text:
    A99A2403.
    GRIFFIN v. THE STATE.
    (531 SE2d 752)
   Miller, Judge.

Angela Michele Griffin was tried before a jury and found guilty of first degree vehicular homicide (Counts 1 and 2), serious injury by vehicle (Count 3), driving under the influence (Count 4), driving without insurance (Count 5) and failure to use child safety restraints (Count 6). The DUI count was merged with the vehicular homicide counts at sentencing, and this direct appeal followed. Griffin enumerates the sufficiency of the evidence for first degree vehicular homicide. She also contends she was denied due process because the State failed to preserve potentially exculpatory evidence and the trial court would not allow her to independently test the blood sample taken from her. We affirm.

Viewed in the light most favorable to the jury’s verdicts, the evidence adduced at trial showed that a Vidalia police officer was dispatched to the scene of a two-car accident that was a head-on collision. The vehicle driven by defendant Griffin was clearly in the oncoming traffic lane, still engaged to the other car. On the floorboard of Griffin’s vehicle, the officer found a small child, deceased. The driver of the other car, Leah Eight, was coherent, but the passenger, her father, was unconscious and eventually died. The Georgia State Patrol was notified to send a fatality crew to conduct the investigation, while the Vidalia police secured the scene. There were no witnesses to the accident.

An officer with the Georgia State Patrol observed tire marks in the southbound lane leading up to Griffin’s vehicle. From this, he deduced that defendant’s car did not suddenly veer into the southbound lane but had been in the wrong lane some time before impact. On the floorboard of defendant’s car was a six-pack of beer, with some bottles still full with the cap on while others were unbroken with the cap off The unbroken bottles with the cap on were still cool to the touch, with condensation. There was no child safety restraint device in Griffin’s car.

After Griffin was informed of her implied consent rights, she consented to a blood test, and a hospital nurse drew that blood sample. Griffin was alert and oriented as to her location, what day it was, and her name, whereas someone in shock would be unable to give all that information. Griffin’s blood sample tested positive for alcohol at 0.16 grams percent, while Eaght’s blood was negative for alcohol. Eight was unable to recall any of the details of the collision.

1. Any person who, without malice aforethought, causes the death of another person through the violation of OCGA § 40-6-391 (DUI) commits the offense of homicide by vehicle in the first degree. While it is undisputed that the fatal accident occurred when Griffin’s vehicle left the proper lane and crossed into the path of oncoming traffic, Griffin presented evidence that her car had a bad computer that caused the engine to skip and even shut down while driving, resulting in the loss of power assists to steering and braking. There had been a safety recall for that type of vehicle concerning leaking struts which, if not addressed, could cause the front end to fall down. Also, there were four recalls generated from tire failures. On appeal, Griffin contends the circumstantial evidence that her alleged intoxication caused the accident is insufficient under OCGA § 24-4-6 to exclude her reasonable hypotheses of innocence due to mechanical failure.

Questions as to the reasonableness of hypotheses are generally decided by the jury which heard the evidence, and where the jury is authorized to find the evidence, although circumstantial, was sufficient to exclude every reasonable hypothesis save the guilt of the accused, that finding will not be disturbed on appeal unless the verdiet of guilt is insupportable as a matter of law.

Griffin drove while her blood alcohol level exceeded the lawful limit. This evidence not only established the predicate violation of OCGA § 40-6-391 (a) (5), but it also raised the permissive inference that Griffin was intoxicated to the extent she was a less safe driver. After weighing the contending theories, the jury concluded the more reasonable hypothesis was that Griffin’s intoxication made her a less safe driver and this caused her to leave the proper lane of traffic and cross into the path of the oncoming vehicle. This is not an insupportable finding in light of all human experience. Consequently, the circumstantial evidence was sufficient under the standard of Jackson v. Virginia to authorize the jury’s verdicts that Griffin is guilty, beyond a reasonable doubt, of the two counts of first degree vehicular homicide alleged in the indictment.

2. Nine months before trial, defendant moved for an order “expediting] discovery” pursuant to OCGA § 17-16-4 and directing the State to “make available” certain evidence including the “vehicles which were involved in the accident” and defendant’s blood sample that was tested for alcohol content. At the hearing on defendant’s motion, the State’s attorney stated he would make available to counsel “everything I’ve got today,” but denied any knowledge of the whereabouts of the vehicles. At the court’s suggestion, the prosecutor offered to telephone the police department, whereupon proceedings in the hearing were concluded without any ruling on the motion. At trial, defendant adduced evidence showing that, five or six weeks after the police conducted their inquiries, the vehicle driven by defendant was sold by the wrecker service that towed it from the scene. No motion for new trial was filed in this case.

Although defendant contends on appeal that she was denied due process because the police failed to preserve arguably exculpatory physical evidence and she was denied an independent test of her blood sample, for aught that appears of record there is no ruling on either question by the trial court. This Court is for the correction of errors of law committed by the trial court where proper exception is taken. Griffin failed to pursue these due process objections to a decision below, and “this court will not consider issues and grounds for objection, even of constitutional magnitude, which were not raised and determined in the trial court.” Consequently, the second and third enumerations present nothing for decision on appeal.

Decided March 17, 2000.

John E. Morrison, for appellant.

Richard A. Malone, District Attorney, William S. Askew, Charles D. Howard, Assistant District Attorneys, for appellee.

Judgment affirmed.

Pope, P. J., and Smith, J., concur.

       OCGA § 40-6-393 (a).

        Robbins v. State, 269 Ga. 500, 501 (1) (499 SE2d 323) (1998). See also Smith v. State, 56 Ga. App. 384, 387-388 (192 SE 647) (1937) (where there appears from the evidence (or the lack of evidence) some hypothesis pointing to the innocence of the accused, and which tested by all human experience is a reasonable one, this Court may declare it so as a matter of law).

       OCGA § 40-6-392 (b) (3). See also Ellerbee v. State, 215 Ga. App. 102, 104 (5) (449 SE2d 874) (1994).

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

        Dobson v. State, 222 Ga. App. 331, 332 (474 SE2d 630) (1996).

        Sparks v. State, 232 Ga. App. 179, 182 (3) (a) (501 SE2d 562) (1998).

       (Citations and punctuation omitted.) Gee v. State, 210 Ga. App. 60, 61 (3) (435 SE2d 275) (1993).


source: Caselaw Access Project

author: Ruffin, Judge.

license: Public Domain

text:
    A99A0534.
    HELMLEY et al. v. LIBERTY COUNTY et al.
    (531 SE2d 756)
   Ruffin, Judge.

Appellants, a group of Liberty County property owners, filed suit challenging the Liberty County Board of Commissioners’ decision to rezone the property of their neighbor, Huey Jeffers, for commercial use. Appellants also alleged that Jeffers’ operation of a crabbing business on the property violated a restrictive covenant in his deed. Following a hearing, the superior court entered judgment against appellants, and we affirm.

1. As appellants do not challenge the factual findings of the superior court, we accept those findings as correct. The relevant facts are as follows. In 1968, Jeffers purchased a parcel of waterfront property on the Isle of Wight in Liberty County. The property was subject to a restrictive covenant prohibiting its use for commercial purposes, but Jeffers was unaware of the covenant. Within months of the purchase, Jeffers began a commercial fishing and crabbing operation on the property and built a dock, boat hoist, and other structures to that end. The business was fully operational by 1975, when Liberty County adopted a zoning ordinance. Although the property was zoned DM-1 (Dunes and Marshes District — apparently a noncommercial designation), Jeffers continued to operate the business without any formal complaint until this litigation was instigated.

Jeffers’ dock could safely accommodate only two boats, but his business used four. Thus, in December 1996, Jeffers applied to the Liberty County Joint Planning Commission and Liberty County Board of Commissioners for a variance to allow the construction of a new dock and walkway on the property. The Joint Planning Commission denied the application on the ground that the county zoning ordinance prohibits enlargement of preexisting nonconforming uses beyond 25 percent. Rather than apply to the Board of Commissioners, Jeffers withdrew his application for a variance.

In February 1997, however, Jeffers applied to the Joint Planning Commission and Board of Commissioners to rezone the property from DM-1 to B-2 (General Commercial District). The Joint Planning Commission recommended denial of the request. In May 1997, the Board of Commissioners held a public hearing to consider Jeffers’ rezoning application. The Board then rezoned Jeffers’ property to B-l (Neighborhood Commercial District), subject to a number of conditions contained in a Declaration and Acceptance of Conditions to Rezoning entered into between Jeffers and Liberty County. The trial court found that these conditions fully addressed the concerns of appellants.

Appellants contend that the Board’s rezoning decision must be set aside. Our review of that decision is limited. As the Supreme Court of Georgia has held, “[w]hen neighbors of rezoned property challenge the rezoning in court on its merits, it will be set aside only if fraud or corruption is shown or the rezoning power is being manifestly abused to the oppression of the neighbors.” Rezoning decisions also may be remanded if the local authority failed to follow its own zoning procedures.

According to appellants, the Board exceeded its own authority by rezoning Jeffers’ property. First, appellants argue that Liberty County zoning regulations prohibit the expansion of a nonconforming use of a building or structure beyond 25 percent — yet Jeffers’ new dock and walkway will amount to a 50 percent expansion. Appellants fail to provide any record citation to support this assertion. We note, however, that the Joint Planning Commission apparently denied Jeffers’ request for a variance because his proposed expansion would have run afoul of the county code’s 25 percent cap on enlargements of nonconforming uses. But the Board did not grant Jeffers a variance; it rezoned his property so that it is no longer a nonconforming use. Thus, the 25 percent limitation no longer applies.

Second, appellants contend that the Board was required to consider 14 factors in ruling on Jeffers’ rezoning application but did not do so. Appellants fail to cite to any authority governing the Board’s decision-making process. We assume that the Liberty County Code governs that process, but the record contains only a few sections of the county code attached as exhibits to the complaint, and those sections do. not address the Board’s decision-making process. “This Court cannot take judicial notice of county ordinances; the ordinances must be alleged and proved.” As appellants have failed to put the relevant authority in the record, we have nothing to review.

Third, appellants argue that the Board improperly rezoned Jeffers’ property to B-l as a “drive-in commercial operation,” even though his business is too large to fit that definition. Once again, however, appellants fail to cite to any authority to support this asserted error. We can find no copy of the Board’s decision in the record and no authority defining the uses of property zoned as B-l in Liberty County. Accordingly, this argument also presents nothing to review.

Finally, appellants argue that the trial court erred by stating in its final order that there was no credible evidence that the rezoning would “negatively impact the property values of neighboring residences, said residences consisting primarily of mobile homes and other modest dwellings.” Appellants do not challenge the finding of no adverse effect on property values but claim that the trial court improperly relied upon the fact that their residences were “modest dwellings.” Pretermitting whether the value of appellants’ property was a proper matter for the trial court’s consideration, it is clear from the order that the court’s ruling was based on its finding that the agreement between Jeffers and Liberty County addressed all of appellants’ legitimate complaints about the rezoning. The reference to property values was merely a comment by the court on the lack of evidence.

2. Appellants argue that Jeffers is bound by a covenant in the deed to his property prohibiting the use of the property for commercial purposes. The trial court found that the covenant had expired by operation of law. Pretermitting whether the covenant had expired, we find that appellants’ claim is barred by the applicable statute of limitation.

Georgia law requires that “[a] 11 actions for breach of any covenant restricting lands to certain uses shall be brought within two years after the right of action accrues.” The right of action accrues “immediately upon the violation of the covenant.” The trial court found that Jeffers started his commercial fishing and crabbing business within months of buying the property and built a dock and other structures to that end. Thus, any cause of action against Jeffers for violating the restrictive covenant in his deeds accrued more than 20 years before appellants filed suit.

Decided March 17, 2000.

Barr, Warner, Lloyd & Henifin, Karen D. Barr, A. Howard Henifin, for appellants.

Appellants contend — again without citation of authority — that Jeffers’ expansion of his business is a fresh violation of the restrictive covenant for which they may sue. But Jeffers is not starting a new commercial venture or even changing the character of his current one; he is merely building larger facilities to accommodate a longstanding business. Appellants are essentially arguing that Jeffers’ business is a continuing violation of the restrictive covenant. But the continuing violation theory does not apply in these circumstances.

The Supreme Court has held that “[t]he continuing tort theory ... is not applicable to cases which involve only property damage.” This rule does not apply in the case of a continuing nuisance, which occurs “[w]here a nuisance is not permanent in its character, but is one which can and should be abated by the person erecting or maintaining it.” Appellants, of course, are suing for breach of a restrictive covenant, not for maintenance of a nuisance. We have found no cases applying the continuing nuisance theory to a claim for breach of a restrictive covenant. Even if appellants had brought a cause of action for nuisance, however, their claim would still be time-barred. In Southfund Partners v. City of Atlanta,* we concluded that the operation of an airport was not a continuing nuisance because the damage associated with the airport’s operation was apparent from its inception. Here, likewise, appellants could have ascertained the problems with Jeffers’ business long before they filed suit in 1997. Their claim for breach of the restrictive covenant is time-barred.

Judgment affirmed.

Andrews, P. J., and Ellington, J., concur.

Jones, Osteen, Jones & Arnold, James N. Osteen, L. Kelly Davis, Leon M. Braun, Jr., for appellees.

        Cross v. Hall County, 238 Ga. 709, 711 (1) (235 SE2d 379) (1977).

       See Moore v. Maloney, 253 Ga. 504, 506-507 (2) (321 SE2d 335) (1984) (remanding rezoning decision where “the city council clearly ignored the requirements of the city zoning ordinance regarding comprehensive development plans”).

       See Court of Appeals Rule 27 (c) (3) (i) (“Each enumerated error shall be supported in the brief by specific reference to the record or transcript. In the absence of such reference, the Court will not search for or consider such enumeration.”).

        AT&T Wireless PCS v. Leafmore Forest Condo. Assn. &c., 235 Ga. App. 319, 322-323 (3) (509 SE2d 374) (1998).

       Once again, appellants cite no authority for their argument.

       See Cross, supra at 713 (2) (“Where the conditional zoning is otherwise valid, the conditions imposed for the protection or benefit of neighbors cannot be attacked successfuly by those neighbors.”).

       OCGA § 9-3-29 (a).

       (Emphasis supplied.) OCGA § 9-3-29 (c).

        Corp. of Mercer Univ. v. Nat. Gypsum Co., 258 Ga. 365, 366 (2) (368 SE2d 732) (1988).

       (Punctuation omitted.) Shaheen v. G & G Corp., 230 Ga. 646, 648 (198 SE2d 853) (1973).

       221 Ga. App. 666 (472 SE2d 499) (1996).

       Id. at 669 (3).


author: Johnson, Chief Judge.

text:
    A99A0164.
    PATTERSON v. THE STATE.
    (531 SE2d 759)
   Johnson, Chief Judge.

Lee Patterson was convicted of two counts of aggravated sodomy and one count of child molestation for acts committed upon his girlfriend’s five-year-old and ten-year-old daughters. In Patterson v. State, 237 Ga. App. 80 (514 SE2d 873) (1999), we affirmed the convictions, holding in Division 5 that the trial court was authorized to charge the jury on aggravated sodomy (versus simple sodomy) because of the victims’ ages. Id. at 83-84 (5); see Luke v. State, 222 Ga. App. 203, 206 (1) (474 SE2d 49) (1996).

In Brewer v. State, 271 Ga. 605, 607 (523 SE2d 18) (1999), the Supreme Court of Georgia overruled Patterson, Luke, and other similar cases to the extent they hold that one who commits an act of sodomy against an underage victim is, without more, guilty of aggravated sodomy. The Supreme Court held that the state must still prove force, even if the victim is underage. Brewer, supra.

The Supreme Court then granted Patterson’s petition for certiorari and remanded the case to this court for application of its decision in Brewer, supra. Accordingly, we will follow that direction.

Aggravated sodomy is committed when a person commits sodomy with force and against the will of another person. OCGA § 16-6-2 (a). Force is shown if the defendant’s words or acts were sufficient to instill in the victim a reasonable apprehension of bodily harm, violence, or other dangerous consequences to herself or others. Brewer, supra at 608; State v. Collins, 270 Ga. 42, 45 (508 SE2d 390) (1998). It can involve “acts of physical force, threats of death or physical bodily harm, or mental coercion, such as intimidation.” (Citation and punctuation omitted.) Brewer, supra at 607. While there is no presumption of force merely because the victim is underage, the amount of evidence necessary to prove force against a child is minimal. Id.; Summerour v. State, 242 Ga. App. 599 (530 SE2d 494) (2000). The evidence of force was sufficient to justify giving a charge on aggravated sodomy in this case.

In a taped interview that was properly admitted at trial, ten-year-old A. P. stated that Patterson “made” her perform oral sex on him and that he “smacked” her on two occasions for gagging and biting him while performing oral sex. She also said he made her younger sister, B. P, perform oral sex on him. A. P. said that Patterson made her perform oral sex on B. P. once and that he made B. P. perform oral sex on her once or twice. She stated that one time when B. P. refused, he pushed B. P.’s head against A. P.’s vagina so hard that B. P.’s teeth hit her and made her sore. A. P. said Patterson made her insert fake penises into B. P.’s vagina and rectum and that B. P. screamed and yelled that it hurt. Patterson also made A. P. put these devices in her own vagina. A. P. told the interviewer that she and her sister sometimes bled after these incidents.

Decided March 20,2000

McCamy, Phillips, Tuggle & Fordham, Stephen A. Williams, Todd M. Johnson, for appellant.

A. P. did not tell her mother about the incidents because she was afraid that she and her sister would have to go to foster homes or that her mother would make them gather up only a few of their belongings and leave home, like she did once before. She stated that Patterson threatened the mother frequently and that once he hit her in the eye with a spoon. A. P. told of occasions in which Patterson picked up the younger victim by the arms, bruising her, whipped both girls with belts and sticks until they bled and developed welts on their legs, and banged A. P.’s head against a stereo.

Five-year-old B. P. stated in a properly admitted taped interview that Patterson told her to perform oral sex on him and that he kept telling her to “do it,” despite her telling him that she did not want to. She also stated that Patterson told her that if she told anyone about this, she would get in trouble with her mother. B. P. added that she is afraid of Patterson because he hits her.

Evidence that Patterson used physical force upon the children, used violence against and threatened their mother in their presence, and intimidated, coerced and threatened the children was sufficient to instill in the children a reasonable apprehension of bodily harm, violence or other dangerous consequences if they did not comply with his demands. Only slight evidence supporting a theory of a jury charge is needed to authorize the giving of the charge. Davis v. State, 269 Ga. 276, 279 (3) (496 SE2d 699) (1998). The record in this case contains more than sufficient evidence of force to justify a charge on aggravated sodomy.

Our decision in Division 5 of the prior opinion finding the charge authorized based solely on the victims’ ages is vacated, and the judgment of the trial court is affirmed. The remainder of this court’s original decision was not affected by the appeal to the Supreme Court and so remains in force.

Judgment affirmed.

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

Kermit N. McManus, District Attorney, Herbert M. Poston, Jr., Assistant District Attorney, for appellee.


author: Smith, Judge.

text:
    A99A1924.
    HOLMES v. ACHOR CENTER, INC. et al.
    (531 SE2d 773)
   Smith, Judge.

Appellant Sarah Holmes brought this action alleging false arrest, false imprisonment, malicious prosecution, negligence, and intentional infliction of emotional distress against the appellees, Achor Center, Inc. and its agents Teresa Connell, Robert Barnes and Isaline Boston, as well as the City of Atlanta and police officers Major Harold R. Dunovant, Officer Dunn, Sergeant D. Ricks, and Lieutenant Crowder. Achor filed a motion to dismiss. At oral argument, at the request of Holmes’s counsel, the motion was converted into one for summary judgment, and defendants Connell and Boston joined in the motion. The trial court granted summary judgment in favor of Achor, Connell, Barnes, and Boston. Holmes appeals, and we affirm.

1. Holmes asserts that the trial court erred in granting summary judgment because material issues of fact remain in dispute. The trial court granted summary judgment in favor of the defendants, properly construing the evidence in the light most favorable to the plaintiff as nonmovant. “A de novo standard of review applies to an appeal from a grant of summary judgment, and we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant.” Matjoulis v. Integon Gen. Ins. Corp., 226 Ga. App. 459 (486 SE2d 684) (1997).

The present action arises from a long history of disputes between appellant Holmes’s husband, Kenneth Holmes, and Achor, the owner of real property previously used for church purposes by Holmes and other tenants and former owners of the property. Achor, a nonprofit organization, provides shelter and training for homeless and destitute women on the property. Achor Center v. Holmes, 219 Ga. App. 399 (465 SE2d 451) (1995).

Originally, Achor gained rights to the land through a 1989 warranty deed from the Christian Coalition of Metropolitan Atlanta (“CCMA”), see Achor Center v. Holmes, supra at 399, and a quitclaim deed from United Baptist Church (“UBC”), the original owner of the property. At the time Achor gained ownership of the property, it was subject to a previous “joint-use” agreement established by CCMA and UBC. One of the groups that benefitted from the agreement was Capitol View Community Church, or the “Noon Congregation,” a religious ministry led by Kenneth Holmes. After persistent difficulties between Kenneth Holmes and Achor, UBC decided to expel the members of the Noon Congregation. Id. at 399-400. Following this expulsion of Kenneth Holmes and his congregation, both UBC and Achor began filing criminal trespass warrants against members of the group who disobeyed the ban and returned to the property. Id. From that point onward, the parties have been embroiled in seemingly endless legal disputes.

In the initial suit, the Noon Congregation claimed a right to use the property pursuant to a clause in the joint-use agreement between CCMA and UBC. The case was resolved when the trial court granted summary judgment in favor of Achor, ruling that the congregation members did not have standing to bring a derivative suit on behalf of UBC. Following the entry of this final order and while it was on appeal, the Superior Court of Fulton County issued an injunction against Kenneth Holmes, preventing him from entering onto Achor’s property. This injunction also applied expressly to other members of the congregation, including appellant Sarah Holmes, a party to that litigation. Appellant Holmes and others were permitted to use certain portions of the facility for church services at noon on Sunday but were enjoined from entering the property at any other time or for any other purpose. The terms of the injunction specified that the order was to remain in effect until the “final resolution” of the case or until further order by the trial court.

The Supreme Court affirmed the trial court’s decision in Anderson v. Dowd, 268 Ga. 146, 148 (1) (485 SE2d 764) (1997), and the remittitur in that case was returned to the trial court on July 11, 1997. On August 5, 1997, the trial court entered the final order on the remittitur.

The appeal now before us is based upon the arrest of appellant Sarah Holmes for criminal trespass after she was found on the Achor premises at 10:45 a.m. on November 9, 1997. A magistrate eventually dismissed the charge for lack of probable cause. The trial court granted summary judgment in favor of Achor and its agents, holding that Achor reasonably believed that Holmes was guilty of criminal trespass and thus had probable cause to seek her arrest. On appeal, Holmes asserts that the grant of summary judgment in favor of the defendants was inappropriate, because factual questions still remain for the jury regarding whether Achor reasonably believed she was guilty of criminal trespass. We disagree.

A party is liable for malicious prosecution for carrying on a criminal prosecution maliciously and without probable cause, causing damage to the person prosecuted. OCGA § 51-7-40. The existence of probable cause is an absolute defense to a claim of malicious prosecution. Zohoury v. Home Depot, 239 Ga. App. 454, 455 (1) (521 SE2d 389) (1999).

Public policy disfavors malicious prosecution actions because citizens should not be discouraged from reporting what they consider to be criminal activity. K-Mart Corp. v. Coker, 261 Ga. 745, 747 (410 SE2d 425) (1991).

The courts have always distrusted malicious prosecution actions, and have retained a strong hand over them. For this reason the existence of probable cause, which involves only the conduct of a reasonable man under the circumstances, and does not differ essentially from the determination of negligence, usually is taken out of the hands of the jury, and held to be a matter for decision by the court.

(Citation and punctuation omitted.) Chen v. Tai, 232 Ga. App. 595, 598 (3) (502 SE2d 531) (1998); see also K-Mart, supra.

The overriding question in actions for malicious prosecution is not whether the plaintiff was guilty, but whether the defendant had reasonable cause to so believe — whether the circumstances were such as to create in the mind a reasonable belief that there was probable cause for the prosecution. This burden is not carried in any reasonable sense unless the plaintiff . . . shows that under the facts as they appeared to the prosecutor at the time of the prosecution, that the defendant . . . could have had no reasonable grounds for believing the plaintiff to be guilty of the charge brought.

(Citation and punctuation omitted.) Monroe v. Sigler, 256 Ga. 759-760 (1) (353 SE2d 23) (1987). We therefore consider only whether Achor and its agents reasonably believed that Holmes was guilty, not whether appellant was actually guilty of the charge against her.

In considering whether the trial court properly granted summary judgment, and construing the evidence in favor of Holmes, we must determine whether the actions of Achor’s agents on November 9, 1997, were reasonable in light of their understanding of the prior litigation and subsequent final judgment.

First, we consider the offense of criminal trespass and its legal significance.

A person commits the offense of criminal trespass when he or she knowingly and without authority . . . [e]nters upon the land or premises of another person . . . after receiving, prior to such entry, notice from the owner, rightful occupant, or, upon proper identification, an authorized representative of the owner . . . that such entry is forbidden.

OCGA § 16-7-21 (b). Holmes asserts that she was authorized to enter onto the property by the injunction in Anderson v. Dowd, supra, to which she was a party. She claims that the injunction was still in effect on November 9, 1997, and that neither she nor the defendants could have had reason to believe otherwise.

The injunction states, in part, that these remaining plaintiffs “are restricted to the following portions of the property at 1332 Stewart Avenue: the sanctuary, choir room, restrooms, and two classrooms on the lower level, and reasonable ingress and egress thereto, prior, during and after the noon service.” But Holmes entered on the property before 10:45 a.m., the time of her arrest. Since the injunction authorized Holmes’s presence on the property only at the noon service, with “reasonable ingress and egress,” Achor could reasonably have concluded that Holmes’s presence more than an hour and one-quarter before the service began was not authorized by the injunction.

Moreover, while the injunction remained in effect “until final resolution of [the] case,” the uncontroverted facts show that the final order on the remittitur from the Supreme Court was entered on August 5, 1997. This marked the final resolution of Anderson v. Dowd, and the injunction therefore expired at that time in accordance with its own terms. The rights of the Noon Congregation to enter Achor’s property ended with the life of the injunction. No evidence showed otherwise. At that moment, Achor and its agents therefore could reasonably have concluded that any future use of the property by Holmes constituted an act of criminal trespass.

Holmes contends that the final order did not constitute “final resolution” of the case because an outstanding issue still remained unresolved. The basis for this argument is that the record in Anderson v. Dowd contained another notice of appeal filed by Kenneth Holmes, although it was unaccompanied by payment of costs. See OCGA § 5-6-48 (c). Assuming without deciding that such a notice of appeal had any effect or significance after the Supreme Court of Georgia heard and decided the case, on October 10, 1997, the plaintiffs in that action, including Holmes, filed a voluntary notice of dismissal with prejudice. Therefore, even if this housekeeping matter and not the final order constituted “final resolution,” it nevertheless occurred some 30 days prior to the date of Holmes’s arrest. Achor could reasonably have concluded that “final resolution” had occurred and that the injunction was no longer in effect at the time of Holmes’s arrest.

After the voluntary dismissal at the latest, it was reasonable for Achor and its agents to believe that the injunction had ended by its terms, that Holmes and her fellow congregants had no authority to enter Achor’s property, and that Holmes therefore knowingly and intentionally entered upon the premises without consent and without authority. Even when viewed in a light most favorable to the plaintiff, the undisputed facts showing the defendants’ state of mind demonstrate that no unresolved material issues of fact remain and that Achor and its agents are entitled to summary judgment as a matter of law.

2. Holmes also alleges that the trial court erred in granting summary judgment to Barnes, although he was not named in Achor’s motion. In her brief, Holmes cites no authority but argues that it is error to grant summary judgment to a nonmoving party. This is not the law in Georgia.

Georgia law concerning the grant of summary judgment on the trial court’s own motion is well established.

Although our law concerning motions for summary judgment allows a trial court to grant, sua sponte, a summary judgment, a trial court’s authority to do so is not unlimited. The grant of summary judgment must be proper in all other respects. This means that in addition to ensuring the record supports such a judgment, the trial court must ensure that the party against whom summary judgment is rendered is given full and fair notice and opportunity to respond prior to entry of summary judgment.

(Citations and punctuation omitted.) Aycock v. Calk, 222 Ga. App. 763-764 (476 SE2d 274) (1996).

Here, as we have noted, the original motion to dismiss by Achor was converted to a motion for summary judgment at the request of Holmes’s counsel, and Connell and Boston joined the motion. The trial court then granted the motion and entered summary judgment as to Achor’s agent Barnes as well, even though Barnes was not a party to the original motion. Holmes was given additional time to file supplemental briefs and materials before the trial court’s ruling and did so.

Decided March 20, 2000.

Lawson & Thornton, George O. Lawson, Jr., Alton Hornsby III, for appellant.

Long, Weinberg, Ansley & Wheeler, Milton B. Satcher III, Anna C. Palazzolo, Freeman, Mathis & Gary, Maureen M. Middleton, for appellees.

“The trial court can grant summary judgment to the non-moving party provided that the grant is proper in all other respects.” (Citations and punctuation omitted.) Generali U. S. Branch v. Southeastern Security Ins. Co., 229 Ga. App. 277, 278 (1) (493 SE2d 731) (1997). Summary judgment in favor of a nonmovant was appropriate “where the issues were the same as those involved in the movant’s motion, hence the opposing parties had notice thereof.” Cruce v. Randall, 245 Ga. 669, 671 (266 SE2d 486) (1980).

Holmes has pointed to no legal or factual difference between her claim against Barnes and her claim against the other Achor defendants. Barnes, like the other individual defendants, is alleged by Holmes to be an agent of Achor, and Holmes makes her allegations against them collectively. Although Barnes did not file a motion, the dispositive issue of the Achor defendants’ reasonable belief that Holmes committed criminal trespass was equally applicable to Barnes. This issue was dealt with extensively in the parties’ briefs, including Holmes’s supplemental brief after the hearing. Because Holmes “had full and fair notice and opportunity to litigate this issue in the trial court, there was no error in the trial court’s sua sponte grant of summary judgment.” Zarach v. Atlanta Claims Assn., 231 Ga. App. 685, 691 (6) (500 SE2d 1) (1998).

3. Holmes having failed to enumerate as error or argue in her brief the trial court’s disposition of her remaining claims, they are deemed abandoned. Court of Appeals Rule 27 (c) (2).

Judgment affirmed.

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

       These disputes have led to extensive litigation, including four appeals to this court and the Supreme Court of Georgia. Those decisions address related issues, primarily the rights of Kenneth Holmes’s congregation to use the property in question for religious purposes. See Holmes v. Bd. of Commrs., 271 Ga. 206 (517 SE2d 788) (1999); Anderson v. Dowd, 268 Ga. 146 (485 SE2d 764) (1997); United Baptist Church v. Holmes, 232 Ga. App. 253 (500 SE2d 653) (1998); Achor Center v. Holmes, 219 Ga. App. 399 (465 SE2d 451) (1995). In the latter two cases, significantly, this court held that Achor and United Baptist Church had probable cause to arrest Kenneth Holmes for trespassing on the property in 1993 and that summary judgment was appropriate on his claims for malicious prosecution.

       The agreement allowed CCMA to use the property for ten years, with UBC retaining use rights in certain areas of the property. Id.


author: Smith, Judge. Pope, Presiding Judge,

text:
    A99A2102.
    MYRICK v. THE STATE.
    (531 SE2d 766)
   Smith, Judge.

Willie James Myrick was indicted by a Lamar County grand jury on charges of rape and aggravated child molestation of one of his stepdaughters and on a charge of child molestation of a second stepdaughter. A jury acquitted him of rape and aggravated child molestation but found him guilty of child molestation. His amended motion for new trial was denied, and he appeals. Finding no error, we affirm.

1. In several enumerations of error, Myrick complains that the trial court erred in admitting medical testimony that the second child’s physical condition was consistent not only with digital penetration but also with sexual intercourse. We disagree and affirm.

Initially, we reject Myrick’s contention that the trial court erred in not holding a hearing for the admission of similar transaction evidence under Uniform Superior Court Rule 31.3 before admitting the testimony. Here, the younger stepdaughter testified that Myrick had sexual intercourse with her. In Wall v. State, 269 Ga. 506, 507 (2) (500 SE2d 904) (1998), the Supreme Court of Georgia held that

a pre-trial hearing was no longer required on evidence of prior difficulties between the victim and the accused. Since the challenged evidence in this case concerns the relationship between the victim and [the defendant], the procedural requirements of Uniform Superior Court Rule 31.3 do not apply.

Suggs v. State, 272 Ga. 85, 86 (2) (a) (526 SE2d 347) (2000).

In addition, the record reveals that Myrick filed a motion in limine seeking to exclude various items of evidence or testimony, including this medical evidence. The trial court held a hearing on the motion, at which Myrick’s arguments were discussed in detail. After considering the question until the next day, the trial court placed on the record a weighing determination and a specific finding of relevance. Such a finding is reviewed on an abuse of discretion standard. Swift v. State, 229 Ga. App. 772, 775 (2) (e) (495 SE2d 109) (1997). Myrick has not shown such an abuse of discretion, nor has he shown a violation of due process, irrelevance or immateriality, or a shifting of the burden of proof.

Evidence of the defendant’s prior acts toward the victim, be it a prior assault, a quarrel, or a threat, is admissible when the defendant is accused of a criminal act against the victim, as the prior acts are evidence of the relationship between the victim and the defendant and may show the defendant’s motive, intent, and bent of mind in committing the act against the victim which results in the charges for which the defendant is being prosecuted. [Cit.]

(Punctuation omitted.) Mallory v. State, 271 Ga. 150, 154 (7) (517 SE2d 780) (1999). Even in the case of a similar transaction against a different victim, “the sexual abuse of young children, regardless of the sex of the victims or the nomenclature or type of acts or other conduct perpetrated upon them, is of sufficient similarity to make the evidence admissible.” (Citation and punctuation omitted.) Watts v. State, 211 Ga. App. 774, 775 (1) (440 SE2d 700) (1994).

Evidence of a conviction for incest with either a natural child or stepchild of unspecified age involves a lascivious motivation or bent of mind which generally will have some probative value in determining an accused’s motivation or bent of mind in a subsequent trial for child molestation. [CitJ

(Punctuation omitted.) Swift v. State, supra at 774 (2) (b). Moreover, in this case, the evidence of sexual intercourse was found by the testifying physician in the same medical examination of the victim that revealed evidence of molestation. The trial court correctly noted that the evidence of intercourse was part of “a continuous course of conduct that’s so interrelated with the other activity, it would be difficult to separate.” This evidence therefore also formed part of the res gestae.

It is true that evidence of the commission of a separate crime is not admissible when the sole purpose is to show that the defendant is guilty of the other crime. But when the additional crime forms part of the res gestae or tends to show malice, intent, motive, or the like, a “logical connection” exists between the two crimes and the evidence of the additional crime is admissible. Stephens v. State, 239 Ga. 446, 447 (1) (238 SE2d 29) (1977). “[T]he state is entitled to inform the jury of all the circumstances surrounding the commission of the crime or crimes charged.” (Citation and punctuation omitted.) Boney v. Tims, 254 Ga. 664, 665 (333 SE2d 592) (1985) (evidence of sodomy properly admitted in prosecution for kidnapping and armed robbery).

Myrick’s contention that this evidence inflamed the jury is also without merit. See Swift v. State, supra at 775 (2) (e). Indeed, the jury clearly was not moved by passion or prejudice because it acquitted Myrick of the other, more serious, charges against him. See Smith v. State, 271 Ga. 507, 508 (3) (521 SE2d 562) (1999). The trial court did not err in admitting this evidence.

2. In his final enumeration of error, Myrick complains that the trial court erred in allowing a videotape of a social worker’s interview with the victim to be played for the jury, asserting that the evidence demonstrated insufficient indicia of reliability to authorize admission of the videotape under the Child Hearsay Statute, OCGA § 24-3-16. Specifically, Myrick contends the videotape was unreliable because the victim did not initially state to investigators that sexual intercourse occurred.

The trial court viewed the videotape with counsel and then held a hearing on its admissibility under the Child Hearsay Statute, OCGA § 24-3-16. The trial court, on the record, explicitly employed the ten-factor analysis established by Gregg v. State, 201 Ga. App. 238, 240 (3) (b) (411 SE2d 65) (1991), and determined that sufficient indicia of reliability were shown. The trial court also specifically considered Myrick’s contention that the victim’s “escalating level of disclosures” rendered her videotaped statement unreliable. During the hearing, the trial court directly questioned an expert in the field of child sexual abuse, and the expert testified that such gradual disclosure does occur and that “usually children tell in what we call dribs and drabs, just a little bit here and a little bit there, kind of testing the water.” The victim, while she did not mention sexual intercourse in her initial statement, was consistent in her subsequent statements to an employee of the Department of Family & Children Services, a police officer, and the social worker. The trial court found that the videotape contained no indication of coaching or of leading questions on the part of the interviewer.

The Gregg factors “are to be applied neither in mechanical nor mathematical fashion, but in that manner best calculated to facilitate determination of the existence or absence of the requisite degree of trustworthiness.” Id. at 241. Considering the child’s age, the consistency of her later statements, the lack of coaching, the victim’s fear of the defendant, and the physical evidence of repeated intercourse over an extended time, we find that the record establishes sufficient indicia of reliability to support the admission of the videotapé. Medina v. State, 234 Ga. App. 13, 14 (1) (a) (505 SE2d 558) (1998). “Accordingly, any alleged inconsistencies in the victim’s outcry statements were a matter for the jury’s consideration in weighing the evidence, not a matter of admissibility. [Cit.]” Id. at 14-15. Moreover, the victim took the stand and testified at trial. Myrick “had the opportunity to and did, in fact, cross-examine the witness who made the out-of-court statement. Thus, the statement was properly admitted.” (Citation, punctuation and footnote omitted.) Id. at 15 (1) (b). The trial court did not abuse its discretion in admitting the videotape under the Child Hearsay Statute.

Judgment affirmed.

Miller, J., concurs. Pope, P. J., concurs specially.

Decided March 20, 2000.

Westmoreland, Patterson & Moseley, John L. Strauss, for appellant.

Tommy K. Floyd, District Attorney, Gail M. Travillian, Paul E. Hemmann, Assistant District Attorneys, for appellee.

Pope, Presiding Judge,

concurring specially.

I fully concur with the majority. I write in response to footnote 1 of the majority opinion. Although our Supreme Court has held that, absent a written request, a trial judge is not required to give a limiting instruction when similar transaction or prior difficulty evidence is admitted, it has also stated that “it would be better for the trial judge to do so.” State v. Belt, 269 Ga. 763, 765 (505 SE2d 1) (1998). In this regard, I would also note my agreement with the dissent in Belt, which states, “It falls to the trial court, as the insurer of the defendant’s right to a fair and impartial trial before an unbiased jury, to inform the jury of the limited use to which it might put the potentially unfairly prejudicial evidence.” Id. at 767.

       In. Wall v. State, supra, the Supreme Court of Georgia noted that prior difficulties evidence “should be accompanied by an instruction from the trial judge explaining the limited use to which the jury may put such evidence.” Id. at 509. But Myrick failed to request such a charge, and neither Wall nor other prior difficulties cases “can be read to require a trial Court to give a limiting charge, in the absence of a request, when evidence of prior difficulties is admitted.” State v. Belt, 269 Ga. 763, 764-765 (505 SE2d 1) (1998).


author: Pope, Presiding Judge.

text:
    A99A2442.
    RUSSELL v. SUPERIOR K-9 SERVICE, INC. et al.
    (531 SE2d 770)
   Pope, Presiding Judge.

“Rocky,” a 110-pound Rottweiler, attacked and bit Melanie S. Russell on the premises of Richard’s Buckhead Collision. Russell was an employee of Richard’s, and Rocky was a guard dog that the business hired from Superior K-9 Service, Inc. In 1994, following a series of break-ins, Eugene Cato, Richard’s owner, decided that he should get a guard dog to help protect his business. To that end, he contacted Glenn C. Whitten, Superior’s owner, and subsequently contracted for Rocky’s services. Under the parties’ contract, Richard’s was responsible for feeding the dog, releasing him from his pen to patrol the grounds at night and securing him again in the morning. Cato and one other employee were primarily responsible for these duties, although on two occasions a third employee released Rocky from his pen. Russell had no regular responsibilities for Rocky, but Cato anticipated that he might have to ask her to help with the dog on occasion. So following instructions received from Whitten, Russell took steps to make the dog familiar with her.

On the evening of the attack, Russell asked Cato if she could let Rocky out of his pen, and he agreed. As she had been instructed, Russell blew a whistle, called Rocky’s name and approached him with treats in hand. She then opened the gate and let the dog out. But when Russell walked back toward the shop door, the dog attacked her.

Russell sued Superior and Whitten for damages arising out of the attack, and she appeals following a jury verdict in favor of the defendants.

1. Russell first claims that the defendants laid an insufficient foundation for the admission of an audio recording made by Whitten of a telephone conversation he had with Elaine Dunton, another Richard’s employee, the evening of the attack. In ruling that the tape was admissible, the trial court stated: “Well, foundation is, [Whitten] testified he had a conversation with Ms. Dunton, and Ms. Dunton testified yesterday she did, in fact, have a conversation.”

“Unless clearly erroneous, a trial court’s findings as to factual determinations and credibility relating to admissibility will be upheld on appeal.” (Citation and punctuation omitted.) Hilliard v. J. C. Bradford & Co., 229 Ga. App. 336, 338 (1) (a) (494 SE2d 38) (1997). For a sound recording to be admissible into evidence, a proper foundation must be laid:

It must be shown that the mechanical transcription device was capable of taking testimony; that the operator of the device was competent to operate the device; that changes, additions, or deletions have not been made; and that the testimony was elicited freely and voluntarily made, without any kind of duress. Further, the authenticity and correctness of the recordings must be established; the manner of preservation of the record must be shown; and the speakers must be identified. Central of Ga. R. Co. v. Collins, 232 Ga. 790 (209 SE2d 1) (1974); Steve M. Solomon, Jr., Inc. v. Edgar, 92 Ga. App. 207, 211-212 (88 SE2d 167) (1955).

Hilliard v. J. C. Bradford & Co., 229 Ga. App. at 338 (1) (a). Our Supreme Court has recognized, however, that advances in recording technology have somewhat relaxed these foundation requirements. See Saunders v. Padovani, 258 Ga. 866, 867 (375 SE2d 853) (1989).

In this case, the existence of the audio tape was first established by Whitten’s testimony, in response to questions from Russell’s attorney. Ordinarily “a party cannot complain of a judgment, order, or ruling that his own procedure or conduct aided in causing.” Morris v. State Farm &c. Ins. Co., 203 Ga. App. 839, 841-842 (7) (418 SE2d 119) (1992). See also Winburn, Lewis & Barrow, P.C. v. Richardson, 233 Ga. App. 534, 538 (3; (504 SE2d 480) (1998). But even though Russell “opened the door” to the admission of the tape, defendants were still required to authenticate it.

The record shows that both parties to the phone conversation testified at trial. The transcript of the call was used to refresh Dun-ton’s memory, and she testified that she recalled the conversation from reading the transcript. After the tape was played to the jury, Whitten was cross-examined by Russell’s counsel. He testified, among other things, that he made the recording of the phone conversation in his home and that “the whole reason of making the tape is because the first time you hear a story . . . it’s usually the truth. . . .” Thus, the evidence indicates that Dunton and Whitten had a phone conversation, that Whitten recorded it and that the tape played to the jury was the tape of that conversation. Under these circumstances, we find no error in the admission of the audiotape.

And even if there were some error, a reversal would not be required so long as the evidence of the same facts was properly before the jury. Platt v. Nat. Gen. Ins. Co., 205 Ga. App. 705, 710 (1) (c) (423 SE2d 387) (1992). The transcript shows that before the tape was even played to the jury, Dunton testified to a number of the same matters heard on the tape.

2. Russell also claims that the trial court erred by charging the jury on the doctrine of assumption of risk. But “[w]hen there is any evidence, however slight, upon a particular issue, it is not error for the court to charge the law in relation to the issue.” (Citation and punctuation omitted.) Evans v. Dept. of Transp., 226 Ga. App. 74, 75 (2) (485 SE2d 243) (1997). “Assumption of risk assumes that the actor, without coercion of circumstances, chooses a course of action with full knowledge of its danger and while exercising a free choice as to whether to engage in the act or not.” (Citation omitted.) Jimenez v. Morgan Drive Away, 238 Ga. App. 638, 639 (1) (519 SE2d 722) (1999).

Here, the evidence showed that Russell volunteered to let Rocky out of the pen the night of the attack and that she knew Rocky was a guard dog and not a pet. This evidence was sufficient to raise a jury question on assumption of risk, and the charge was proper. Henderson v. Lowe’s Home Centers, 234 Ga. App. 573, 574 (507 SE2d 159) (1998).

3. Russell next contends that because the doctrine of assumption of risk assumes that someone acted without coercion in choosing to undertake a task, the trial court erred when it failed to charge the jury that an employee’s freedom of choice can be restricted by the circumstances of employment. See York v. Winn-Dixie Atlanta, 217 Ga. App. 839 (459 SE2d 470) (1995); Kitchens v. Winter Co. Builders, 161 Ga. App. 701 (289 SE2d 807) (1982). But it is not error to refuse to give a charge which is not supported by the evidence. Monsalve v. State, 271 Ga. 523, 526 (3) (519 SE2d 915) (1999).

Here, there is no evidence to support a finding that Russell was acting under coercion to remain employed. Russell had never been required to release Rocky from his cage before, and, in fact, she asked to do so. Even if it were anticipated that letting Rocky out might become part of Russell’s duties in the future, the evidence could not support a finding that Russell, who undertook a task outside her normal duties and at her own request, could reasonably believe her continued employment depended upon her opening the pen that night.

Decided March 20, 2000

Kitchens, Kelley & Gaynes, Stephen V. Kern, for appellant.

Fellows, Johnson & La Briola, Henry D. Fellows, Jr., Loewenthal & Jackson, Glenn A. Loewenthal, for appellees.

4. Russell further argues that the trial court erred by refusing to charge provisions of the Second Restatement of Torts relating to the duties of one who supplies chattel for use by a third party. Although the trial court did not give Russell’s requested charges, the court gave charges that covered substantially the same principles. Because Russell cannot show she was harmed by the trial court’s refusal to give her requested charges, we find no error. See Clark v. Stafford, 239 Ga. App. 69, 74 (3) (522 SE2d 6) (1999); Lane v. State, 239 Ga. App. 230, 232 (4) (520 SE2d 705) (1999).

Judgment affirmed.

Smith and Miller, JJ, concur.


text:
    A99A2458.
    DAY v. THE STATE.
    (531 SE2d 781)
   Ruffin, Judge.

Roger Day was convicted in 1990 of burglary, rape, and aggravated assault, and he was sentenced to two consecutive life sentences on the rape charges. We affirmed his convictions in 1992. He now appeals the trial court’s denial of three post-trial motions. For reasons that follow, we affirm.

1. In his first enumeration, Day asserts that the trial court erred in denying his motion for a hearing on his claim for a return of property. Day first filed a motion for return of property on February 10, 1992, seeking certain items which he alleged had been seized from his vehicle hut not used as evidence in his trial. The trial court denied Day’s motion in an order entered on April 9, 1992, and Day appealed. We transferred Day’s appeal to the Supreme Court because he was seeking an extraordinary remedy in the nature of a writ of mandamus. On February 5, 1993, the Supreme Court affirmed the trial court’s ruling without opinion.

In 1997, Day filed a second motion for return of property. The trial court denied Day’s motion, and he again appealed. We dismissed that appeal.

In 1998, Day filed a motion for a hearing on his claim for return of property. The trial court denied the motion on the ground that it was not properly before that court. Day now appeals that ruling, arguing that the trial court should have granted a hearing pursuant to OCGA § 17-5-50 (b) (3). We disagree.

Although the law of the case rule has been statutorily abolished, “any ruling by the Supreme Court or the Court of Appeals in a case shall be binding in all subsequent proceedings in that case in the lower court and in the Supreme Court or the Court of Appeals as the case may be.” There is an exception to this rule when the evidentiary posture of the case changes such that “the original evidence submitted is found to be insufficient, and the deficient evidence is later supplemented.” The trial court denied Day’s claim for return of his property in 1992, and the Supreme Court affirmed that denial in 1993. Day shows no change in the evidentiary posture of the case; in fact, he relies on a transcript of a pretrial hearing conducted in 1990 — before he filed his first motion for return of the property — as support for his right to the property. Accordingly, the Supreme Court’s 1993 ruling is binding here and prohibits Day from relitigating his claim for return of property.

2. Next, Day contends that the trial court erred by denying his motion to correct a void sentence. Day filed his first motion to correct his sentence in 1994, alleging that the trial court erred by sentencing him to consecutive life sentences on his rape convictions. Day argued that he was entitled to a determinate sentence under OCGA § 17-10-1. The trial court denied Day’s motion, and Day appealed. We affirmed, holding that the consecutive life sentences were “within the minimum and maximum prescribed by law as the punishment for the crime” and thus were authorized under OCGA § 17-10-1 (a) (1).

In 1999, Day filed a second motion to correct his sentence, again arguing that OCGA § 17-10-1 entitles him to a determinate sentence on his rape convictions. The trial court denied Day’s motion, and Day now appeals.

Decided March 20, 2000

Roger C. Day, pro se.

J. Tom Morgan, District Attorney, Maria Murder-Ashley, Assistant District Attorney, for appellee.

Once again, we have already decided this issue. Our previous ruling that the trial court did not violate OCGA § 17-10-1 by imposing consecutive life sentences for Day’s rape convictions is binding. Day contends that his argument is different this time and that we have not considered it before. Specifically, Day asserts that OCGA § 17-10-1 repealed by implication OCGA § 16-6-1 (b), which authorizes a sentence of life imprisonment for rape. The fact that Day’s second motion to correct his sentence presents his argument in a slightly different manner does not alter the binding effect of our previous opinion. In the absence of a change in the evidence or the law, Day is not entitled to multiple bites at the apple. Moreover, we have specifically held that OCGA § 17-10-1 authorizes the imposition of any sentence within the minimum and maximum prescribed by law, including a life sentence.

3. On November 17, 1998, Day filed a “Motion to Vacate Judgment, Verdict and Orders Obtained by Perjury.” In the motion, Day alleged that two witnesses for the State who testified at his trial that Day’s palmprint was found at the scene of the crime perjured themselves. The trial court denied this motion.

Under OCGA § 17-1-4, we may set aside a conviction that was obtained “in consequence of corrupt and willful perjury.” We may do so, however, only if the witness in question was convicted of perjury and the defendant’s conviction could not have been obtained without that witness’s testimony. Day presents no evidence that either witness for the State was convicted of perjury. He also fails to show that the testimony at issue was essential for his conviction. We note, in this regard, that in our affirmance of Day’s conviction, we characterized the evidence of his guilt as “overwhelming.” Accordingly, we find no error in the trial court’s denial of Day’s motion.

Judgment affirmed.

Andrews, P. J, and Ellington, J., concur.

        Day v. State, 203 Ga. App. 186 (416 SE2d 548) (1992).

       OCGA § 9-11-60 (h).

       (Punctuation omitted.) In re Spruell, 237 Ga. App. 259, 260 (515 SE2d 190) (1999).

       The motion at issue here is for a hearing on Day’s claim to the property rather than for the actual return of the property. This is a distinction without a difference, however, because the only reason to hold a hearing would he to determine whether Day is entitled to the property — and that issue has already been decided by the Supreme Court.

       (Punctuation omitted.) Day v. State, 216 Ga. App. 29 (1) (453 SE2d 73) (1995).

       See Williams v. State, 214 Ga. App. 421, 422-423 (4) (447 SE2d 714) (1994).

       OCGA § 17-1-4; see also Ashley v. State, 263 Ga. 820, 823 (3) (c) (439 SE2d 914) (1994).

        Day v. State, 203 Ga. App. at 186.


text:
    A99A2509.
    HESTON v. LILLY.
    (531 SE2d 784)
   Pope, Presiding Judge.

Tracey Heston sued Thomas Malcolm Lilly for injuries she allegedly sustained when Lilly’s car rear-ended her car. The matter proceeded to a jury trial, and the jury entered a verdict in Lilly’s favor. On April 27,1999, Heston filed a motion for new trial and on May 21, 1999, she filed a written request for oral argument. This request came three days after Lilly filed his response to Heston’s motion. The trial court, without hearing argument, issued an order on June 2, 1999, denying the motion for new trial.

1. Heston argues that the trial court erred in denying her motion without first hearing oral argument as required under Uniform Superior Court Rule 6.3. That rule provides: “Unless otherwise ordered by the court, all motions in civil actions, including those for summary judgment, shall be decided by the court without oral hearing, except motions for new trial and motions for judgment notwithstanding the verdict.” (Emphasis supplied.) This language excepts motions for new trial from the general rule that a court can decide a motion without oral argument and provides by negative implication that a trial court cannot rule on a motion for new trial without an oral hearing. Because Heston was entitled to oral argument on her motion for new trial, it was error for the trial court to issue its order without first hearing argument. And this Court has consistently refused to find that the failure to hold oral argument is harmless error. To hold otherwise “would not encourage adherence to the Uniform Rules and would render the mandated hearing a hollow right.” (Citation and punctuation omitted.) Bennett v. McDonald, 238 Ga. App. 414, 415-416 (518 SE2d 912) (1999). See also Howard v. McFarland, 233 Ga. App. 286 (503 SE2d 900) (1998).

Lilly argues, however, that Heston was not entitled to oral argument because she did not make a timely request. But Rule 6.3 does not require a written request for oral argument on a motion for new trial. While the rule does require a written request for oral argument on motions for summary judgment, that language has no application to motions for new trial. And even if the language could somehow be construed to apply to a motion for new trial, the rule provides that the written request must be filed concurrently with the motion or within five days after the time for the response. Heston filed her motion three days after Lilly filed his response, and thus the request would be considered timely.

Accordingly, we remand .the case back to the trial court for oral argument on Heston’s motion for new trial.

2. And because we are remanding the case for further proceedings, we do not reach Heston’s remaining enumerations addressing the merits of the trial court’s ruling:

Decided March 20, 2000.

Van C. Wilks, for appellant.

Allen & Associates, Stuart Theodore, for appellee.

Where the trial court has not had the opportunity to consider the arguments of counsel [on the motion for new trial], appellate review of the record is premature. Indeed, oral argument may illuminate issues obscured by the record or result in admissions by counsel that affect the [trial court’s] analysis.

Howard v. McFarland, 233 Ga. App. at 287.

Case remanded with direction.

Smith and Miller, JJ, concur.


author: McMURRAY, Presiding Judge.

text:
    A00A0702.
    DUNN v. ROYAL MACCABEES LIFE INSURANCE COMPANY et al.
    (531 SE2d 761)
   McMURRAY, Presiding Judge.

On September 24, 1996, appellee-plaintiff Royal Maccabees Life Insurance Company (“Royal Maccabees”) filed the underlying complaint for interpleader in the Superior Court of Fulton County, tendering the proceeds of a life insurance policy on the life of Dr. Russell Erhardt (the “Erhardt policy” and “Dr. Erhardt,” respectively). Royal Maccabees alleged that the ownership of the Erhardt policy was in issue and named appellant Lynn B. Dunn (“Mrs. Dunn”) and appellee Ruth A. Erhardt (“Mrs. Erhardt”) as the defendants below. The ownership issue arose out of competing claims for the Erhardt policy’s death benefit which were filed by Mrs. Erhardt, on behalf of the irrevocable trust of Dr. Erhardt, and filed by Mrs. Dunn, as executrix of the estate of Dennis J. Dunn (“Mr. Dunn”). After discovery Mrs. Erhardt and Mrs. Dunn filed cross-motions for summary judgment. The superior court granted Mrs. Erhardt’s motion and denied that of Mrs. Dunn. Mrs. Dunn now appeals.

The undisputed evidence shows that Mr. Dunn and Dr. Erhardt were business partners in Open MRI, L.P (the “partnership”), each owning a 50 percent share thereof. The partners determined that in the event one of the partners should die, the surviving partner should have the means to buy out any partnership interest devolving to the widow of the deceased partner. To this end, Royal Maccabees insurance policies in the amount of $500,000 each were purchased on the lives of each partner. The details necessary to make Dr. Erhardt the owner of the Dunn insurance policy were completed before Mr. Dunn’s death in an automobile accident in January 1995. The proceeds payable under the Dunn policy were paid to Dr. Erhardt, providing him funds necessary to purchase Mr. Dunn’s interest in the partnership which devolved to Mrs. Dunn through Mr. Dunn’s estate. The Erhardt policy lapsed after Mr. Dunn’s death. Royal Maccabees subsequently reinstated the policy in Dr. Erhardt as the owner. Dr. Erhardt, in turn, designated Mrs. Erhardt, as Trustee of the Irrevocable Trust of Russell Erhardt, as the owner and beneficiary of the policy. The Erhardts thereafter paid all the premiums due on the policy. Dr. Erhardt died on February 16, 1996. The competing claims for the proceeds of the Erhardt policy and Royal Maccabees’ interpleader followed. Held:

1. Mrs. Dunn contends that the superior court erred in granting summary judgment to Mrs. Erhardt and denying summary judgment to Mrs. Dunn for: (a) failing to find Mr. Dunn owned the Erhardt policy at the time the Erhardt policy lapsed, and (b) allowing the ownership of the Erhardt policy to be changed to Mr. Erhardt upon reinstatement. Concluding that ambiguity exists as to the ownership of the Erhardt policy, we disagree.

The cardinal rule of contract construction is to ascertain the intention of the parties. OCGA § 13-2-3. Contract construction is a three-step process. Initially, the construction of the contract is a question of law for the court. First, if no ambiguity appears, the trial court enforces the contract according to its terms irrespective of all technical or arbitrary rules of construction. That is, where the terms of a written contract are clear and unambiguous, the court will look to the contract alone to find the intention of the parties. Secondly, if ambiguity does appear, the existence or nonexistence of an ambiguity is itself a question of law for the court. Finally, a jury question arises only when there appears to be an ambiguity in the contract which cannot be negated by the court’s application of the statutory rules of construction. This is true even if the contract is difficult to construe. Further, a contract should be construed by examining the agreement in its entirety, and not merely by examining isolated clauses and provisions thereof.

Where, as here, an insurance contract is ambiguous, it is to be construed by the court and no jury question is presented unless an ambiguity remains after an application of the rules of construction.

Ambiguity as to policy ownership arises in the case sub judice for two reasons: (1) except with respect to his action in making Mrs. Erhardt the owner of the Erhardt policy after its reinstatement, Dr. Erhardt took no action personally to change ownership in the policy, and (2) Paragraph 10 of the application for Dr. Erhardt’s policy, permitting the designation of policy ownership in persons or entities other than the proposed insured, was not completed sufficiently to identify a policy owner other than Dr. Erhardt. In this regard, Paragraph 10 of the application had been completed only to the extent that one of its spaces called for the insertion of a “Soc. Sec. or Tax No.” Although the words “Tax No.” under the number provided were underlined, nothing on the face of the application identified such number as the partnership’s tax number or the tax number of any other entity. Moreover, Mr. Dunn signed the application for the Erhardt policy as “Dennis J. Dunn, President” at the “Applicant/ Owner” line at the bottom of the application, circling the word “owner,” neither indicating that he was signing the application for the partnership or providing its tax number. Left blank were other spaces which, had they been completed, would have identified any new policy owner by name, address, relationship, and designation of the new owner’s designee.

It is undisputed that the intention of the parties was fulfilled upon Royal Maccabees’ payment of the proceeds of Mr. Dunn’s policy to Dr. Erhardt. This provided the funds necessary to buy out Mr. Dunn’s partnership interest following his death. Manifestly, it was not the intent of the parties that the surviving spouse of the decedent partner be entitled to the death benefit arising out of two insurance policies. This, by definition, would have resulted in a windfall, exceeding the intent of the parties by a factor of two. Mrs. Dunn contends that we should construe the evidence of record as showing that Mr. Dunn was the owner of the Erhardt policy. In doing so, she, among other things, correctly points to a Royal Maccabees’ correspondence to Mr. Dunn, indicating that he was the designated owner of the Erhardt policy. However, we discount such evidence and any other evidence indicating ownership in Mr. Dunn appearing on the face of the application for Dr. Erhardt’s policy in favor of finding that Dr. Erhardt owned the policy on his life. Ownership in Dr. Erhardt is consistent with the intent of the parties because it forecloses the payment of funds beyond those necessary to buy out the decedent partner’s partnership interest. Further, it is consistent with Royal Maccabees’ action in reinstating Dr. Erhardt’s policy in that Dr. Erhardt’s policy reserved the right of reinstatement to the policy owner alone. “The effect of reinstatement ... is not to make a new policy, but to wipe out the default as if it had never occurred, renewing the policy in all its provisions and vigor in full from the date of lapse or default.” That Dr. Erhardt transferred ownership of his policy to an irrevocable trust for the benefit of Mrs. Erhardt was his prerogative under the policy. There is no dispute that the policy on Dr. Erhardt’s life was in force at the time of his death, all premiums due thereunder having been paid by the Erhardts.

Decided March 20, 2000.

Stephen H. DeBaun, for appellant.

Doffermyre, Shields, Canfield, Knowles & Devine, Samuel W. Wethern, Susan S. Shaw, Troutman Sanders, Sherri M. Graves, Nancy K. Deming, for appellees.

Upon the appeal of the grant of summary judgment, this Court reviews the evidence de novo. Summary judgment is proper where the movant shows no genuine issue of material fact exists and entitlement to summary judgment as a matter of law. A defendant carries this burden by demonstrating the absence of evidence as to one essential element of plaintiff’s case. Should the defendant do so, the plaintiff cannot rest on [its] pleadings, but rather must point to specific evidence giving rise to a triable issue.

So viewing the evidence, we conclude that the superior court properly granted summary judgment to Mrs. Erhardt and denied summary judgment to Mrs. Dunn upon the finding that Dr. Erhardt was the owner of the Erhardt policy.

2. In light of our disposition of Division 1, we do not address Mrs. Dunn’s remaining claim of error.

Judgment affirmed.

Johnson, C. J., and Phipps, J., concur.

       (Citation and punctuation omitted.) Rohm & Haas Co. v. Gainesville Paint &c. Co., 225 Ga. App. 441, 443-444 (2) (b) (483 SE2d 888). See also Brannen/Goddard Co. v. PNC Realty Holding Corp., 238 Ga. App. 387, 389 (519 SE2d 35).

        Borders v. Global Ins. Co., 208 Ga. App. 480, 482-483 (2) (430 SE2d 854).

       Paragraph 10 of the application for Dr. Erhardt’s policy pertinently provided: “Proposed Insured(s) shall be owner, unless otherwise shown.”

       (Citations omitted.) Mayes v. Washington Nat. Ins. Co., 77 Ga. App. 638, 641 (49 SE2d 123).

       (Citations and punctuation omitted.) Jackson v. K-Mart Corp., 242 Ga. App. 274, 275 (529 SE2d 404).


text:
    A00A0725.
    DAVIS v. SHERWIN-WILLIAMS COMPANY et al.
    (531 SE2d 764)
   Johnson, Chief Judge.

Briggs & Stratton Corporation hired Alan Davis to paint a motor assembly plant in the city of Statesboro. Sherwin-Williams Company supplied Davis with the painting products that he used on the Briggs & Stratton job. In August 1995, before the painting was finished, Briggs & Stratton fired Davis from the job. Davis sued Briggs & Stratton, and the parties eventually settled that lawsuit.

In October 1995, Briggs & Stratton asked Sherwin-Williams to inspect Davis’ painting job for the purpose of advising a new painting contractor as to what was needed to finish the project. Wayne Anderson, a Sherwin-Williams store assistant manager who had handled the Briggs & Stratton project and was familiar with the painting specifications of that project, conducted the inspection. Afterwards, Anderson wrote a report of his opinions and findings, and he sent the report to Briggs & Stratton.

In the report, Anderson listed nine findings: that a concrete stain had been applied too thinly, that a concrete water sealer had not been applied, that an industrial enamel was not sufficiently thick, that a primer was not used, that certain pipes and bar joists were only partially painted, that dirt had been painted over, that “fallout from the drywall” had been painted over, that decals on air conditioning units had been painted over and that catwalks had been painted only from the bottom and not the top. He further gave his opinion that the workmanship on the job was very poor, and he made suggestions as to how the problem areas could be corrected.

Based on that written report, Davis sued Sherwin-Williams and Anderson for libel. Sherwin-Williams and Anderson moved for summary judgment, and the trial court granted the motion. Davis appeals, challenging the grant of summary judgment on his libel claim. The challenge is without merit.

A libel is a false and malicious defamation of another that is expressed in writing, that tends to injure the person’s reputation and that exposes the person to public hatred, contempt or ridicule. The expression of opinion on matters about which reasonable people might differ is not libelous.

The essence of Anderson’s report is an expression of opinion about the quality of the painting job. Reasonable people might differ about the quality of Davis’ work on the job. But Anderson’s mere expression of his opinions about deficiencies in the work is not libelous.

To the extent that some of Anderson’s nine findings about the paint job can be characterized as assertions of fact rather than opinion, none of those assertions supports Davis’ libel action. The truth of a statement is always a defense to a claim of libel. In his deposition, Davis admitted that all but two of Anderson’s nine findings were true or could not be disputed. Thus, all of the statements that Davis admitted were true cannot be libelous.

In his deposition, Davis expressly disputed only Anderson’s findings that a concrete stain had been applied too thinly and that an industrial enamel was not sufficiently thick. Even if we assume for the sake of argument that Anderson’s statements about the concrete stain and industrial enamel were wrong, we fail to see how such statements, not to mention any of the other statements in the report, exposed Davis to public hatred, contempt or ridicule. Absent such exposure, there is no libel.

Moreover, statements are privileged if they are made with a good faith intent by the speaker to protect his interest in a matter in which he is concerned. A defendant relying on privilege as a defense to a libel action must show good faith, an interest to be upheld, a statement properly limited in scope, a proper occasion and publication to proper persons.

Sherwin-Williams and Anderson have shown all of these elements. There is no question that they had a business interest in Davis’ painting job because they supplied the painting products used for the job; Sherwin-Williams and Anderson had an interest in seeing that their products were used properly and that any problems with the use of those products were corrected. Furthermore, Anderson only made his inspection and report in good faith at the request of Briggs & Stratton, he properly limited his report to the requested evaluation of the paint job and he properly limited the publication of the report to the interested parties at Briggs & Stratton and Sherwin-Williams. Consequently, Anderson’s good faith report concerning the status of the paint job was privileged and does not provide a basis for Davis’ claim of libel.

In order to overcome the privilege, Davis was required to prove that the report was made with actual malice. There is, however, no evidence in the record that Sherwin-Williams or Anderson acted with actual malice in making the report. On the contrary, the evidence shows only that they acted in good faith in issuing the status report at the request of Briggs & Stratton. The trial court accordingly did not err in granting summary judgment to Sherwin-Williams and Anderson.

Decided March 20, 2000.

Calvin A. Rouse, for appellant.

Hawkins & Parnell, Jack N. Sibley, Robert S. Thompson, for appellees.

Judgment affirmed.

McMurray, P. J., and Phipps, J., concur.

       OCGA § 51-5-1 (a).

        Webster v. Wilkins, 217 Ga. App. 194, 195 (1) (456 SE2d 699) (1995).

       OCGA § 51-5-6.

       See Kitfield v. Henderson, Black & Greene, 231 Ga. App. 130, 132 (2) (498 SE2d 537) (1998); Willis v. United Family Life Ins., 226 Ga. App. 661, 664 (1) (a) (487 SE2d 376) (1997).

       OCGA § 51-5-7 (3).

        Dominy v. Shumpert, 235 Ga. App. 500, 504 (2) (510 SE2d 81) (1998).

       See generally Choice Hotels Intl. v. Ocmulgee Fields, 222 Ga. App. 185, 188-189 (2) (474 SE2d 56) (1996).

       See generally Willis, supra at 664-665 (1); Speedway Grading Corp. v. Gardner, 206 Ga. App. 439, 442-443 (2) (425 SE2d 676) (1992).

       See Kitfield, supra; Speedway Grading, supra at 442 (2).


author: Ellington, Judge.

text:
    A99A2241.
    In the Interest of A. S. O. et al., children.
    (530 SE2d 261)
   Ellington, Judge.

Appellant, the mother of A. S. O. and N. L. R., appeals from the juvenile court’s order terminating her parental rights. The parental rights of the children’s fathers were also terminated. Appellant challenges the sufficiency of the evidence and the consolidation of the nonreunification and termination proceedings. Finding no error, we affirm.

1. The standard of review applicable to appellant’s challenge to the sufficiency of the evidence is “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 rights to custody have been lost.” (Punctuation omitted.) In the Interest of A. C., 230 Ga. App. 395, 396 (1) (496 SE2d 752) (1998). “[W]e defer to the trial court’s factfinding and affirm unless the appellate standard is not met.” (Punctuation omitted.) In the Interest of S. N. N., 230 Ga. App. 109 (495 SE2d 602) (1998).

OCGA § 15-11-81 (a) sets forth a two-step process to be used in termination of parental rights cases. First, the trial court determines “whether there is present clear and convincing evidence of parental misconduct or inability.” Id. Four factors must be present to establish parental misconduct or inability: (1) the child must be deprived; (2) the lack of proper parental care or control by the parent in question must cause the deprivation; (3) the cause of the deprivation-must be likely to continue; and (4) continued deprivation must be likely to cause the child serious physical, mental, emotional, or moral harm. OCGA § 15-11-81 (b) (4) (A) (i)-(iv). If the trial court finds that these four factors exist, then in the second step the court determines whether termination of parental rights is in the best interest of the child. In the Interest of D. A. P., 234 Ga. App. 257, 259 (2) (506 SE2d 438) (1998).

As to the first factor, we agree with the juvenile court’s determination that the children were deprived. See In the Interest of A. W., 231 Ga. App. 770, 773 (501 SE2d 22) (1998); In the Interest of R. D. S. P., 230 Ga. App. 205, 206 (495 SE2d 867) (1998). The children, girls then aged ten and five, were first taken into protective custody on a report that N. L. R. had been physically abused. Investigators learned that the children had been living with Linda and Preston Mason, who were not their parents and who did not have legal custody or guardianship, for over a year. Neither the Masons nor the girls knew the whereabouts of their biological mother, appellant, or their biological fathers. The children’s apparent abandonment justified the initial finding of deprivation. In the Interest of J. M. B., 231 Ga. App. 875, 878 (1) (a) (501 SE2d 259) (1998). Since no appeal was taken from the deprivation order, appellant is bound by the initial deprivation finding. In the Interest of L. H., 236 Ga. App. 132, 134 (1) (511 SE2d 253) (1999). Therefore, the first factor is satisfied.

As to the second factor, we agree with the juvenile court’s determination that the children’s deprivation was caused by appellant’s lack of proper parental care or control. Appellant argues that severe financial hardship forced her to leave her children in the care of a trusted friend to give her the opportunity to get back on her feet financially. In determining whether the children’s deprivation was caused by appellant’s lack of proper parental care or control, however, the juvenile court was authorized by statute to consider appellant’s actions following the original finding of deprivation. When the child is not in the custody of the parent whose rights are at issue, OCGA § 15-11-81 directs the trial court to consider whether the parent without justifiable cause failed significantly for a period of one year or longer (1) to communicate or make a bona fide attempt to communicate with the child in a meaningful, supportive, parental manner; (2) to provide for the care and support of the child; and (3) to comply with a court-ordered plan to reunite the child with the parent. OCGA § 15-11-81 (b) (4) (C).

In this case, after a three-day hearing, the juvenile court found:

Beginning in July of 1996 and continuing until the children’s placement in protective custody in October of 1997, . . . the mother failed to visit or telephone the children on a regular basis, and often months at a time would pass without the mother making any inquiry as to the children’s welfare. In August of 1996, the child [N. L. R.] disclosed allegations of prior sexual abuse by [the father of A. S. O.] When the mother was informed of the sexual abuse allegations she left town rather than comforting the child during such a traumatic time in the child’s life. The mother also did not provide support for her children during this time period. In fact, the mother did not even provide the Masons with the children’s clothes and personal effects when she left the children at the Mason home. . . . The mother says that on the occasions she called the children on the telephone at the Mason home, she would hear the Mason Family in the background verbally abusing her children.

Viewed in the light most favorable to the juvenile court’s determination, a rational trier of fact could have found by clear and convincing evidence that during the year prior to the parental rights termination hearing appellant failed to develop and maintain a meaningful parental bond with her children. In the Interest of J. M. B., 231 Ga. App. at 878 (1) (b).

We also uphold the trial court’s finding that the children’s deprivation would likely continue if appellant retained parental rights. At the time of the termination hearing, appellant was still married to A. S. O.’s father (who was accused of molesting N. L. R.) but was living in a sexual relationship with another man. Thus, the evidence supported the juvenile court’s determination that the home into which appellant wished to bring her children would not provide an environment favoring positive moral development. Dixon v. Dixon, 183 Ga. App. 756 (360 SE2d 8) (1987), overruled on other grounds, Wilson v. Baldwin, 239 Ga. App. 327, 328 (519 SE2d 251) (1999).

Finally, the record supports the juvenile court’s conclusion that continued deprivation is likely to harm the children. The psychologist who evaluated the children concluded that as a result of the lack of a stable home environment the children suffered depression, anxiety, and failure to perform in line with their academic abilities. The psychologist recommended individual therapy and intervention for possible learning disabilities and emphasized their need for immediate placement in a permanent, safe, and secure home. This evidence supports a finding that the children would suffer serious harm if returned to appellant. In the Interest of B. L. S., 239 Ga. App. 771 (521 SE2d 906) (1999).

As for the second prong of the termination analysis, we are persuaded that the termination of appellant’s parental rights is in the best interests of the children, considering the children’s physical, mental, emotional, and moral condition and their “need for a secure and stable home.” OCGA § 15-11-81 (a). “The same evidence showing parental misconduct or inability may, and here does, establish this requirement.” (Punctuation omitted.) In the Interest of C. L. R., 232 Ga. App. 134, 138 (2) (501 SE2d 296) (1998). Further, there is evidence that the children have remained in a stable foster home since removal from the Masons’ custody; that the children are well-adjusted and happy in the foster home; that they have bonded with the foster family; and that the foster family aspires to adopt the children. In particular, N. L. R. expressed a desire to be adopted by the foster family and no desire to visit with appellant in the future. This evidence authorizes the juvenile court’s finding, via clear and convincing evidence, that termination of parental rights is in the best interests of the children. In the Interest of K. D. S., 237 Ga. App. 865, 867 (2) (517 SE2d 102) (1999).

Decided March 1, 2000

Reconsideration denied March 21, 2000

Lawrence M. Korn, for appellant.

2. Appellant contends that the trial court improperly consolidated the nonreunification proceedings with the termination proceedings. OCGA § 15-11-41 (c) requires the Department of Family & Children Services to submit within 30 days of the order removing a child from the home a reunification plan or a report showing that a plan for reunification is not appropriate. Within 30 days of an OCGA § 15-11-41 (c) nonreunification report, OCGA § 15-11-41 (d) requires the trial court to hold a permanency hearing to review the nonreunification report and to determine whether reunification efforts would be detrimental to the child. In this case, the permanency hearing was not held within 30 days of the filing of the nonreunification report. But appellant, through counsel and after notice that the Department intended to expedite termination proceedings, agreed to consolidate the nonreunification hearing with the termination of parental rights action. “Although the procedural requirements of the juvenile court code have been held to be mandatory, such requirements can be waived.” In the Interest of C. S., 236 Ga. App. 312, 315 (2) (511 SE2d 895) (1999). A parent opposing termination proceedings could have strategic reasons for waiving the requirement that the permanency hearing be held within 30 days of the Department’s nonreunification report. Having consented to the consolidation of the two hearings, appellant cannot challenge this procedure for the first time on appeal. In the Interest of C. A. C., 239 Ga. App. 725 (522 SE2d 236) (1999).

Judgment affirmed.

Andrews, R J., and Ruffin, J., concur.

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