text:
    A02A0158.
    ALBEE et al. v. KRASNOFF et al.
    (566 SE2d 455)
   Miller, Judge.

Roger Albee and nearly 100 other plaintiffs appeal from the trial court’s dismissal of their claim for breach of fiduciary duty and the grant of summary judgment against them on their claims for breach of a personal guaranty, breach of contract, fraud, fraudulent conveyance of property, piercing the corporate veil, punitive damages, and attorney fees. On appeal they contend that the trial court erred by (1) opening the default of this case after defendant Robert Krasnoff failed to file a timely answer, (2) dismissing their claim for breach of fiduciary duty, and (3) granting summary judgment to all defendants on all of plaintiffs’ remaining claims. We discern no error and affirm.

Viewed in the light most favorable to appellants, the evidence reveals that appellants were clients of an investment firm. Through their personal financial advisor at the firm, appellants were asked to invest money in Casko Investment Company, a real estate investment company that loaned money for first mortgages on single-family homes. In exchange for their investment, appellants would receive monthly principal and interest payments. To convince appellants to invest in the real estate company, Krasnoff, the President and 50 percent owner of Casko, gave appellants an oral guaranty that he would be obligated on each and every loan and further informed appellants that he would personally manage their money and be involved with the management of Casko.

The entity that serviced the loans to Casko from plaintiffs was SGE Mortgage Finance Company. Krasnoff was a 40 percent owner of SGE, and the remaining 60 percent was owned by the company’s President, John Steven Cason, Sr. Cason was also the other 50 percent owner of Casko.

For nearly eight years, appellants received monthly principal and interest payments without incident. In February 1998, however, several checks to appellants bounced. These checks were later paid in full to appellants, but appellants became concerned that a “Ponzi scheme” may have been at work, which would involve multiple mortgages being sold on a single property. Cason was later asked to resign, and Krasnoff filed a receivership petition against Casko and SGE.

A committee reviewed the financial records of SGE, discovering that Cason had been embezzling money from the company. Unbeknownst to Krasnoff, Cason had been taking assets of the company for personal use, such as for private jet charters for gambling junkets. Cason hid his embezzling activities by maintaining a separate set of books that disguised what he was doing and by instructing employees to hide the true financial status of the company. Cason’s conduct had caused SGE to become insolvent. Appellants lost over $5 million of their original investments, and even Krasnoff himself lost over $2 million due to the failure of Casko and SGE.

Appellants sued Krasnoff for breach of his alleged oral guaranty and for attorney fees. Appellants later amended their complaint to add Krasnoff’s wife and the Krasnoff Family Irrevocable Trust, alleging, among other things, breach of fiduciary duty, fraud, and fraudulent conveyance (for Krasnoff conveying his house to his wife and to the Krasnoff Family Irrevocable Trust in 1993). Krasnoff did not file an answer to the initial complaint, and after 15 days following the original answer deadline (the time within which he could have opened the default as a matter of right (OCGA § 9-11-55 (a)), appellants moved for a default judgment. Defendant filed the necessary materials to have the default opened one day after plaintiffs’ motion, arguing that the failure to answer resulted only from multiple similar lawsuits being filed against him in the same court, leading him to the mistaken impression that the suit had been answered along with all of the others when, in reality, it had not been. The trial court decided to open the default and to allow the case to proceed on the merits.

The trial court later dismissed plaintiffs’ claim for breach of fiduciary duty and granted summary judgment to defendants on all of plaintiffs’ remaining claims except fraud, attorney fees, and punitive damages, reserving ruling on those issues and giving plaintiffs an opportunity to come forward with more detailed evidence of Kras-noff’s alleged fraudulent promises. When appellants failed to submit evidence that convinced the trial court that any genuine issue of material fact remained with respect to the fraud claim, the court granted summary judgment to defendants on all of appellants’ remaining claims.

1. Appellants contend that the trial court erred by opening the default in this case. More specifically, they argue that Krasnoff’s failure to answer resulted from mere inattention to court procedures, which was insufficient to warrant the opening of the default. We disagree and hold that the trial court did not abuse its discretion by opening the default in this case.

A trial court has broad discretion to open a default, and this court will not interfere with a trial court’s decision to open a default absent a manifest abuse of discretion. Johnson v. American Nat. Red Cross, 253 Ga. App. 587, 589-590 (1) (569 SE2d 242) (2002). Under OCGA § 9-11-55 (b), prior to final judgment being entered, a court may open a default where a party has satisfied four conditions and has shown any one of three grounds for opening the default. More specifically, the party must (1) make a showing under oath, (2) offer to plead instanter, (3) announce that he is ready to proceed to trial, and (4) set up a meritorious defense. The three grounds for showing that the default should be opened are (1) providential cause, (2) excusable neglect, or (3) a proper case (the broadest of all three categories). Id. at 589 (1).

The law favors the opening of defaults to allow cases to proceed on their merits:

The rule permitting opening of default is remedial in nature and should be liberally applied, for default judgment is a drastic sanction that should be invoked only in extreme situations. Whenever possible cases should be decided on their merits for default judgment is not favored in law. Generally, a default should be set aside where the defendant acts with reasonable promptness and alleges a meritorious defense. In determining whether a situation is extreme, among the factors which may be considered, but which will not standing alone authorize the opening of default pursuant to OCGA § 9-11-55 (b), are: whether and how the opposing party will be prejudiced by opening the default; whether the opposing party elected not to raise the default issue until after the time under OCGA § 9-11-55 (a) had expired for the defaulting party to open default as a matter of right; and whether the defaulting party acted promptly to open the default upon learning no answer had been either filed or timely filed.

(Citations and punctuation omitted.) Ford v. St. Francis Hosp., 227 Ga. App. 823, 826 (1) (490 SE2d 415) (1997).

In the instant case, Krasnoff filed all materials necessary for compliance with OCGA § 9-11-55 (b) within one day of learning about the default (including his assertion of meritorious defenses that were ultimately successful). Interestingly, appellants failed to raise any issue with respect to the default until defendant’s time to open the default as a matter of right had already expired. This was the case even though defendant had already served extensive discovery on plaintiffs, to which defendant granted plaintiffs an extension to answer, before defendant’s answer was even due. Furthermore, defendant’s failure to answer in a timely manner was explained by the fact that several similar lawsuits had been filed against him, leading to understandable confusion as to whether an answer had already been filed in this case. Under the circumstances, we hold that the trial court did not abuse its discretion by opening the default and allowing the case to proceed on the merits. Cf. Colonial Penn Ins. Co. v. Market Planners Ins. Agency, 209 Ga. App. 562 (434 SE2d 124) (1993) (proper case found to open default where two substantively identical complaints filed and defendant mistakenly filed answer to only one).

2. Appellants argue that the trial court erred by dismissing their claim for breach of fiduciary duty. They contend that their allegation that Krasnoff made personal promises to appellants to convince them to invest in Casko created a confidential relationship between Kras-noff and appellants. Since the allegations cannot support an action for breach of fiduciary duty, we disagree with appellants and hold that the trial court properly dismissed this claim.

Under OCGA § 23-2-58, a confidential relationship arises “where one party is so situated as to exercise a controlling influence over the will, conduct, and interest of another or where, from a similar relationship of mutual confidence, the law requires the utmost good faith, such as the relationship between partners, principal and agent, etc.” “The mere fact that one reposes trust and confidence in another does not create a confidential relationship. In the majority of business dealings, opposite parties have trust and confidence in each other’s integrity, but there is no confidential relationship by this alone.” (Citation and punctuation omitted.) Lewis v. Alderman, 117 Ga. App. 855 (1) (162 SE2d 440) (1968).

Here, appellants had their own financial advisors in this business transaction, which belies the inference of any confidential relationship between appellants and Krasnoff. Appellants’ allegations do not indicate the existence of a confidential relationship. See Moore v. Bank of Fitzgerald, 225 Ga. App. 122, 126 (2) (a) (483 SE2d 135) (1997) (no confidential relationship between lender and borrower). We decline to adopt a holding that would essentially convert every arm’s length business transaction into a confidential relationship. The trial court properly dismissed this claim.

3. Appellants further argue that the trial court erred by granting summary judgment to defendants on appellants’ claim for breach of an oral guaranty. Appellants contend that Krasnoff’s oral guaranty to appellants constituted an “original undertaking,” which exempted it from the Statute of Frauds. We disagree.

On appeal from the grant of summary judgment, we conduct a de novo review of the evidence, viewed in the light most favorable to the nonmovant, to determine whether a genuine issue of material fact remains and whether the moving party is entitled to judgment as a matter of law. Rubin v. Cello Corp., 235 Ga. App. 250-251 (510 SE2d 541) (1998).

Pursuant to OCGA § 13-5-30 (2), a guaranty must be in writing. An original undertaking, which is not subject to the Statute of Frauds (see B. J. Howard Corp. v. Skinner, Wilson & Strickland, 172 Ga. App. 180-181 (1) (322 SE2d 306) (1984)), is not the same thing as a guaranty. The difference between a guaranty, which must be in writing, and an original undertaking, which need not be, depends on whether the guarantor is to be primarily liable for the debt. If the guarantor promises to answer for the debt of another (who is primarily liable), that would be a classic guaranty. See Bennett Oil Co. v. Harrell, 143 Ga. App. 268 (238 SE2d 267) (1977). In the case of an original undertaking, on the other hand, the new promisor must substitute himself as the primary party to perform. See B. J. Howard Corp., supra, 172 Ga. App. at 181 (1). In other words, in the case of an original undertaking, the creditor must be looking primarily to the guarantor for complete payment, rather than looking primarily to the third party (and only to the guarantor upon default).

The evidence here reveals that, at most, Krasnoffs promise to appellants’ agent would have created a classic guaranty. Appellants were looking first to Casko/SGE for payment, and in the event of a default then would look to Krasnoff for payment. Since this guaranty was not in writing, appellants are precluded from enforcing it. See Bennett Oil Co., supra, 143 Ga. App. at 269. The trial court therefore did not err by granting summary judgment to defendants on this claim.

4. We also find that the trial court did not err by granting summary judgment to defendants on appellants’ claims for breach of contract and fraud. Appellants’ arguments that Krasnoff created a contract with them by orally representing that he would manage their funds, and that his alleged promises also constituted fraud, are without merit.

We hold that the alleged oral promises made here are too vague to create an enforceable contract. Krasnoff’s promises to manage plaintiffs’ future investments and be involved in Casko’s operations are too indefinite to provide concrete parameters for an enforceable agreement, as there is no evidence in the record as to what the parties agreed that Krasnoff’s management and involvement were supposed to entail. See, e.g., Autrey v. UAP/GA AG CHEM, 230 Ga. App. 767, 769 (1) (a) (497 SE2d 402) (1998); see also Peachtree Med. Bldg, v. Keel, 107 Ga. App. 438, 441-442 (2)-(3) (130 SE2d 530) (1963). Appellants have not shown the existence of an enforceable contract, and the trial court correctly granted summary judgment to defendants on the breach of contract claim.

Similarly, the alleged promises also were not definite enough to support an action for fraud. “Although fraud can be predicated on a misrepresentation as to a future event where the promisor knows that the future event will not take place, fraud cannot be predicated on a promise which is unenforceable at the time it is made.” (Citation and punctuation omitted.) Autrey, supra, 230 Ga. App. at 769 (1) (a). All of the alleged promises here are too vague and indefinite to be enforced and, therefore, cannot form the basis for a fraud action. See id.

5. Appellants’ claim for piercing the corporate veil is also without merit, and we agree with the trial court that summary judgment should have been awarded to defendants on this claim.

“The concept of piercing the corporate veil is applied in Georgia to remedy injustices which arise where a party has overextended his privilege in the use of a corporate entity in order to defeat justice, perpetrate fraud, or evade contractual or tort responsibility.” (Citation and punctuation omitted.) Commonwealth Financial Corp. v. Sherrill, 197 Ga. App. 403, 404 (1) (398 SE2d 438) (1990). Absent some intentional conduct on the part of the individual shareholder to misuse or abuse the corporate form, we will not pierce the corporate veil to hold that individual shareholder liable for the obligations of the corporation. See, e.g., Hickman v. Hyzer, 261 Ga. 38, 39-40 (1) (401 SE2d 738) (1991).

Here, the evidence reveals that appellants’ advisors knew that Casko was a shell corporation that had no assets and that SGE serviced the loan agreements. The only evidence of abuse of the corporate form came from Cason embezzling funds from the company, and not from any intentional action by Krasnoff. Appellants were in no way misled or cheated due to any alleged abuse of the corporate form of Casko by Krasnoff The trial court properly granted summary judgment to defendants on this claim.

6. Appellants further argue that the trial court erred by granting summary judgment to defendants on appellants’ claim for fraudulent conveyance. We disagree.

OCGA § 18-2-22 allows for creditors and others to challenge fraudulent conveyances of property by a debtor. Pursuant to subsection (2) of the statute, it must be shown that the conveyance was made with the intent to delay or defraud creditors, and that the recipient of the conveyance also knew of that intent, in order to have it set aside as fraudulent. See also Stokes v. McRae, 247 Ga. 658, 659 (2) (278 SE2d 393) (1981).

Decided June 12, 2002

Pursley, Howell, Lowery & Meeks, Kevin B. Buice, Christian F. Torgrimson, for appellants.

Chilivis, Cochran, Larkins & Bever, Anthony L. Cochran, John D. Dalbey, for appellees.

The undisputed testimony of Krasnoff and his wife revealed that the house was conveyed for estate planning purposes, and we find no circumstances from which a jury could infer that defendants acted with an intent to defraud creditors based on this transaction. Summary judgment was properly awarded to defendants here.

7. Since the trial court correctly dismissed appellants’ claim for breach of fiduciary duty and properly granted summary judgment on all of appellants’ remaining underlying claims, the grant of summary judgment on appellants’ punitive damages and attorney fees claims was also proper. See Groutas v. McCoy, 219 Ga. App. 252, 254 (3) (464 SE2d 657) (1995); see also Matthews v. Tele-Systems, Inc., 240 Ga. App. 871, 874 (4) (525 SE2d 413) (1999).

Judgment affirmed.

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


source: Caselaw Access Project

author: Smith, Presiding Judge.

license: Public Domain

text:
    A02A0279.
    QUINN v. THE STATE.
    (566 SE2d 450)
   Smith, Presiding Judge.

After pleading guilty to two counts of aggravated assault and firing a pistol at another, Mark Quinn was sentenced under the First Offender Act, OCGA § 42-8-60. Subsequently, Quinn was convicted of the offense of possession of a firearm by a first offender probationer. Quinn’s motion for new trial as amended proved unsuccessful. In this appeal, Quinn challenges the sufficiency of the evidence, three evi-dentiary rulings by the trial court, and the court’s purported failure to give limiting instructions sua sponte. Quinn also contends that his trial counsel provided ineffective assistance. Because we find no merit in the claims of error asserted, we affirm.

Construed to uphold the jury’s verdict, the evidence shows that from 1994 until early 1995, Quinn rented a room and a storage closet at the home of his physician, Shirley Butler, M.D. As a result of a shooting incident that occurred at Dr. Butler’s house in February 1995, Quinn was convicted of two counts of aggravated assault for firing a pistol at two individuals. On April 15, 1996, the trial court conferred first offender treatment upon Quinn, sentencing him to five years confinement with the proviso that upon service of two years, he could serve the balance on probation.

After serving two years in prison, Quinn again sought help from Dr. Butler. On the day of his release, April 15,1998, Quinn contacted Dr. Butler and told her that he had no place to go and asked for a ride from the bus station. When Dr. Butler met Quinn at the bus station, she told him that he could no longer live at her house but could retrieve his clothes and personal effects from storage there. Quinn became angry. He threatened to shoot Dr. Butler in the head and to sodomize her daughter. Alarmed by his threats, Dr. Butler agreed to let him stay for the night. Later that same night, while returning from the kitchen, Dr. Butler saw Quinn removing some guns from a safe inside the storage closet. Dr. Butler denied ever having seen these handguns before. In the morning, when Dr. Butler reiterated to Quinn that he could not live at her home, Quinn became so angry that Dr. Butler became frightened. She testified that she “called the probation department.” After work, Dr. Butler called police after seeing Quinn outside her home. By the time the police arrived, Quinn had left.

In the early morning hours of April 17, after her daughter reported hearing a noise, Dr. Butler summoned police. When she told the responding officers about Quinn and that there was “something in the closet that they needed to see,” she was told that a warrant would be needed. Although the lock on the closet could be operated by key or by combination, as Dr. Butler testified, she did not have a key or know the combination. She decided to pry the lock open herself and using a small axe did so. Officer W. A. Parton testified that when the closet door opened, he saw two shotguns, a large stand-up safe, ammunition, and gun paraphernalia.

Officer Craig Kailimai, a gun unit member, was asked to come to the scene. Kailimai noted that a Steyr-AUG assault rifle and a chrome pump shotgun were next to a large safe that had a small safe on top of it. After learning about Quinn’s threats and conducting a computer check of Quinn, Kailimai left to obtain a search warrant for Quinn’s personal property at the residence. Later, after procuring the warrant, while awaiting the arrival of a locksmith, Kailimai noticed a third safe in the bedroom where Quinn had slept. Inside this safe, which was not locked, were five fully loaded handguns, holsters, and magazines. Secreted inside the large safe were assault rifles, shotguns, ammunition, holsters, magazines, and numerous handguns. All of the guns were fully loaded and ready to fire. In all, investigators discovered 63 handguns, 17 long guns including assault rifles, rifles, and shotguns, thousands of rounds of ammunition, handgun holsters, rifle slings, and various magazines or clips.

1. Quinn contends that the State failed to prove the requisite elements of the crime, in that the State failed to prove that he was a first offender probationer on the date charged in the indictment.

OCGA § 16-11-131 (b) punishes as a felony offense the act of receiving, possessing, or transporting any firearm by a person who is a first offender probationer. The crime therefore is committed when a person who is currently on probation as a first offender possesses a firearm. Williams v. State, 238 Ga. App. 310, 311 (520 SE2d 466) (1999). Here, the evidence shows without dispute that Quinn had been sentenced under the First Offender Act and received a five-year felony sentence to commence on April 15, 1996, and he was released from prison on April 15, 1998. Almost immediately after his release, Quinn was observed handling guns inside a closet equipped with what one officer described as “a very high tech lock.” Only Quinn had access to the locked closet. An additional five handguns were discovered in a small safe in his bedroom. While the possession of a single firearm by a first offender probationer suffices, in this case, Quinn knowingly exercised direct physical control over numerous guns. See Simpson v. State, 213 Ga. App. 143 144 (1) (444 SE2d 115) (1994). This evidence was sufficient to sustain his conviction.

Quinn’s reliance upon Williams, supra, is misplaced. In Williams, unlike here, there was a fatal variance between the indicted offense and the evidence adduced at trial. In that case, Williams had been indicted as a first offender probationer, but the evidence unequivocally established that Williams was not a first offender probationer because his probation had been revoked as the result of a subsequent felony conviction. Id. at 310. Here, in contrast, Quinn did not have an intervening felony conviction.

Quinn asserts that the State failed to prove that in April 1998, he wás a “first offender probationer” and that “the probation had commenced and had not ended.” That argument is disingenuous. Quinn’s eligibility for discharge as a first offender could not have arisen until April 15, 2001, and then, only upon satisfaction of the conditions of probation. See Davis v. State, 239 Ga. App. 318, 319 (2) (521 SE2d 368) (1999), rev’d on other grounds, 273 Ga. 14 (537 SE2d 663) (2000). These events did not occur.

2. Quinn asserts that the trial court erred in refusing to enforce his proposed stipulation that he was, in fact, a first offender probationer. On the contrary, the State was not obligated to accept the offer and, within the rules of evidence, had the right to present fully its own case. See Null v. State, 261 Ga. 180, 181 (4) (402 SE2d 721) (1991).

3. In two overlapping enumerations, Quinn claims that the trial court erred in admitting over objection references to his prior crimes without first weighing the probative value against the detrimental effect. He argues that the trial court should have considered whether to redact the references to the aggravated assaults from the certified copy of the indictment and sentencing sheets. Relying upon Old Chief v. United States, 519 U. S. 172 (117 SC 644, 136 LE2d 574) (1997), Quinn claims that any reference to the actual prior offenses should have been stricken from the exhibit.

Old Chief involved a federal prosecution for a violation of 18 USC § 922 (g) (1), which prohibits the possession of a firearm by anyone with a prior felony conviction. To avoid disclosure of the nature of his prior assault conviction, Old Chief offered to stipulate to the prior conviction element of the crime. The federal prosecutor refused to join in the stipulation. Id. at 177.

The United States Supreme Court granted review and framed the issue as the scope of a trial judge’s discretion under Rule 403 of the Federal Rules of Evidence. Old Chief, supra at 180. Rule 403 authorizes the exclusion of relevant evidence when its “ ‘probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.’ ” Id. at 180. The Supreme Court held that under Rule 403, in a prosecution in which proof of a prior conviction is an element, a district court abuses its discretion by rejecting a defendant’s offer to admit to the prior judgment and by permitting over objection the introduction of the full judgment record. Id. at 190-191. The Supreme Court explicitly limited its holding “to cases involving proof of felon status.” Id. at 183, n. 7.

But the United States Supreme Court’s interpretation of Rule 403 of the federal rules is not binding on this court as to the admissibility of similar crimes or extrinsic acts evidence. Sisson v. State, 232 Ga. App. 61, 65 (3) (b) (499 SE2d 422) (1998); but see Butler v. State, 270 Ga. 441, 449 (8) (511 SE2d 180) (1999) (holding of Old Chief may be applicable to situation where a defendant offers to stipulate to his legal status). Nevertheless, under our rules of evidence, the record does not show that the trial court conducted any determination as to whether the probative value of the evidence at issue outweighed its prejudicial effect. See Hicks v. State, 232 Ga. 393, 397 (207 SE2d 30) (1974). Instead, the trial court apparently assumed that evidence of the prior offenses HAD to be admitted. This was an error of law. “The general rule is that evidence of an independent crime is never admissible unless the prejudice it creates is outweighed by its relevancy to the issues on trial.” Sisson, supra at 66 (3) (b).

Although the State had to prove Quinn’s status as a first offender probationer, proof of the precise crimes underlying his prior conviction was not an element of the crime. See OCGA § 16-11-131 (b). In other words, while Quinn’s status as a first offender probationer constituted an essential element of the indicted offense, admission of the nature and type of criminal offenses for which Quinn received first offender treatment should have been weighed against the prejudicial effects. See id. Mistakenly believing that the evidence had to be allowed, the trial court made no determination that the extrinsic act evidence was substantially relevant for an appropriate purpose so as to outweigh its prejudicial impact. See Brown v. State, 197 Ga. App. 155-156 (398 SE2d 34) (1990). Under the circumstances of this case, however, because of the overwhelming evidence against Quinn, we find that the admission of the unredacted exhibit did not constitute reversible error. Robinson v. State, 263 Ga. 424, 425 (2) (b) (435 SE2d 207) (1993).

4. Quinn complains that the trial court erred by not exercising its own initiative to give limiting instructions to the jury both when State’s Exhibit 1 (indictment and sentencing sheets) was introduced and when the general charge was given.

Quinn’s failure to request a limiting instruction when the evidence was introduced forecloses appellate review of that issue. See Gore v. State, 251 Ga. App. 461, 465 (3) (a) (554 SE2d 598) (2001). Having examined the general instruction, we find that the charge as a whole substantially presented the issues in a way unlikely to confuse or mislead the jury. See Callaway v. State, 230 Ga. App. 369, 370 (2) (496 SE2d 349) (1998).

5. Citing four grounds, Quinn claims that he received ineffective assistance of counsel before and during his trial. To prevail on an ineffectiveness claim, an appellant must show that his trial counsel’s performance was deficient and that this deficiency prejudiced his defense. See Elrod v. State, 222 Ga. App. 704, 707 (3) (475 SE2d 710) (1996). Quinn has failed to satisfy those criteria.

Quinn contends that his trial counsel should have pursued a motion to suppress evidence of the guns. He argues that Dr. Butler acted in concert with police to violate his constitutional rights or, in the alternative, that Dr. Butler acted as a government agent in breaking into the locked storage closet. Asserting that he had “an expectation of privacy in the locked safe in a locked closet,” he claims that his trial counsel erred by not moving to suppress the contents of the closet. Quinn points out that the Fourth Amendment cannot be evaded by the use of a private individual to accomplish what a law enforcement officer cannot. See Gasaway v. State, 137 Ga. App. 653, 656 (2) (224 SE2d 772) (1976).

Because the failure to file a motion to suppress does not constitute per se ineffective assistance of counsel, an appellant must make a “strong showing” that the evidence would have been suppressed had the motion been filed. Roberts v. State, 263 Ga. 807, 809 (2) (e) (439 SE2d 911) (1994). Here, Quinn’s argument is fatally flawed for two reasons. First, Quinn denied having any ownership interest in the guns. As attested to by his trial counsel, Quinn told him that he had given the guns to Dr. Butler and had relinquished all rights to them. Quinn’s counsel testified that he did not file a motion to suppress because “I took my client at his word.” Dr. Butler testified at trial that Quinn had not given the guns to her, and no evidence showed otherwise. Second, even assuming arguendo that Quinn could have prevailed on a motion to suppress the evidence obtained from the storage closet, it would not have changed the result. Officer Kailimai testified that he found the five guns in the unlocked bedroom safe after he obtained the search warrant.

The record does not indicate that the search warrant was challenged.

Nor does the record reflect deficient performance by Quinn’s trial counsel during voir dire. Quinn complains that his counsel failed to object to biased remarks and inquiry by the prosecutor about guns and gun ownership. The transcript belies this claim. During voir dire, both defense counsel and the prosecutor extensively probed the topics of gun ownership and distaste for guns. Both also inquired about the constitutional right to bear arms and whether that right should be circumscribed for those with felony convictions. Compare Bell v. State, 263 Ga. 776, 777 (439 SE2d 480) (1994) (prosecutor’s injection into her closing argument of extraneous and prejudicially inflammatory material that had no basis in evidence necessitated reversal). No error has been shown.

Quinn complains that his counsel failed to object during closing argument to comments about his prior first offender convictions and his recent release from prison. But because Quinn was being tried for violation of OCGA § 16-11-131 (b), the State was required to show that Quinn, was in fact, a felony first offender probationer. See Williams, supra at 310. In proving its case, the State was entitled to establish that almost immediately after his release from jail, Quinn had possession of firearms. Quinn’s trial counsel testified that after the trial court ruled that information about the aggravated assaults was admissible, he made a conscious decision not to object during the State’s closing to avoid highlighting that information. Such a strategic decision did not constitute ineffectiveness. See Hayes v. State, 236 Ga. App. 617, 620 (4) (b) (512 SE2d 294) (1999).

Decided June 12, 2002.

John W. Kraus, for appellant.

Paul L. Howard, Jr., District Attorney, Christopher M. Quinn, Assistant District Attorney, for appellee.

Finally, Quinn contends that his counsel failed to object to the State’s improper bolstering of its witness. He claims that the prosecutor impermissibly bolstered Dr. Butler’s credibility by arguing that she was a “respected” doctor who sacrificed a lucrative practice to serve as a general practitioner “on the west side of town where it’s sorely needed.” These remarks do not constitute improper bolstering. Compare Bolden v. State, 272 Ga. 1 (525 SE2d 690) (2000) (statement by solicitor-general that he thought police officer was very credible constituted reversible error). Here, the prosecutor made no statement about his personal belief as to the veracity of this witness. Since the trial court’s finding that Quinn was not denied effective assistance of counsel was not clearly erroneous, it must be affirmed. Kelly v. State, 267 Ga. 252, 253 (2) (477 SE2d 110) (1996).

Judgment affirmed.

Eldridge and Ellington, JJ, concur.

       OCGA § 16-11-131 was amended effective July 1, 2000, to pertain to felony first offenders and to require enhanced punishment for probationers who have committed forcible felonies. See Ga. L. 2000, p. 1630, § 5.

       Quinn was also indicted for terroristic threats and possession of a firearm by a convicted felon. The trial court entered an order dismissing the latter count because the State had no evidence that Quinn’s probation had ever been revoked. After the defense sought a bifurcated trial on the terroristic threat count and the possession of a firearm by a first offender probationer, the State agreed to dead docket the terroristic threats charge.


author: SMITH, Presiding Judge.

text:
    A02A0312.
    SEABOLT v. BEAULIEU OF AMERICA et al.
    (566 SE2d 444)
   SMITH, Presiding Judge.

We granted this application for discretionary review to consider the narrow issue of attorney fees assessed in this workers’ compensation case. Although the employee had sought attorney fees, the administrative law judge (“ALJ”) entered an award that did not include attorney fees. After review, the appellate division of the State Board of Workers’ Compensation affirmed the ALJ’s award with the exception of assessing attorney fees against the employer/insurer. The superior court reversed on the ground that the appellate division should have remanded the fee issue to the ALJ. Because we find that the superior court relied upon inapplicable precedent and overlooked the power of the appellate division to assess independently attorney fees under OCGA § 34-9-108 (b) (1), we reverse.

Claimant Robin Seabolt Dockrey sought weekly benefits, medical expenses, and attorney fees from her employer, Beaulieu of America, and its insurer, Pruden Risk Management (collectively “Beaulieu”). Her employer controverted the claim in its entirety.

At the administrative hearing, Dockrey offered evidence that she had primarily worked as a tufting machine operator at Beaulieu’s carpet manufacturing facility. Over time, Dockrey gradually began to experience problems with her neck, arm, and wrist. Dockrey testified that although she complained to her supervisors and asked for medical treatment, none was provided to her. According to her medical records, she was diagnosed with cervical radiculopathy, disc herniation, and overuse type syndrome. These records also show that Dockrey was diagnosed with carpal tunnel syndrome on May 28, 1997, more than a year before her discharge.

During the hearing, her counsel informed the ALJ that attorney fees were being sought for the employer’s failure to provide medical care and for an unreasonable defense. Counsel stated that he had expended 35 hours on her behalf and that his employment contract provided for an hourly rate of $200. In the alternative, he requested assessed fees under Rule 108.

The ALJ denied Dockrey’s claim for weekly benefits finding that she had failed to satisfy her burden of proof within the meaning of Maloney v. Gordon County Farms, 265 Ga. 825, 827-828 (462 SE2d 606) (1995), and Diamond Rug &c. Mills v. Moses, 221 Ga. App. 807, 808 (472 SE2d 565) (1996). The ALJ determined that Dockrey was discharged by Beaulieu for reasons totally unrelated to her “on-the-job injury or her injury-resultant condition.” The ALJ, however, directed Beaulieu to pay the medical expenses listed in the award and to provide ongoing medical treatment to Dockrey. The ALJ’s award made no mention of attorney fees.

After review, the state board adopted the ALJ’s award as to weekly benefits and medical treatment. The board, however, added its own findings as to attorney fees, deciding:

In addition, the Appellate Division finds that the administrative law judge did not address the employee’s request for assessed attorney fees based upon the employer/self-insurer’s failure to accept the claim and failure to provide medical treatment. The Appellate Division finds that OCGA § 34-9-108 (b) provides for the assessment of attorney fees when proceedings are defended in whole or in part without reasonable grounds. The Appellate Division accepts the finding of facts in paragraph 13 and finds that the employer/self-insurer denied treatment to the employee from the beginning without reasonable grounds.

Having reviewed the entire record, the appellate division assessed attorney fees against Beaulieu “for an unreasonable defense, in part, of the claim.” The board entered an explicit finding that “$3500.00 for 17.5 hours is a reasonable value for the services of the employee’s attorney and therefore assesses attorney fees in that amount against the employer/self-insurer.”

Dissatisfied, Beaulieu appealed to the Superior Court of Murray County. After review of the award entered by the appellate division, the superior court affirmed on all issues with the exception of attorney fees. The superior court deduced that the absence of any discussion by the ALJ about attorney fees “could be an oversight or could be an implicit denial of them.” The court noted, “Since the imposition of attorney’s fees is discretionary under OCGA § 34-9-108 (b) and the intent of the ALJ is unclear, the Appellate Division should remand the issue of the award for clarification by the ALJ.” On that basis, the superior court directed the board to remand the attorney fees issue to the ALJ for resolution.

In her sole enumeration of error, Dockrey contends that the superior court erred by reversing the decision of the appellate division and directing the appellate division to remand the issue of attorney fees to the ALJ. We agree and reverse.

The Workers’ Compensation Act empowers the ALJ and the board to assess attorney fees in these circumstances: “Upon a determination that proceedings have been brought, prosecuted, or defended in whole or in part without reasonable grounds, the administrative law judge or the board may assess the adverse attorney’s fee against the offending party.” (Emphasis supplied.) OCGA § 34-9-108 (b) (1). Here, that is precisely what occurred. The board expressly found that Beaulieu had defended against part of Dockrey’s claim without having reasonable grounds for doing so. Accordingly, the board assessed attorney fees under OCGA § 34-9-108 (b) (1) against Beaulieu, the offending party. The board also entered a factual finding that $3,500 was the reasonable value of the legal services.

Whether an employer has unreasonably defended against a claim in whole or in part is a factual determination. Richardson v. Air Products &c., 217 Ga. App. 663, 665 (458 SE2d 694) (1995). When supported by any evidence, findings of fact by the state board are conclusive and binding on reviewing courts, and judges lack authority to set aside an award based on disagreement with the board’s conclusions. Gleaton v. Hazelwood Farms, 214 Ga. App. 825, 826 (449 SE2d 170) (1994). When, as here, the appellate division substitutes its findings for those of the ALJ, the superior court reviewing the appellate division’s findings must affirm when there is evidence to support the appellate division’s substitute findings. Syntec Indus, v. Godfrey, 269 Ga. 170, 172 (1) (496 SE2d 905) (1998). Because the appellate division acted within its discretionary authority to assess attorney fees and the record contains evidence to support the assessment of fees as well as the amount assessed, the superior court erred in reversing the appellate division. See Bankhead Enterprises v. Beavers, 267 Ga. 506, 508 (480 SE2d 840) (1997). That judgment therefore must be reversed but only as to the issue of attorney fees. See Richardson, supra at 666.

Decided June 12, 2002.

Hilley & Frieder, Ronald L. Hilley, for appellant.

Hall, Booth, Smith & Slover, Steven D. Prelutsky, for appellees.

Judgment reversed.

Eldridge and Ellington, JJ, concur.

       In paragraph 13, the ALJ found that Dockrey had complained on two occasions to her supervisor and on the latter occasion had made a request for medical treatment from her employer.

       Under OCGA § 34-9-108 (a), attorney fees for services to claimants that exceed $100 require board approval.


text:
    A02A0823.
    THE STATE v. CALHOUN.
    (566 SE2d 447)
   Smith, Presiding Judge.

Jacquie Somer Calhoun was arrested and charged by accusation with DUI, OCGA § 40-6-391 (a) (1) and (k) (1); underage possession of alcohol, OCGA § 3-3-23 (a) (2); and improper turn, OCGA § 40-6-120 (a) (2). The State appeals from an order granting Calhoun’s “Motion to Dismiss and/or in the Alternative to Suppress Evidence of Defendant’s Purported Implied Consent Refusal.” We agree with the State that the trial court erred in finding a “problem” with the stop of Calhoun’s vehicle sufficient to grant her motions.

The evidence presented at the hearing on Calhoun’s motion showed that an officer with the Gwinnett County Police Department DUI Task Force was on routine patrol on Pleasant Hill Road when he observed Calhoun’s blue Miata, which was directly ahead of him in the left turn lane, make a “very wide, sweeping turn out to the right side of the roadway,” into a yellow cross-hatched triangle. The turn brought the car into another lane, forcing the driver to make “a sharp, jerking motion back to the left” to return to her lane of travel.

The officer pulled Calhoun’s vehicle over and asked Calhoun for her driver’s license and proof of insurance. As he was standing at the driver’s side window of Calhoun’s car, he smelled the odor of alcohol coming from the car. When he asked Calhoun to step out of the car, he noticed that she was unsteady on her feet. He also determined that the strong odor of alcohol was emanating from Calhoun. In addition, Calhoun’s speech was “somewhat thick,” her face was pale, her eyes were glazed, and she swayed when she walked. Calhoun was cooperative initially, but she became argumentative when the officer requested that she perform voluntary field evaluations. She refused initially, but eventually acceded to the officer’s request, and the evaluations were performed. The officer detected six clues out of a possible six on the horizontal gaze nystagmus test. He testified that Calhoun transposed some of the letters in the alphabet evaluation, missed heel to toe, stepped off line, and lost her balance during the walk and turn evaluation and refused to take an alco-sensor test. In the officer’s opinion, Calhoun was a less safe driver, and he placed her under arrest. He then read her the Georgia Implied Consent Warning for persons under 21 years of age and requested that she submit to a breath test. Calhoun agreed, and the officer transported her to the Gwinnett County Jail, where the Intoxilyzer machine was located. He observed Calhoun breathing in “short, choppy . . . puffs in the machine and not allowing it to get enough going into it.” The test was run twice, and in each instance the printout read “insufficient sample.”

At this point in the trial, the trial court recessed the hearing, both because defense counsel was experiencing medical problems and the Intoxilyzer operator had not yet arrived. Although the hearing reconvened several months later, the Intoxilyzer operator was absent.

Calhoun filed a motion to dismiss and/or to suppress, arguing in her amended motion to suppress that her turn was made in “a reasonable manner, completely within her lane of traffic.” She argues that she was pulled over “despite an absence of any specific and articulable facts which, taken together with rational inferences from those facts, reasonably warranted such an intrusion” and without “any objective manifestation that she was, or was about to be, engaged in criminal activity.” The trial court granted both motions, finding only that “there is a problem with the stop that merits granting Defendant’s motions.”

The State contends the trial court erred in its ruling because the arresting officer had sufficient articulable suspicion to conduct a brief investigatory stop of Calhoun’s car. We agree.

We note initially that, as we read Calhoun’s motions, only the motion to suppress implicates the stop. Calhoun’s motion to dismiss is predicated upon issues surrounding Calhoun’s refusal or inability to provide a sufficient breath sample for analysis. Calhoun’s amended motion raises the issue of the validity of the stop of her car, but amends only the motion to suppress, not the motion to dismiss. The rationale for the trial court’s order is recited, and that rationale applies only to the motion to suppress.

We first address the grant of the motion to suppress, based on an unlawful stop. Calhoun alleged in her motion that the stop was unlawful because she had not violated any criminal law. Her argument appears to presume that a criminal law must have been violated for the stop to have been valid. This is simply not the law.

In this case, the officer was the only witness who testified at the hearing. Calhoun did not present any evidence contradicting the officer’s account of the stop. “When the evidence is uncontroverted and no issues of witness credibility are presented, we review de novo the trial court’s application of the law to undisputed facts.” (Citation omitted.) State v. Hammang, 249 Ga. App. 811 (549 SE2d 440) (2001). The primary purpose of traffic enforcement is the protection of the traveling public. So long as the stop was based upon conduct the officer observed, not on a mere “hunch,” and it was not pretex-tual, arbitrary, or harassing, an officer may act on a legitimate concern for public safety in stopping a driver. State v. Armstrong, 223 Ga. App. 350, 351-352 (2) (477 SE2d 635) (1996). The behavior giving rise to an officer’s reasonable suspicion need not be a violation of the law. Even if the driver’s actions do not amount to a per se traffic violation, an officer may have a reasonable, articulable suspicion that a traffic offense was being committed. Semich v. State, 234 Ga. App. 89, 91-92 (b) (506 SE2d 216) (1998). We cannot require an officer to make immediate judgments regarding whether every element of a particular crime has been established before making brief stops. And the fact that it is later shown that some element of the crime was not satisfied will not invalidate the stop if the officer acted in good faith in stopping the car because he believed an unlawful act was committed. “The question to be decided is whether the officer’s motives and actions at the time and under all the circumstances, including the nature of the officer’s mistake, if any, were reasonable and not arbitrary or harassing.” (Citation and punctuation omitted.) Armstrong, supra at 352.

Here, the State demonstrated facts from which we can determine that the stop was not pretextual, arbitrary, or harassing. It was not based upon a mere “hunch,” but upon the officer’s observation of erratic driving behavior. “No purpose of deterrence would be served by suppressing the evidence found in this case, which was the product of a stop prompted by the officer’s legitimate concern for public safety.” (Citation and punctuation omitted.) Hammang, supra. The trial court erred in granting Calhoun’s motion to suppress.

Decided June 12, 2002.

Gerald N. Blaney, Jr., Solicitor-General, Jeffrey P. Kwiatkowski, Gary S. Vey, Assistant Solicitors-General, for appellant.

Because the trial court’s ruling appears to grant the motion to dismiss as well, we now address that motion. The motion to dismiss was based upon the circumstances surrounding the breath test. Calhoun argued that the accusation should be dismissed because she repeatedly asked for “another opportunity to take the test or to submit to an alternative method of testing or to obtain a test of her own choosing at her own expense,” which requests were denied. Calhoun contended that these circumstances deprived her of due process of law “by eliminating her opportunity to gather exculpatory evidence during the limited window of availability,” and that as applied, OCGA §§ 40-5-67.1, 40-5-153, and 40-6-392 are unconstitutional. The only rationale the trial court gave for granting the motions was that “there is a problem with the stop.” The motion to dismiss, however, was not based upon the stop, but rather upon the circumstances surrounding the breath test. No evidence was presented showing that Calhoun was denied due process of law. The arresting officer testified that he read Calhoun the implied consent warning and that he was present when the breath tests were administered “in the seats that are directly in front of the Intox machine.” He could see and hear Calhoun, and he testified that Calhoun did not request an independent test of her blood, breath, urine, or other bodily substance. No other witnesses testified. No evidence was presented that Calhoun requested an independent test of her own choosing, which was denied by the officers. No basis therefore existed for granting the motion to dismiss. The trial court’s ruling must be reversed in its entirety.

Judgment reversed.

Eldridge and Ellington, JJ, concur.

       Calhoun has not filed a brief in this court.


author: Pope, Presiding Judge.

text:
    A02A0045.
    In the Interest of R. S., a child.
    (566 SE2d 461)
   Pope, Presiding Judge.

R. S. J., the biological father of R. S., appeals the termination of his parental rights and contends there was insufficient evidence to support the decision. Because we find that there was no evidence presented to support one of the required elements necessary to support termination, we reverse.

In reviewing the trial court’s decision, 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).

The child was born on November 28, 1996, one month after R. S. J. and the child’s mother, G. S., were divorced. One month later, a neighbor told R. S. J. that his ex-wife had given birth and that he could be the father. R. S. J. acknowledged that possibility and even wondered if he could get some blood from the child’s finger in order to check. The neighbor also encouraged him to get a lawyer and “fight for the baby.” R. S. J. did not take any such action at the time. Meanwhile, at sometime prior to May 1997, the child’s mother entered into a relationship with another man, M. S.

In May 1997, the Chatham County Department of Family & Children Services (“DFCS”) became involved with the family because of allegations of neglect and possible abuse. At that time, G. S. represented that she and M. S. were married and that M. S. was the father of the child. A case plan was developed for keeping the child in the home. However, G. S. and M. S. failed to comply with the plan, and in February 1998, they moved to Tennessee with the child. The case was transferred to proper authorities in that state.

In May of that year, G. S. returned to Georgia but did not have housing. She checked herself into an in-patient facility, apparently for treatment for schizophrenia and poly-substance abuse. At that point, DFCS took custody of the child and filed a petition alleging deprivation. On May 18, 1998, the juvenile court held a hearing at which evidence was presented that showed the child was deprived. The court entered an order finding deprivation, and that order has not been appealed. The court found that the child was deprived based on the mother’s admission that she had been diagnosed with schizophrenia and poly-substance abuse. She had failed to comply with treatment plans, to regularly take her medication, or to regularly attend aftercare services. Furthermore, the child lacked a stable home environment, and even before they moved to Tennessee, the couple had failed to complete the case plan.

The court transferred temporary custody to DFCS and incorporated by reference a case plan for reunification with G. S., but she failed to comply with that plan and extensions thereof.

In June 1999, G. S. told DFCS for the first time that R. S. J. could be the father of the child. In July or August, R. S. J. contacted DFCS and inquired about the child. He was told at that time that he would need to submit to a paternity test.

On October 12, 1999, DFCS petitioned for termination, and, in addition to G. S. and M. S., it served R. S. J. with a copy of the petition. He received it later that month. At a hearing on the petition on December 16, R. S. J. obtained a continuance on the grounds that he had recently submitted to a paternity test, which established paternity, and that, therefore, he was seeking time to work with DFCS toward the possibility of having the child placed in his or a family member’s care.

The termination hearing was reconvened on May 2, 2000. A significant part of the evidence presented reflected favorably on R. S. J. After the continuance was granted, DFCS developed a case plan with a goal of placing the child with him. The goals included stable housing, stable employment, abstinence from drug and alcohol use, parenting classes, and a psychological examination. From December 1999 through May 2000, R. S. J. had maintained stable employment and a home. The home was clean and the utilities paid for. He had visited the child and shown adequate parenting skills when he was with the child. He had been more than willing to comply with other aspects of the plan and had stayed in contact with DFCS on a regular basis. Further, R. S. J. was prevented by DFCS from completing some elements of the plan due to scheduling difficulties. This included obtaining the psychological exam and parenting classes. He did fail to present to DFCS proof that he had attended substance abuse training, but the evidence showed that he was receiving counseling. He also sought, as was required by the plan, to legitimate the child. Finally, the DFCS caseworker testified that in her career of working with people on reunification plans, she had never seen anyone as dedicated as R. S. J. had been.

Significant evidence was also presented that reflected poorly on R. S. J. The Ware County Department of Family & Children Services conducted a required evaluation of R. S. J.’s home, which was located in that county. That review included a background check that revealed (1) a felony conviction for terroristic threats, interference with government property, and simple battery, which was entered on February 29, 2000; (2) a conviction dated January 13, 1997, for driving under the influence, driving without a license, and driving without proof of insurance; (3) a conviction dated January 15, 1997, for public indecency, public drunkenness, and disorderly conduct; (4) a conviction for the felonies of terroristic threats and obstruction of justice, and the misdemeanors of driving under the influence, obstruction, and driving without proof of insurance arising out of incidents occurring on January 13, 1996, during which R. S. J. threatened to kill a law enforcement officer; (5) a felony conviction for possession of cocaine for events occurring on October 2, 1990; (6) a conviction for the misdemeanors of criminal trespass and reckless conduct arising out of shooting through a glass door thereby endangering another on November 2, 1989; (7) a conviction dated February 23, 1990, for driving under the influence, driving with a suspended license, running a stop sign, driving without proof of insurance, simple assault, and obstruction; and (8) evidence of 30 arrests including some involving violent conduct and terroristic acts.

On the most recent conviction, R. S. J. was given three years probation and banished from the Eastern Judicial Circuit. He was also ordered to participate in evaluation and treatment for alcohol and drug abuse. That conviction occurred after R. S. J. obtained the paternity test and sought a continuance in this case, and it arose out of events occurring in late 1999, after he admits he became aware of the possibility of his paternity. Several of the other convictions occurred after the birth of the child, and R. S. J. has been incarcerated on a total of five different occasions. As a result of the criminal background, Ware County denied placement of the child with R. S. J. in his home.

R. S. J.’s substance abuse counselor also testified. At the time of the hearing, R. S. J. had been enrolled in a 12-step substance abuse program. He had regularly attended, appeared motivated, and was about at the middle of the program for dealing with his addiction. Although the counselor believed he was a good candidate for recovery, he agreed that R. S. J.’s recent behavior that resulted in a conviction for terroristic threats, interference with government property, and simple battery was inconsistent with his optimistic opinion of R. S. J.’s chance of recovery.

On June 6, 2000, based on the evidence described above, the court terminated the rights of G. S. and R. S. J. to the child. The court initially found that R. S. J. was the legal and natural father of the child because the child was born within the gestation period after the parents’ divorce and because of the paternity test results. The court concluded that the child was deprived and that the cause of the deprivation was the failure of the parents to provide care for the child. The court also held that this failure was likely to cause harm to the child by virtue of his languishing in foster care.

With regard to R. S. J., the court found that he had “substantially complied” with the requirements of the case plan, but found that he had an ongoing substance abuse problem. And although R. S. J. had only recently conclusively established paternity, he had known about the possibility for years before coming forward to assert his right to the child, and he took formal steps only after the termination petition was filed.

OCGA § 15-11-94 establishes a two-step process for considering parental rights cases. The court is first required to determine whether there is clear and convincing evidence of parental misconduct or inability. If there is, the court considers whether termination of parental rights is in the best interest of the child. Id. “Only under compelling circumstances found to exist by clear and convincing proof may a court sever the parent-child custodial relationship.” Carvalho v. Lewis, 247 Ga. 94, 95 (274 SE2d 471) (1981).

Parental misconduct or inability is established upon finding that the child is deprived; that the lack of proper parental care or control is the cause of the deprivation; that the child’s deprivation is likely to continue or will not be remedied; and that continued deprivation is likely to cause serious physical, mental, emotional, or moral harm to the child. OCGA § 15-11-94 (b) (4) (A); [cit.]

In the Interest of C. N. S., 248 Ga. App. 84, 85 (545 SE2d 633) (2001).

Evidence was presented sufficient to show the first three of these elements. When the juvenile court awarded temporary custody to DFCS it found that the child was deprived and entered an order to that effect, which was not appealed. See In the Interest of C. J. V., 236 Ga. App. 770, 774 (513 SE2d 513) (1999). Furthermore, R. S. J. has not disputed that the child is deprived. The trial court found that the child is languishing in foster care, and that is supported by the record. Second, lack of proper parental care or control may be shown by the “ [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.” OCGA § 15-11-94 (b) (4) (B) (iii). And repeated incarcerations for criminal offenses can constitute evidence of aggravating circumstances sufficient to compel termination of parental rights. In the Interest of C. N. S., 248 Ga. App. at 85-86; In the Interest of B. C, 235 Ga. App. 152, 154 (a) (508 SE2d 774) (1998). R. S. J.’s criminal history and history of alcohol abuse during the life of the child plus his failure to take any steps to assert his rights as a parent until formal termination proceedings were brought were, at least in part, a cause of the child’s deprivation. Finally, evidence of past conduct may be considered in determining whether the deprivation is likely to continue if the children are returned to their parent. In the Interest of C. W. D., 232 Ga. App. 200, 204 (1) (501 SE2d 232) (1998). Furthermore, R. S. J. was convicted and sentenced for committing felonies after the time that he began to assert his parental rights to the child. Therefore, as of the time of the hearing, any rational trier of fact could have found by clear and convincing evidence that the cause of deprivation would continue. See In the Interest of C. N. S., 248 Ga. App. at 85-86.

Decided June 13, 2002.

Darden, Burns & Harris, Richard M. Darden, John D. Gatch, for appellant.

However, in order to terminate parental rights, the court must also find by clear and convincing evidence that “[t]he continued deprivation will cause or is likely to cause serious physical, mental, emotional, or moral harm to the child.” OCGA § 15-11-94 (b) (4) (A) (iv). We find that although the court made that conclusion, it did not support the conclusion with explicit findings, and, therefore, we must reverse.

In the Interest of K. J., 226 Ga. App. 303, 307 (2) (b) (486 SE2d 899) (1997), is on point. There the father’s repeated incarcerations supported findings that the father’s lack of parental care or control caused the child to be deprived and that this deprivation was likely to continue. Id. at 306-307 (2) (a). In that case, the court found that continued deprivation would likely cause serious physical, mental, emotional, or moral harm to the child, but the order did not contain explicit findings supporting that conclusion. Id. at 307 (2) (b). Such findings are required. Id. (and cases cited therein). Accordingly, we reversed the trial court’s decision. Id. at 307-309 (2) (b).

In this case, the trial court found that the parents’ failure to provide care for the child “is likely to cause harm to the child by virtue of [the child’s] languishing in temporary foster care.” But, the order does not contain explicit factual findings supporting that conclusion. And, the court’s conclusion fails to consider that placing the child with R. S. J. would bring an end to the child’s placement in foster care. Moreover, our own review of the record fails to yield any other evidence on this issue. No witness testified that the child was likely to suffer harm if R. S. J.’s parental rights were not terminated. Some of the only evidence on point was that R. S. J. showed adequate parenting skills during his conduct with the child. Similar to K. J. and In the Interest of J. M., 251 Ga. App. 380 (554 SE2d 533) (2001), “the lack of evidence and findings on this matter precludes us from concluding that the evidence authorized the juvenile court to find by clear and convincing evidence that the [child was] likely to suffer serious physical, mental, moral, or emotional harm; thus, we are constrained to reverse.” 251 Ga. App. at 384 (4).

Judgment reversed.

Ruffin, J., concurs. Barnes, J., concurs in the judgment only.

Thurbert E. Baker, Attorney General, William C. Joy, Senior Assistant Attorney General, Shalen S. Nelson, Laura W. Hyman, Assistant Attorneys General, Beckmann & Lewis, Leo G. Beckmann, Jr., for appellee.

       The mother has not appealed the termination other parental rights.


text:
    A02A0135.
    MOORE v. WVL RESTAURANT.
    (566 SE2d 465)
   Pope, Presiding Judge.

John G. Moore appeals entry of summary judgment against him in his suit for damages arising out of injuries he sustained falling on ice while departing a Krystal restaurant operated by WVL Restaurant. He contends there are issues of fact.

The undisputed evidence shows that early Sunday morning on February 4, 1996, a sleet and ice storm hit Atlanta including the area where the restaurant was located. Ice covered the parking lot and the area surrounding the restaurant. On Monday, the sky cleared, but it was still very cold and ice was still present in some of those same areas, although some of the ice that had accumulated on Sunday had begun to melt. On that day, Moore and his wife went to Krystal to have lunch. Moore did not have any problem driving on the roads on the way. They parked in the back of the restaurant and approached by using a handicap ramp, which was still in the shade at the time Moore entered the restaurant. Moore did not encounter any ice, salt, sand, or warning signs on his way in. Moore had been to the same Krystal restaurant at least four times and was generally familiar with the layout of the restaurant. After the couple finished lunch, they exited by the same door and walked down the same handicap ramp. In fact, Moore had walked over the same area of the ramp where he fell. On his way down the ramp, while looking straight ahead and not at the ground in front of him, Moore slipped on ice, causing him to fall and injure himself.

Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. OCGA § 9-11-56 (c). We apply a de novo standard of review to an appeal from a grant of summary judgment and 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 (1) (486 SE2d 684) (1997).

In order to recover for injuries from a slip and fall,

an invitee must prove (1) that the defendant had actual or constructive knowledge of the hazard; and (2) that the plaintiff lacked knowledge of the hazard despite the exercise of ordinary care due to actions or conditions within the control of the owner/occupier. However, the plaintiff’s evidentiary proof concerning the second prong is not shouldered until the defendant establishes negligence on the part of the plaintiff — i.e., that the plaintiff intentionally and unreasonably exposed self to a hazard of which the plaintiff knew or, in the exercise of ordinary care, should have known.

Robinson v. Kroger Co., 268 Ga. 735, 748-749 (2) (b) (493 SE2d 403) (1997).

Moore contends that WVL had actual knowledge of the hazard but failed to take steps to prevent an accident. The operations manager who came on duty at 7:00 a.m. on the day of the fall realized that the whole parking lot and the sidewalks were “a sheet of ice,” and so he salted the sidewalks and the walkways “on the front part of the building, which was the main access to the building.” He testified that walking conditions were “very treacherous” everywhere. He chose not to salt near the back entrance because there were few guests coming that day on account of the conditions. But, the manager did not place any signs or other indication at the back door to warn visitors. The restaurant had an hourly inspection procedure that included outdoor areas, but there is no indication that anyone had inspected outside of the back door that morning.

Construed in favor of Moore, these facts show, at a minimum, constructive knowledge that the area around the restaurant was covered with ice. The manager admitted that he had actual knowledge of the ice and that it was everywhere. Although there is no evidence that anyone at the restaurant saw the specific ice on which Moore fell, this blanket knowledge of the ice sheet covering the entire parking lot and other areas outside of the restaurant is sufficient to raise a jury issue as to whether WVL had actual knowledge of this ice. Despite this knowledge, the manager chose not to take steps to safeguard the open back entrance.

Further, there is no evidence that the inspection procedures were followed that morning with regard to the area outside of the back door, which is sufficient to create an issue of fact regarding constructive knowledge. See Kauffman v. Eastern Food & Gas, 246 Ga. App. 103, 105 (2) (539 SE2d 599) (2000). The owner’s argument that because the ice was naturally occurring, it had no duty to find and remove it is without merit under these circumstances. Id. at 105-106 (3) (that ice occurred naturally does not preclude examination of whether defendant was negligent in failing to take remedial action). Columbus Doctors Hosp. v. Thompson, 224 Ga. App. 682 (482 SE2d 705) (1997), is distinguishable on the facts, because in that case the hospital’s employees “saw no areas that appeared to be iced over,” despite “regular inspections of the premises.” Id. at 683-684.

Decided June 13, 2002.

Peter M. Blackford, Jr., for appellant.

Benton, Preston & Malcom, Robert M. Malcom, for appellee.

Although Moore also had knowledge of the conditions that day, construing the evidence in favor of Moore, a jury question exists as to whether the restaurant’s knowledge was superior because it knew of the hazard but chose not to take action near the back entrance. See Wallace v. Nissan of Union City, 240 Ga. App. 658, 659-660 (1) (524 SE2d 542) (1999). Compare Gilliam v. Fletcher Bright Co., 244 Ga. App. 315, 316 (1) (535 SE2d 325) (2000) (plaintiff observed areas of snow and ice on the parking lot). Furthermore, Moore denied seeing ice on his way into the restaurant, and, even though he passed over the spot where he fell, the ice may have been difficult to see. Therefore it cannot be said as a matter of law that he had knowledge of the specific ice upon which he fell. See Telligman v. Monumental Properties, 161 Ga. App. 13, 16 (2) (288 SE2d 846) (1982) (“it is a plaintiff’s knowledge of the specific hazard . . . which is determinative”) (emphasis in original).

Judgment reversed.

Ruffin and Barnes, JJ, concur.


author: Miller, Judge.

text:
    A02A0234.
    A02A0235.
    CHEROKEE COUNTY v. GREATER ATLANTA HOMEBUILDERS ASSOCIATION, INC. GREATER ATLANTA HOMEBUILDERS ASSOCIATION, INC. et al. v. CHEROKEE COUNTY.
    (566 SE2d 470)
   Miller, Judge.

Greater Atlanta Homebuilders Association, Inc. challenged Cherokee County’s impact fee ordinance (per application) as unconstitutional and contrary to the enabling statute. The crux of the challenge rested on the county’s failure to impose impact fees on new developments in incorporated portions of the county even though those developments would benefit from new facilities constructed with the impact fees obtained from new developments in unincorporated portions. We hold that since statutorily the county lacked the power to impose impact fees on new developments in incorporated portions, the county acted rationally and reasonably in imposing impact fees on only those developments over which it had the power to impose fees. Accordingly, we uphold the impact fee ordinance in toto and reverse that portion of the trial court’s judgment holding otherwise.

Effective May 2000, Cherokee County enacted an impact fee ordinance that, closely tracking the language of OCGA § 36-71-1 et seq., required persons constructing new developments in the county to pay an impact fee before receiving a building permit. Cherokee County Ordinance Code § 25. The varying amounts of the fees, which were to be used to construct new facilities in six infrastructure areas (libraries, parks/recreation, roads, sheriff’s patrol, public safety, and fire protection), hinged on the Capital Improvements Element (the “CIE”) portion of the Cherokee County Comprehensive Plan. The CIE calculated service areas for the six areas, the level of service in those areas, and the projected facilities needed to accommodate growth. Subtracting millions in sales tax revenues to be derived from new growth that was anticipated to assist in paying for new facilities, the CIE calculated the impact fees for each type of new development. The calculations were based on the countywide population and countywide growth and assumed that all new developments of the county (whether in incorporated or unincorporated portions) would pay impact fees.

The Greater Atlanta Homebuilders Association, representing local developers, sought a declaratory judgment that the ordinance as applied did not comport with the enabling statute and violated due process and equal protection principles of the Georgia and federal constitutions. After denying the Association’s motion for summary judgment, the court conducted a bench trial and upheld the ordinance as constitutional and as consistent with the statute. It further upheld the CIE impact fees calculated for the sheriff’s patrol, public safety, and fire protection services, but it found that the CIE impact fees calculated for libraries, parks/recreation, and roads violated due process and equal protection principles. The court found offensive that new developments in incorporated portions of the county (on which the ordinance did not impose an impact fee) would benefit from the new facilities that would be built with the impact fees received from new developments in unincorporated portions. The court restrained the county “from further collecting impact fees for the categories of libraries, transportation or road services, and parks and recreation, until such time as a system can be devised to exclude non-feepayors from benefitting, or until ‘intergovernmental agreements’ for collection of like or substitute fees can be arranged.”

Both parties appealed to the Supreme Court of Georgia, which transferred the cases to this Court on the basis that the cases required “only the application of plain and unambiguous provisions of the Constitution to the facts.” In Case No. A02A0234, the county appeals the ruling that portions of the CIE were unconstitutional, and in Case No. A02A0235, the Association appeals the ruling that the portions of the CIE and ordinance were constitutional and in conformance with the enabling statute. We hold that the entire ordinance and CIE are constitutional and in conformance with the enabling statute, and we therefore reverse in Case No. A02A0234 and affirm in Case No. A02A0235.

Case No. A02A0234

1. The county argues that the impact fees imposed for libraries, parks/recreation, and roads conform to due process and equal protection principles and are therefore constitutional. Since the county imposes the fees equally on all those subject to its building permit authority, we agree.

The enabling statute authorizes counties and cities that have adopted a CIE to impose (by ordinance) impact fees as a condition of development approval. OCGA § 36-71-3 (a). The fees are not to exceed a proportionate share of the cost of system improvements (OCGA § 36-71-4 (a)) and are to be calculated on the basis of (i) service areas defined by the county on the basis of sound planning or engineering principles (OCGA §§ 36-71-2 (17); 36-71-4 (b)) and (ii) levels of service for public facilities applicable to existing development and to new growth and development. OCGA § 36-71-4 (c). The Cherokee County Ordinance as enacted closely tracks this language. Cherokee County Ordinance Code § 25-3, Par. 58. For specific calculations, the ordinance relies on the CIE portion of its comprehensive plan. Id. at Par. 62.

With regard to libraries, parks/recreation, and roads, the CIE established the service area for each category as countywide and calculated levels of service as follows: (i) for libraries, 1.343 square feet of library facility and 2.9761 books for each housing unit; (ii) for parks/recreation, 10.54 acres of park for every 1,000 housing units; and (iii) for roads, a “D” level of service (high density but stable flow) based on a nationally recognized scale. To maintain these levels of service with anticipated new growth, the CIE determined the new facilities needed for the entire county, their costs (less those capital improvement funds anticipated from sales tax revenue generated from new growth), and the per unit fees that would represent a proportionate share of those costs generated by each new development anticipated in the county (whether in an incorporated or unincorporated portion of the county).

The Association’s primary complaint about the impact fees is that the county imposed the fees only on new developments in unincorporated portions of the county, allowing new developments in incorporated portions of the county, which would also benefit from the countywide system improvements, a “free ride.” The court below agreed with the Association and found that such violated the due process and equal protection principles of the Georgia and federal constitutions.

“The constitutional guaranty of equal protection requires that all persons shall be treated alike under like circumstances and conditions. However, it does not prevent a reasonable classification relating to the purpose of the legislation.” (Citations omitted.) Reed v. Hopper, 235 Ga. 298, 300 (5) (219 SE2d 409) (1975). Indeed, a statutory classification, such as the one at issue here, that neither proceeds along suspect lines nor infringes fundamental constitutional rights, “must be upheld against equal protection challenge if there is any reasonably conceivable state of facts that could provide a rational basis for the classification.” (Citations omitted.) Fed. Communications Comm. &c. v. Beach Communications, 508 U. S. 307, 313 (II) (113 SC 2096, 124 LE2d 211) (1993). Similarly, under substantive due process, “[w]here ... it is not a fundamental right that is infringed and the person complaining is not a member of a suspect class, the government action is examined under the rational basis test, the least rigorous level of constitutional scrutiny. [Cit.]” Old South Duck Tours v. Mayor &c. of Savannah, 272 Ga. 869, 872 (2) (535 SE2d 751) (2000).

“The rational basis test requires that the classification drawn by the legislation be reasonable and not arbitrary, and rest upon some ground of difference having a fair and rational relationship to the legislation’s objective, so that all similarly situated persons are treated alike.” (Citation omitted.) Old South Duck Tours, supra, 272 Ga. at 873 (3). Parties challenging legislation on these grounds must show that “the legislative facts on which the classification is apparently based could not reasonably be conceived to be true by the government decisionmaker.” (Citations and punctuation omitted.) Id. “This inquiry employs a relatively relaxed standard reflecting the Court’s awareness that the drawing of lines that create distinctions is peculiarly a legislative task and an unavoidable one. Perfection in making the necessary classifications is neither possible nor necessary. Such action by a legislature is presumed to be valid.” (Citation and footnote omitted.) Massachusetts Bd. of Retirement v. Murgia, 427 U. S. 307, 314 (II) (96 SC 2562, 49 LE2d 520) (1976).

Here the enabling statute authorized Cherokee County, one of the fastest growing counties in the State of Georgia, to impose an impact fee as a condition of development approval, which fee was to be collected at the time the county issued a building permit. OCGA §§ 36-71-3 (a); 36-71-4 (d). The county’s authority to require development approval through a building permit, however, is restricted to development in unincorporated portions of the county. OCGA § 36-13-1. Thus, the General Assembly has limited Cherokee County’s authority to impose impact fees to the unincorporated portions of the county. It has authorized but not required counties to enter into intergovernmental agreements with municipalities to jointly collect impact fees to pay for system improvements benefitting both. OCGA § 36-71-11.

The Association has been careful not to challenge the constitutionality of the enabling statutes. Rather, it has challenged the county’s impact fees as unconstitutional on the ground that new developments in incorporated portions of the county do not pay impact fees, even though those developments will benefit from the fees paid by new developments in unincorporated portions.

The Association’s argument falls of its own weight. The county has imposed an impact fee on all new developments within the unincorporated portions of the county, which is all it has the power to do. It has not made a “classification” exempting incorporated developments from the fees, for by statute the county simply has no power or control over developments in municipal limits. The reason new developments in municipalities do not pay the fees is not because of any legislative distinction or action by the county, but results from decisions by the municipalities not to impose such fees and not to enter into optional intergovernmental agreements with the county regarding such. Thus, this “classification” (if it can be called such) has a rational basis, which is simply that the county has no power to impose impact fees on those developing in incorporated areas. It imposes fees on all it can. If the county had the authority to impose fees on municipal development and nevertheless chose to impose fees only in unincorporated areas, our analysis could well reach a different conclusion. See City of Lithonia v. DeKalb County Bd. of Ed., 231 Ga. 150, 153 (200 SE2d 698) (1973); Richmond County v. Richmond County Business Assn., 228 Ga. 281, 282-283 (2) (185 SE2d 399) (1971). The Association’s citation to St. Johns County v. Northeast Florida Builders Assn., 583 S2d 635 (Fla. 1991), for a contrary proposition is unavailing, as this decision of the Florida Supreme Court is not binding nor precedential in Georgia.

Finally, it is undisputed that those paying the fees will receive the benefits of that burden through system improvements (as will some who do not pay), similar to a situation where people who pay a certain tax benefit from the tax but so do others who do not pay the tax. Youngblood v. State of Ga., 259 Ga. 864, 865-866 (2) (388 SE2d 671) (1990), held: “The fact that others may consequently benefit without having paid any tax does not render the Act violative of state and federal constitutional due process and equal protection guarantees. [Cit.]”

Accordingly, the county’s ordinance and CIE imposing specified fees for system improvements for libraries, parks/recreation, and roads did not violate due process or equal protection guarantees. The court erred in holding otherwise, and we therefore reverse this portion of the court’s judgment. This also reverses the trial court’s judgment to the extent it enjoins the county from collecting any portions of the impact fees or from disbursing them to pay for authorized improvements.

Case No. A02A0235

The Association cross-appeals that portion of the court’s order upholding those fees relating to sheriff’s patrol, public safety, and fire protection. The court had found that the cities were either paying fees or paying by service in-kind for the county’s facilities in these areas and therefore the county’s imposition of impact fees on only the unincorporated portions of the county did not violate due process or equal protection principles. The Association disputes this and further challenges the judgment on the grounds that (i) the court had earlier failed to grant the Association summary judgment despite the failure of the county to submit contradicting evidence, (ii) the ordinance as applied did not comply with the enabling statute, and (iii) the county improperly designated levels of service and improperly calculated fees.

2. “The Association contends the trial court erroneously denied it summary judgment, asserting that it made its prima facie case and [the county] failed to respond. Because the case went to trial and the court rendered judgment, this contention is moot.” (Footnote omitted.) Southland Owners Assn. v. Myles, 252 Ga. App. 522, 524-525 (3) (555 SE2d 530) (2001).

3. The equal protection and due process challenges fail for the same reasons set forth in Division 1 above. Moreover, the factual basis for the challenges — namely that developments in incorporated areas were not paying any fees but were receiving the benefits — fails in light of the court’s findings (supported by the evidence) that municipal citizens were paying fees or services in-kind. For example, the cities of Woodstock and Canton have their own fire protection systems, which provide backup service to the county just as the county provides backup service to them. City police departments similarly provide and receive mutual aid to and from the county sheriffs patrol. And with regard to public safety, the cities pay jail fees when they use the county jail to incarcerate municipal offenders.

4. The Association contends that the county ordinance and CIE do not comply with the enabling statute, which requires that the impact fees not exceed a proportionate share of the cost of system improvements. See OCGA § 36-71-4 (a). “Proportionate share” is defined as “that portion of the cost of system improvements which is reasonably related to the service demands and needs of the project.” OCGA § 36-71-2 (15). Since fees were coming from only the unincorporated portions of the county, the Association argues that the fees would pay for the entire cost of the new system improvements and were therefore disproportionately high.

The Association’s argument ignores the careful calculation procedures employed by the county in its CIE to ensure otherwise. The county projected system improvements based on growth throughout the entire county, and then calculated impact fees on the basis that all new developments throughout the county, whether in incorporated or unincorporated areas, would pay impact fees to cover these new improvements. Since the incorporated developments are not currently paying impact fees to the cities, there will likely be a shortfall. Nevertheless, the existence of a shortfall does not diminish the fact that the fees as calculated are not disproportionate but are based on a procedure that accounted for each project’s projected impact on the need for system improvements. A probable shortfall is a fiscal problem of the county that will need to be remedied through some avenue. The calculation of the fee itself, however, was based on the project’s actual proportional impact to the system. If the county had simply wanted to raise sufficient revenue to cover all improvements and had raised the impact fees to account for no revenue coming from incorporated developments, the resulting extra charge on unincorporated developments could possibly be argued as disproportionate. The county did not do this, and therefore the Association’s argument that the unincorporated developments are paying a disproportionate share fails.

5. The Association claims that the county improperly calculated the impact fees. Specifically, the Association points to OCGA § 36-71-4 (r), which requires that the fees be calculated on a basis “which is net of credits for the present value of revenues that will be generated by new growth and development based on historical funding patterns and that are anticipated to be available to pay for system improvements, including taxes, assessments, user fees, and intergovernmental transfers.”

Evidence showed and the court found that the county credited the anticipated revenues. Grants, state funds, and millions in sales tax revenues from growth were credited to the cost of the projects. The Association claims that in the past impact fees were not a source of system improvement funds and therefore the county could only calculate the impact fees as if the general tax revenues and other sources were assumed to pay as much as they did in the past. If adopted, this approach would defeat a key purpose of the impact fee statute, which is to allow a new source of funding system improvements necessitated by growth and to have that growth pay its proportionate share of the public facilities needed to serve that growth. See OCGA §§ 36-71-1 (b) (4); 36-71-3 (a). Since this is something not done in the past, a county may assume that along with historical funding sources, impact fees will also be used to pay for capital improvements, which by definition would reduce the historical share that other funding sources pay for those improvements. Otherwise impact fees would never be justified. We agree with the trial court that the county did not abuse its discretion in this regard.

6. The Association also complains that the levels of service calculated by the county for sheriff’s services and fire protection services were in error. The county determined that (i) for sheriff’s services, the current level of service was 98.31 square feet of precinct space per 1,000 population, and (ii) for fire protection services, the current level of service (as augmented by five new fire stations already funded and under construction) was 550.35 square feet of facility and 0.3337 fire trucks per 1,000 population. The Association points to the testimony of the sheriff’s department representative and of the fire department representative that neither used square-footage-of-facility-to-population ratios to determine levels of service, but rather focused on response time or workload (matters driven by numbers of personnel). This testimony, however, is irrelevant since impact fee calculations focus not on needed personnel but on needed facilities to accommodate the new growth. The county therefore had a rational basis for using facility square footage to determine levels of service for impact fee purposes. We agree with the trial court that the county did not abuse its discretion in this regard.

Accordingly, we affirm the trial court’s judgment on those issues raised in Case No. A02A0235. The overall effect of our decision in both cases is to uphold the entirety of the Cherokee County ordinance and CIE at issue.

Judgment reversed in Case No. A02A0234. Judgment affirmed in Case No. A02A0235.

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

Decided June 13, 2002

Jenkins & Nelson, Frank E. Jenkins III, Peter R. Olson, Robert M. Mahler, for Cherokee County.

Page, Scrantom, Sprouse, Tucker & Ford, Deron R. Hicks, George G. Boyd, Jr., Miller P. Robinson, James A. Balli, for Greater Atlanta Homebuilders Association, Inc. et al.

       The equal protection guarantees of the Georgia and federal constitutions are coextensive. Ambles v. State, 259 Ga. 406, 407 (2) (383 SE2d 555) (1989). The due process guarantees are substantively identical. Compare Fifth Amendment to the U. S. Constitution with 1983 Ga. Const., Art. I, Sec. I, Par. I.

       Cities have recourse under the intergovernmental agreements that can be formulated under the statute.


text:
    A02A0352.
    ALCATEL NA CABLE SYSTEMS, INC. v. PRINVEST CORPORATION.
    (566 SE2d 467)
   Miller, Judge.

A subcontractor assigned to its creditor the proceeds from its contract with a general contractor, who acknowledged the assignment. The subcontractor and the contractor arbitrated to a federal judgment the amount due under the contract. The subcontractor’s attorneys then notified the contractor that they also had a claim to the judgment proceeds. Faced with the conflicting claims of the creditor and of the subcontractor’s attorneys, the contractor obtained federal court permission to pay the amount of the judgment into the federal court registry in satisfaction of the judgment. The federal court later disbursed the funds to the attorneys. The question on appeal is whether the contractor is liable to the creditor for not having paid the judgment amount directly to the creditor as opposed to paying it into the court registry. We hold that because paying the amount into the court registry satisfied the judgment due from the contractor to the subcontractor, the contractor was relieved from liability to the creditor. Accordingly, we reverse the trial court’s grant of summary judgment in favor of the creditor.

A subcontractor (AWIN Corporation) assigned to its creditor (PrinVest Corporation) all monies due or to become due from any contracts of the subcontractor with a general contractor (Alcatel NA Cable Systems, Inc.). The subcontractor and its creditor also executed and delivered a notice to the contractor, directing the contractor to make all future payments to the creditor directly and warning that “[p]ayment to anyone other than Assignee will not constitute satisfaction of your indebtedness on Assignor’s accounts receivable due from you pursuant to the Contracts.” The contractor acknowledged receiving this notice.

Monies became due to the subcontractor under one of its contracts with the contractor, although the amount was in dispute. Pursuant to the terms of the contract, the amount was arbitrated and subsequently reduced to a $112,025 judgment in federal court. Beyond the claim of the creditor to the judgment, the subcontractor’s attorneys notified the contractor that they also had a claim to the monies.

The creditor sued the subcontractor in Massachusetts state court on debts owed to the creditor, naming the contractor as an additional party. The contractor executed a stipulation that it would pay the creditor monies due from the judgment in the federal action up to the amount of any judgment against the subcontractor in the Massachusetts case. The creditor then obtained a $93,651.80 judgment against the subcontractor.

Citing the competing claims of the creditor and of the subcontractor’s attorneys to the federal judgment, the contractor moved in the federal action under Federal Rule of Civil Procedure 67 to deposit the entire amount of the $112,025 judgment (plus interest) into the federal court registry. Opposing this motion by letter, the creditor argued that $93,651.80 of the monies should be paid directly to the creditor as assignee and pursuant to the stipulation executed by the contractor in the Massachusetts action. The federal court nevertheless granted the motion and allowed all the monies to be deposited into the court’s registry.

Without serving a copy on the creditor, the subcontractor’s attorneys filed a motion to have all the funds held in the registry disbursed to them. On the day the federal court was considering disbursing the monies to the subcontractor’s attorneys, the creditor finally learned of the motion and faxed its opposition to the court. By the time the court received the facsimile, it had already disbursed the monies to the attorneys, and the issue was moot. The creditor has since commenced an action against those attorneys in the same federal court to recover the disbursed funds.

The creditor then brought the present Georgia action against the contractor, alleging the contractor breached its duty to pay to the creditor directly all monies due under its contracts with the subcontractor. The creditor moved for summary judgment, pointing to the written notice of the assignment acknowledged by the contractor and to the Massachusetts stipulation executed by the contractor. The contractor argued that it fulfilled those obligations by paying the judgment amount into the federal court registry (with notice to the creditor). The Georgia court disagreed and entered summary judgment in favor of the creditor, which the contractor appeals.

The resolution of this appeal is straightforward. Pursuant to Rule 67 of the Federal Rules of Civil Procedure, a party may, with leave of court, deposit into the court registry funds due on a judgment in the case and thereby become entitled to a satisfaction of the judgment. United States Overseas Airlines v. Compania Aerea Viajes &c., 161 FSupp. 513, 515 (S.D. N.Y. 1958). This procedure has been properly used where the judgment debtor is faced with conflicting claims to the judgment proceeds. Id.; see Garrick v. Weaver, 888 F2d 687, 694 (III) (C) (10th Cir. 1989); Kalmanovitz v. G. Heileman Brewing Co., 649 FSupp. 638, 642 (I) (A) (D. Del. 1986).

Decided June 13, 2002.

Weinberg, Wheeler, Hudgins, Gunn & Dial, Patrick A. Thompson, D. Lee Roberts, Jr., for appellant.

Kutak Rock, Gregory R. Crochet, Ethan H. Cohen, for appellee.

The contractor here was faced with adverse claims to the federal judgment. Thus, in the same federal action in which the amount due to the subcontractor was established and entered as a judgment, the contractor with leave of court and with notice to the creditor paid the amount of the judgment into the court’s registry, thereby satisfying the judgment. Having satisfied the judgment owed to the subcontractor, the contractor was under no further obligation to pay monies to the creditor, who under the assignment and the stipulation was only entitled to receive funds owing to the subcontractor. Although the contractor would have acted at its own peril if it had paid the judgment amount directly to the subcontractor (Fulton County v. American Factors of Nashville, 250 Ga. App. 366, 371 (5) (551 SE2d 781) (2001)), here the contractor availed itself of the federally authorized procedure of paying the money into the court’s registry to allow the court to determine the conflicting claims to the money. United States Overseas Airlines, supra, 161 FSupp. at 515. The contractor gave proper notice to the creditor of its actions in this regard, and the court allowed the contractor to pay the funds into the registry over the creditor’s objections. The creditor’s receiving late notice of the subsequent successful efforts of the subcontractor’s attorneys to have the funds disbursed to them arose from those attorneys’ failure to serve the creditor with their motion, and not from any conduct on the part of the contractor. Accordingly, we discern no reason not to honor the contractor’s satisfaction of the judgment.

Inasmuch as the contractor’s debt owed to the subcontractor was satisfied, the Georgia court erred in holding that the contractor was nevertheless obligated to pay that debt again to the subcontractor’s assignee/creditor. We therefore reverse the granting of summary judgment to the creditor.

Judgment reversed.

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