comply with that subsection.” Id. Thus, the trial court properly granted the Trust’s motion for summary judgment based upon the subcontractor’s failure to file a notice of lien in accordance with subsection (a) (4) . Id.

“A materialman’s lien effectively permits the transfer of liability from the person who actually contracted with the materialman for materials to be used in improving real estate to the owner of the improved property, even though that property owner usually will have no relationship with the materialman, contractual or otherwise. Consequently, we have long recognized that statutes involving materialman’s liens must be strictly construed in favor of the property owner and against the materialman.” Palmer v. Duncan Wholesale, 262 Ga. 28, 29-30 (1) (413 SE2d 437) (1992). Accordingly, the trial court properly construed OCGA § 44-14-361.1 (a) (4) in favor of the Trust and against Williams Brothers.

Decided March 5, 1999.

Jackel, Rainey, Marsh & Busch, James C. Busch, Chad K. Reed, for appellant.

Oliver, Duckworth, Sparger & Winkle, Kevin W. Sparger, for appellee.

Judgment affirmed.

Pope, P. J., and Beasley, P. J., concur.


text:
    A99A0913.
    KNAPKE v. THE STATE.
    (513 SE2d 765)
   Johnson, Chief Judge.

A judge found Brian L. Knapke guilty of the misdemeanor traffic offense of speeding. Knapke challenges the sufficiency of the evidence and the admission of laser speed detection results. We affirm.

“On appeal the evidence must be viewed in the light most favorable to support the verdict, and [Knapke] no longer enjoys a presumption of innocence; moreover, an appellate court determines evidence sufficiency and does not weigh the evidence or determine witness credibility. The verdict must be upheld if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” (Punctuation omitted.) Barber v. State, 235 Ga. App. 170 (509 SE2d 93) (1998).

On September 27, 1998, a Columbia County Sheriff’s deputy used a laser detection device to determine that Knapke was traveling along Interstate 20 at 85 mph in a 70-mph speed zone. Knapke argues this evidence should have been suppressed because the state failed to lay a proper foundation for its admission. However, in this case, the trial transcript reveals that the judge did not reach his decision based on the laser test results. Rather, the judge found Knapke guilty of “speeding; going 75 miles per hour” because “[Knapke] admitted it on his testimony, said he was going 75 miles per hour.” Knapke’s admission is “probably the most probative and damaging evidence that can be admitted against him. The defendant is the most knowledgeable and unimpeachable source of any incriminating information about his past conduct, and one can scarcely imagine evidence more damaging to his defense than his own admission of guilt.” (Citation and punctuation omitted.) James v. State, 233 Ga. App. 516, 519 (2) (504 SE2d 533) (1998). Therefore, pretermitting any error in admitting the laser test results, Knapke’s testimony alone was sufficient under Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979), to establish that he was speeding in violation of OCGA § 40-6-181 (b) (2). See James, supra.

Decided March 5, 1999.

Duncan & Buff, James B. Duncan III, for appellant.

Daniel J. Craig, District Attorney, Bobby L. Christine, Charles R. Sheppard, Assistant District Attorneys, for appellee.

Judgment affirmed.

Smith and Eldridge, JJ, concur.