text:
    A94A0142.
    In the Interest of W. R. S., a child.
    (445 SE2d 367)
   Smith, Judge.

The father of W. R. S. appeals from the termination of his parental rights by the Bacon County Juvenile Court.

The petition was brought by appellant’s former wife, the child’s mother. She sought to terminate appellant’s parental rights on several grounds, alleging that he had murdered her father and assaulted her mother; that he had failed to communicate with the child or make a bona fide attempt to do so for over one year; and that he had failed to provide any care or support for over one year.

The record shows that after appellant and his wife separated and divorce proceedings had been initiated, appellant’s wife and child lived with her parents, her brother, and her sister. Late one night, appellant broke into the house and shot his wife’s parents, killing her father and seriously wounding her mother. After handcuffing his bleeding mother-in-law to her ten-year-old son and leaving his then three-year-old son on the bed with them, appellant taped and bound his wife and her sister and took them to a mobile home in another county, where he raped and sodomized them. Appellant was convicted of various offenses arising out of the incident, including murder, aggravated assault, and kidnapping with bodily harm. He was sentenced to death for the murder, and he has been incarcerated since.

Appellant claimed he did not intend to harm anyone when he visited his in-laws’ home that night, but had merely come to see his son. He admitted, however, that he knew he was not welcome. He cut the telephone lines before entering and carried handcuffs and a nine millimeter handgun he had just purchased.

The petition was originally filed on May 28, 1992, and it was personally served on appellant. He filed an answer and a motion to dismiss, alleging that process was insufficient because summons had not issued and that service of process was insufficient because he had not been served with summons. Summons and petition were then served on appellant by the sheriff on August 5, 1992. On September 9, 1992, at the final hearing scheduled on the petition, appellant raised additional objections, including the court’s failure to appoint a guardian ad litem for the child. Appellee then requested and was granted leave to amend the petition. At that time, counsel for petitioner inquired of counsel for appellant whether the amendments should be personally served on appellant or whether counsel had authority to acknowledge service. Appellant’s counsel assured the court twice in open court that he would accept service.

On September 16, 1992, the court issued a document captioned “Summons, notice of hearing and order appointing counsel.” This document was mailed by counsel for the petitioner to appellant’s attorney and to the attorney appointed for the child, with a certificate of service attached. On September 22, 1992, the court issued notice that a hearing would be held on October 28, 1992, which was similarly served by mail. On the scheduled hearing date, appellant filed in open court another motion to dismiss for insufficiency of service of process, alleging that service was insufficient because the summons had not advised him of the exact date of the hearing and that he was not served personally, but by mail by appellee’s counsel. The court heard argument on the motion and denied it.

The scheduled hearing on the petition then took place. At the conclusion of the hearing, at the request of appellant’s attorney the court held the record open to permit the taking of appellant’s deposition. That deposition was, in fact, taken on December 17,1992, and is a part of the record in this case. On June 9,1993, the court entered an order terminating appellant’s parental rights.

1. Appellant contends the court erred in denying his July 15 and October 28 motions to dismiss on the grounds of insufficiency of process. Any error alleged in the July 15 motion was cured, however, when summons was issued and served personally upon appellant on August 5. We therefore address only those issues raised in the October 28 motion.

Appellant argues that the summons served upon him did not require him to appear before the court on a fixed date to answer the allegations of the petition, which was required by OCGA § 15-11-26 (a), made applicable to proceedings to terminate parental rights by OCGA § 15-11-91. He argues that notice of the specific time fixed for the final hearing was not received until a later date and that the summons was therefore insufficient. We do not agree.

OCGA § 15-11-26 appears in Article 1, Chapter 11 of Title 15 and governs petitions alleging delinquency, deprivation, or unruliness. See OCGA § 15-11-23. OCGA § 15-11-91 makes the provisions of Article 1 applicable to proceedings to terminate parental rights under Article 2, “unless in conflict with this article.” Precisely because proceedings to terminate parental rights are different from those alleging delinquency, deprivation, or unruliness, OCGA § 15-11-83 specifically sets forth the requirements for the petition and summons, and for service thereof, applicable to termination proceedings. Nowhere in OCGA § 15-11-83 is it required that the summons contain a fixed date. Its provisions, therefore, are “in conflict with” those in OCGA § 15-11-26 (a). Even assuming, therefore, that appellant has correctly construed OCGA § 15-11-26 (a), that Code section is not applicable to this termination proceeding.

Moreover, at the September 9 hearing, after the court heard appellant’s argument on his motion to dismiss and ruled it would allow the petitioner to amend her pleadings, appellant’s attorney acceded to the suggestion made by counsel for petitioner that in order to reschedule a hearing the parties would get together to agree upon several mutually convenient dates to offer the court. Therefore, even if we were to accept appellant’s contention that a specific, fixed date must be included in the summons, the parties waived that requirement.

The remaining issues appellant attempts to argue under this enumeration were not raised in appellant’s motions and therefore are not encompassed by his enumerations of error. They may not be considered for the first time on appeal. Woods v. Advanta Leasing Corp., 201 Ga. App. 844, 845 (2) (412 SE2d 607) (1991).

2. Appellant also maintains the court erred in denying his July 15 and October 28 motions to dismiss on the ground of insufficiency of service of process. Since the sheriff’s accomplishment of personal service upon appellant on August 5 cured the defects complained of in the July 15 motion, we address only the grounds urged in the October 28 motion. In that motion, appellant argued that service by mail by appellee’s attorney upon his attorney rather than him, was improper. We do not agree.

First, appellant may not now complain of that to which his attorney agreed. Appellant’s attorney agreed explicitly to accept service of the amended petition on appellant’s behalf.

Second, the pleadings included in the service complained of were amended pleadings. Based on objections appellant raised on the September 9 scheduled hearing date, appellee amended the petition and served it on counsel to appellee. A petition may be amended, of course, without leave of court. OCGA § 9-11-15 (a). Neither summons nor personal service is required when serving an amended petition or any pleadings subsequent to the initial complaint or petition. OCGA § 9-11-5 (a), (b). Although the summons served may have been unnecessary, service on appellant’s attorney by mail was completely proper. OCGA § 9-11-5 (b). Dotson v. Luxtron, Inc., 155 Ga. App. 504 (271 SE2d 644) (1980) and Abrams v. Abrams, 239 Ga. 866 (239 SE2d 33) (1977), cited by appellant, are inapplicable to these facts as both involve service of initial pleadings.

3. Appellant maintains the judgment is void because it fails to recite facts necessary to give it jurisdiction over the person and subject matter of this action. This enumeration is without merit.

Decided June 23, 1994.

Thomas H. Pittman, for appellant.

Solomon & Edgar, William J. Edgar, Charles E. Bagley, Jr., for appellee.

Appellant did not assert below and does not now assert that the court did not have jurisdiction over the parties or the subject matter. Instead, he bases his contention upon Lockhart v. Stancil, 258 Ga. 634 (373 SE2d 355) (1988), in which the Supreme Court held that if the order of a juvenile court does not recite the jurisdictional facts, the judgment is void. However, Lockhart involved a custody dispute, over which juvenile courts have concurrent jurisdiction with superior courts. They may decide such disputes only when the cases are properly transferred by the superior court. In Lockhart the record failed to show a proper transfer, nor did the orders recite facts showing the juvenile court’s jurisdiction.

This case is not a custody dispute but an action to terminate parental rights, over which the juvenile courts have exclusive subject matter jurisdiction except in conjunction with adoption proceedings. OCGA § 15-11-5 (a) (2) (C). The fact that it is an action for termination of parental rights appears in the order and is sufficient in itself to show the basis for subject matter jurisdiction.

The order also establishes personal jurisdiction and venue. It recites that when the petition was filed the child was in the custody of his mother, and that both mother and child were present in Bacon County. OCGA § 15-11-15 provides that venue lies in the county in which the child resides. Given that venue rights are waivable, see In the Interest of M. J. G., 203 Ga. App. 452, 454 (1) (416 SE2d 796) (1992), and that appellant did not raise any objection below to venue, this recital in the order was sufficient.

Judgment affirmed.

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


source: Caselaw Access Project

author: Smith, Judge.

license: Public Domain

text:
    A94A0227.
    VonLINSOWE v. THE STATE.
    (445 SE2d 371)
   Smith, Judge.

Kimberly L. VonLinsowe entered a conditional guilty plea pursuant to Mims v. State, 201 Ga. App. 277, 278-279 (1) (410 SE2d 824) (1991), to possession of marijuana with intent to distribute. She reserved for appeal the denial of her motion to suppress. We reverse.

The following evidence was presented at the motion hearing. A dispatcher with the Monroe County Sheriff’s Department received a telephone call from an unidentified person. The caller claimed to have seen drugs pass between two individuals in Gwinnett County. The caller described a vehicle used by one of the parties to the alleged exchange as an older model Chevrolet with a maroon fender, license plate number JZR 744, and stated there was reason to believe more drugs would be found in her car. The caller stated the vehicle left Gwinnett County at approximately 11:20 a.m. headed south on 1-75 toward Monroe County, and was being driven by a white female. The dispatcher ran the license plate number through the NCIC computer to determine the vehicle’s owner. Armed with this information, Sergeant Danny Purvis of the Monroe County Sheriff’s Department parked on 1-75 two to three miles north of the Forsyth, Georgia, exit to look out for the vehicle described by the caller.

The vehicle in question passed Purvis’s location at approximately 12:50 p.m. Purvis followed. The vehicle soon exited the interstate and proceeded to a shopping center parking lot. VonLinsowe parked and began walking toward a video store. At this time, Purvis approached her and asked for her driver’s license and insurance card. VonLinsowe complied, returning to her vehicle to retrieve her driver’s license. Soon thereafter, Purvis informed VonLinsowe that he was acting on a lookout from someone in another county and asked for consent to search her vehicle. VonLinsowe refused.

Purvis responded by informing VonLinsowe she would have to be detained while an investigator was called to the scene. The State concedes that at this point the encounter between Purvis and VonLinsowe advanced to a brief seizure that must be supported by reasonable suspicion under Terry v. Ohio, 392 U. S. 1 (88 SC 1868, 20 LE2d 889) (1968). It is the State’s position that VonLinsowe subsequently gave a valid consent to search her vehicle which resulted in the discovery of approximately four ounces of marijuana.

1. We must first determine whether the officers were authorized to detain VonLinsowe after she initially refused to allow Purvis to search her vehicle. The trial court correctly observed that anonymous tips, if sufficiently corroborated, can provide sufficient cause for a Terry stop. See, e.g., State v. Ball, 207 Ga. App. 729, 734 (429 SE2d 258) (1993). On this basis, the court held that the officers’ conduct, which included the continued detention of VonLinsowe after she refused to consent to the automobile search, “was justified in at least checking out to the best of their ability the information they received.”

We first note that the only information of criminal activity supporting the detention was an anonymous tip stating there was reason to believe that VonLinsowe had drugs in her vehicle. There is no suggestion in the record that the unknown informant’s information was inherently reliable.

“Of course, even if an officer cannot provide information regarding the veracity of an informant or the basis of his knowledge, a tip may be proved reliable enough to provide [reasonable suspicion of criminal activity] if portions of the tip are sufficiently corroborated. [Cit.] In order for the corroboration to be meaningful enough to show reliability, however, the information corroborated must include ‘a range of details relating not just to easily obtained facts and conditions existing at the time of the tip, but to future actions of third parties ordinarily not easily predicted.’ [Cit.] In short, the information corroborated will generally need to be a prediction of future behavior, as in [Illinois v. Gates, 462 U. S. 213 (103 SC 2317, 76 LE2d 527) (1983)], or something similar — that is, inside information not available to the general public. [Cits.]” State v. Bryant, 210 Ga. App. 319, 321 (436 SE2d 57) (1993). Although Bryant dealt with a probable cause standard, the underlying principle applies with equal force when the required standard is reasonable suspicion under Terry v. Ohio, supra. See Alabama v. White, 496 U. S. 325 (110 SC 2412, 110 LE2d 301) (1990); Johnson v. State, 197 Ga. App. 538 (398 SE2d 826) (1990).

Sergeant Purvis had corroborated no information not available to the general public at the time he informed VonLinsowe, a resident of Forsyth, Georgia, that she was being detained. VonLinsowe’s race, the description of her vehicle, her license number, etc., was information available to any member of the motoring public, as was the fact that she was heading toward Monroe County on Interstate 75 prior to the time Purvis spotted her. Moreover, although Purvis’s initial encounter with VonLinsowe was apparently consensual in nature, he received no additional information as a result of that contact which would constitute the articulable facts necessary to authorize further, non-consensual detention. While we do not find the initial encounter between Purvis and VonLinsowe to have been unlawful, Purvis lacked reasonable suspicion based on articulable facts to detain VonLinsowe based solely on an uncorroborated, anonymous tip. The trial court erred in failing to reach this initial determination. See generally Moreland v. State, 204 Ga. App. 218 (418 SE2d 788) (1992), and cases cited therein.

2. Although the inquiry necessarily begins with the determination of whether VonLinsowe was being unlawfully detained at the time she purportedly consented to the search of her vehicle, it does not end there. “[I]f the subsequent search was pursuant to a voluntary consent which was not a product of the illegal detention, the taint of that illegal detention would not require suppression of the evidence. [Cit.]” Miranda v. State, 189 Ga. App. 218, 221 (3) (375 SE2d 295) (1988). “However, in order to eliminate any taint from an involuntary seizure or arrest, there must be proof both that the consent was voluntary and that it was not the product of the illegal detention. Proof of a voluntary consent alone is not sufficient. The relevant factors include the temporal proximity of an illegal seizure and consent, intervening circumstances, and the purpose and flagrancy of the official misconduct. [Cits.]” Brown v. State, 188 Ga. App. 184, 187 (372 SE2d 514) (1988).

As previously stated, when VonLinsowe did not consent to the initial detention, Sergeant Purvis informed her that he would have to detain her while an investigator was called to the scene. Soon thereafter Investigator Mercer Bush, also with the Monroe County Sheriff’s Department, arrived at the parking lot. Bush asked whether VonLinsowe had refused to allow Sergeant Purvis to search her vehicle, and she replied affirmatively. Bush then told VonLinsowe that he had two options at that point and would follow whichever option she preferred. She could consent, in which case they would search her car as quickly as possible and try not to detain her any longer than necessary, or she could refuse, which would make it necessary for him to apply for a search warrant. Bush informed VonLinsowe that he did not know how long that would take, but that he would leave Sergeant Purvis with her while he obtained the warrant. According to VonLinsowe, she signed the consent form because “they made me feel like they were going to search the car one way or another and it didn’t matter if I consented or if I didn’t because they were going to search my car, and I had no other choice.”

The State offers nothing on this issue save for the conclusory statement that the consent was not a product of the illegal detention along with a citation to Rogers v. State, 206 Ga. App. 654 (426 SE2d 209) (1992), a case in which this court reversed the trial court’s denial of the defendant’s motion to suppress. Considering that Purvis responded to VonLinsowe’s initial refusal to consent by informing her that she would have to be detained, and also considering that Investigator Bush expressly invited her to consider her options in terms of how quickly or slowly she would be released from that detention, we cannot agree with the State’s unsupported conclusion.

The trial court erred in denying VonLinsowe’s motion to suppress evidence based on a consent which was tainted by VonLinsowe’s illegal detention. Brown, supra. The judgment is therefore reversed and the case remanded to allow VonLinsowe to withdraw her conditional guilty plea.

Decided June 23, 1994.

Michael A. Dillon, for appellant.

Tommy K. Floyd, District Attorney, Thomas R. McBerry, Assistant District Attorney, for appellee.

Judgment reversed and case remanded.

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

       We note that the Mims conditional guilty plea procedure is no longer allowed. Hooten v. State, 212 Ga. App. 770, 775 (1) (442 SE2d 836) (1994). The plea in the present case was entered prior to the effective date of our holding in Hooten.


text:
    A94A0411.
    EFFEL v. EFFEL.
    (445 SE2d 373)
   Smith, Judge.

This case appears before us for the second time. K. Leland Effel is the surviving partner in M. Effel Company, which sold parts to watchmakers. The partnership had been in the watch supply business for 30 years, and during that time K. Leland Effel and her late husband, Morris, accumulated quantities of gold scrap. Morris’s brother, Louis, agreed to take the gold to Texas to sell on Morris’s behalf. It is undisputed that much of the gold disappeared and was never recovered. K. Leland Effel brought suit for the value of the missing gold scrap against Henry Fred Effel, executor of the estate of Louis Effel. The trial court began hearing the case without the intervention of a jury, but ordered a jury trial to determine the value of the missing gold scrap.

The jury returned a verdict for K. Leland Effel in the amount of $113,263.49. Henry Effel’s motion for new trial was denied, and he appealed. Neither party requested that the trial of the case be transcribed, and the parties were unable to agree on a reconstructed transcript. In the first appearance of this case, Effel v. Effel, 207 Ga. App. 643 (428 SE2d 809) (1993), we remanded to the trial court for findings in lieu of a transcript under OCGA § 5-6-41 (g), (i).

The trial court entered a new order denying Henry Effel’s motion for new trial and stating that K. Leland Effel’s version of the reconstructed transcript was the more accurate. The trial court also found that K. Leland Effel was qualified and permitted to testify as an expert based on her 30 years in the gold and gold scrap business. She further testified as to the contents and quantity of the gold scrap which was to be loaded for transportation to Texas, and the trial court specifically found that there was no testimony offered disputing or contradicting her testimony.

1. Seven of Henry Effel’s nine enumerations of error attack the jury verdict. He complains that the verdict was contrary to the evidence, against the weight of the evidence, excessive, the product of gross mistake or bias, and an attempt by the jury to award punitive damages. There is no evidence on the record to support these contentions.

K. Leland Effel testified that the gold scrap weighed over 800 pounds. She also testified to the quantity and customary valuation by weight of three different types of gold scrap, concluding that the total value was between $114,000 and $115,000. She also testified that the sum of $736.51 was remitted to her on demand by her attorney.

“This court has no power to disturb a verdict in a civil action on the ground that it is contrary to the weight of the evidence but is limited to consideration of whether there is any evidence at all to support the verdict. [Cits.] [Appellee] presented expert testimony as to the market value . . . which testimony supported the jury’s verdict in this case.” Antique Center of Roswell v. City of Roswell, 196 Ga. App. 894, 895 (3) (397 SE2d 146) (1990).

2. Henry Effel contends that a receipt signed by K. Leland Effel for gold scrap “to be melted and assayed and price to be determined, but not less than $10,000.00” shows that the value of the scrap gold was approximately $10,000, and therefore the verdict was excessive. We disagree. Where the language of a contract is plain, unambiguous, and capable of only one reasonable interpretation, no construction is required or even permissible. Crooks v. Crim, 159 Ga. App. 745, 748 (285 SE2d 84) (1981). Giving the language of the receipt its plain and ordinary meaning, it explicitly states that the price of the gold scrap had not been determined and that $10,000 was a minimum amount rather than a stated value. This is consistent with the testimony of K. Leland Effel that the amount given on the receipt was not a statement of value. Nothing in the record as transmitted contradicts this testimony; Henry Effel did not present any testimony regarding the value of the gold.

3. Henry Effel complains that the trial court erred in its order ruling upon the reconstructed transcript. Where the parties are unable to agree on the accuracy of a reconstructed transcript, the decision of the trial judge is final and not subject to review. OCGA § 5-6-41 (g); King v. State, 195 Ga. App. 353 (1) (393 SE2d 709) (1990).

4. Finally, Henry Effel enumerates as error the qualification of K. Leland Effel as an expert in gold and gold scrap. However, as noted in Division 3 of this opinion, the decision of the trial court with regard to a reconstructed transcript is final, and the trial court specifically found that K. Leland Effel was qualified as an expert in this field. “It lies in the trial court’s sound discretion to decide whether a witness has such learning or experience in a particular art, science, or profession to be treated as an expert, or to be deemed prima facie an expert; the exercise of this discretion will not be disturbed unless manifestly abused.” (Citations and punctuation omitted.) Smith v. State, 210 Ga. App. 451, 452 (3) (436 SE2d 562) (1993). The evidence before us supports the trial court’s determination, and we find no manifest abuse of discretion.

Decided June 23, 1994.

Robert L. Littlefield, Jr., for appellant.

Charles W. Wrinkle, Bates & Baum, Stanley M. Baum, for appellee.

Judgment affirmed.

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


text:
    A94A0576.
    CANFIELD v. COOK COUNTY.
    (445 SE2d 375)
   Smith, Judge.

John Grant Canfield brought suit against Cook County, Georgia, seeking damages for personal injuries suffered in a motorcycle accident on a county road. The trial court granted Cook County’s motion to dismiss or in the alternative for summary judgment on the basis of sovereign immunity. Canfield appeals, and we affirm.

The 1990 amendment of Ga. Const. 1983, Art. I, Sec. II, Par. IX, extended sovereign immunity to all state departments and agencies, regardless of the existence of liability insurance. Donaldson v. Dept. of Transp., 262 Ga. 49, 50 (414 SE2d 638) (1992). The provisions of this paragraph apply to counties as subdivisions of the state. Toombs County v. O’Neal, 254 Ga. 390, 391 (1) (330 SE2d 95) (1985); Gilbert v. Richardson, 211 Ga. App. 795 (1) (440 SE2d 684) (1994). The 1990 amendment became applicable on January 1, 1991 to causes accruing after that date. Donaldson, supra; Parker v. Wynn, 211 Ga. App. 78 (438 SE2d 147) (1993). Canfield acknowledges that his motorcycle accident occurred after January 1, 1991.

Canfield cites no authority for his contention that waiver of sovereign immunity by the purchase of liability insurance should survive its removal from the constitution by the 1990 amendment. This contention is directly counter to the expressed intent in amending the constitution to remove the waiver provision and in enacting a state Tort Claims Act under the terms of that amendment. See Curtis v. Bd. of Regents, 262 Ga. 226, 227 (416 SE2d 510) (1992). The Georgia Tort Claims Act, OCGA § 50-21-20 et seq., declares “the state shall only be liable in tort actions within the limitations of this article and in accordance with the fair and uniform principles established in this article.” OCGA § 50-21-21 (a). The Act defines “State” specifically to exclude counties. OCGA § 50-21-22 (5). This action accordingly is barred by the doctrine of sovereign immunity.

Decided June 23, 1994.

Rodney L. Allen, for appellant.

Ellis & Easterlin, George M. Peagler, Jr., for appellee.

Canfield’s allegation of nuisance does not create a basis for liability. A county cannot be liable for a nuisance except in the context of a taking of private property for public purposes amounting to inverse condemnation. DeKalb County v. Orwig, 261 Ga. 137, 138 (1) (402 SE2d 513) (1991). Nor do Canfield’s constitutional claims have merit. “[T]he statutory bar of sovereign immunity to suit in tort is not a deprivation of property without just compensation, nor a denial of either equal protection or due process under the federal or state constitutions. [Cits.]” Robinson v. City of Decatur, 253 Ga. 779 (1) (325 SE2d 752) (1985), overruled on other grounds, Martin v. Ga. Dept. of Public Safety, 257 Ga. 300, 303, n. 1 (357 SE2d 569) (1987) (application of former Ga. Const. 1983, Art. I, Sec. II, Par. IX). “The legislature’s and the judiciary’s establishment of and adherence to the rule of sovereign immunity is not a ‘taking’ of property rights required to be compensated by Ga. Const. 1983, Art. I, Sec. Ill, Par. I. [Cit.] Where the sovereign has sovereign immunity from a cause of action, and has not waived that immunity, the immunity rises to a constitutional right and cannot be abrogated by any court. [Cit.]” Tyson v. Bd. of Regents, 212 Ga. App. 550 (442 SE2d 9) (1994).

Judgment affirmed.

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


text:
    A94A0596.
    WRIGHT v. THE STATE.
    (445 SE2d 377)
   Smith, Judge.

We granted Joe Wright’s application for leave to appeal from an order revoking his probation.

The record shows that Wright pled guilty to criminal damage to property in the second degree in December 1990. Pursuant to a negotiated plea, he received a three-year probated sentence and was ordered to make restitution of $600 and pay a monthly probation fee of $10. In June 1992, after a hearing on a petition brought by Wright’s probation officer, the court found he had violated technical terms of the probation. By order dated June 12, 1992 and entered on June 24, 1992, the court amended the terms of the original probation and ordered Wright remanded to the Southeast Probation Detention Center for an initial period of not less than 60 nor more than 120 days. The order provided that if his performance at the center was unsatisfactory he could be returned to the court for consideration of additional confinement, revocation of probation, or any other disposition. It also provided, however, that “[u]pon completion of said program the balance of the defendant’s probation is hereby suspended. The balance of the defendant’s fine is also suspended.” On November 9, 1992, the trial court entered an order nunc pro tunc June 12, 1992, amending Wright’s sentence by providing that upon completion of the program at the detention center, he “shall return to the regular probation with all of the conditions of the original sentence.”

Decided June 23, 1994.

Jackson & Schiavone, Mark E. Smith, for appellant.

Spencer Lawton, Jr., District Attorney, Kimberly D. Rowden, Assistant District Attorney, for appellee.

In March 1993, Wright’s probation officer again sought to revoke his probation and swore out a warrant for his arrest. Wright was arrested pursuant to the warrant, and a probation revocation hearing was held. His probation was revoked, and he was ordered to serve the remainder of his sentence in the State penal system.

In support of his contention that his probation was improperly revoked, Wright argues that the November 9 order was void because it increased his sentence after he had begun serving it. He argues that because the June 24 order unconditionally discharged him if he completed the program at the detention center, and he did so, he was then no longer on probation and it therefore could not be “revoked.”

Wright is correct in stating that once a defendant begins to serve his sentence, it may not be increased. Edge v. State, 194 Ga. App. 466, 467 (391 SE2d 18) (1990). However, the record contains no evidence that Wright had begun the program at the detention center when the November 9 order was entered. Moreover, the record does not show that he successfully completed the program. “ ‘Error must be shown affirmatively by the record, and not by mere recitations in a brief. (Cits.)’ [Cit.]” Rolling v. State, 204 Ga. App. 13 (1) (418 SE2d 396) (1992). We will not, therefore, assume error by the trial court in revoking Wright’s probation.

Judgment affirmed.

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


text:
    A94A0635.
    LAWRENCE v. NOLTIMIER.
    (445 SE2d 378)
   Smith, Judge.

Hazel Lawrence filed a personal injury action against Laurie Bonta Noltimier and another on October 21, 1992, for injuries sustained as the result of a traffic collision that occurred on October 22, 1990. The applicable statute of limitation is two years. OCGA § 9-3-33. Noltimier was not served until April 6, 1993, 166 days after the statute of limitation had expired. The trial court granted Noltimier’s motion for summary judgment (with supporting affidavit), which relied solely on the applicability of OCGA § 9-3-33, and Lawrence appeals.

“The mere filing of a petition is not the commencement of a suit unless timely service is perfected as required by law and the named defendant is duly brought into court; and the mere filing of a suit will not of itself toll the statute of limitations in a case. The principle of law controlling our decision in this case is well-settled: Where service is made after the expiration of the applicable statute of limitation, the timely filing of the complaint tolls the statute only if the plaintiff shows that [s]he acted in a reasonable and diligent manner in attempting to insure that a proper service was made as quickly as possible. A reasonable rule must be that in such case the trial judge should look at all the facts involved and ascertain whether the plaintiff was in any way guilty of laches. If [s]he were, of course [s]he would be barred, but if [s]he acted in a reasonably diligent manner then [s]he would not be. The determination of whether the plaintiff was guilty of laches in failing to exercise due diligence in perfecting service after the running of the statute of limitations is a matter within the trial court’s discretion and will not be disturbed on appeal absent abuse.” (Citations and punctuation omitted.) Freemon v. Dubroca, 177 Ga. App. 745, 746 (2) (341 SE2d 276) (1986).

The sole question before us is therefore whether the court’s discretion was “actually abused and cannot be supported as a matter of law. [Cit.]” Varricchio v. Johnson, 188 Ga. App. 144, 146 (372 SE2d 455) (1988). Lawrence has failed to make this showing. Although she emphasizes that Noltimier gave an incorrect address to police at the accident scene in October 1990, she admits she did not even initiate a search for Noltimier until after “the return of no service” over two years later.

Lawrence then hired an investigative agency, which she contends “conducted a wide ranging investigation throughout the Atlanta-Metro-area . . . over an extended period of time spanning November 2, 1992 through December 29, 1992,” when Noltimier was finally located. Although Lawrence has presented a thorough list of activities she instructed the search firm to undertake, she does not demonstrate as a matter of law that the search firm undertook those activities with due diligence. Lawrence’s counsel filed an affidavit claiming that there were eight days “especially” during this period when the search was actually conducted, but does not specify what activities were conducted on each of those dates. The mere fact that such a list was amassed proves nothing. “Due diligence requires action, not words,” Traver v. McKnight, 208 Ga. App. 278, 279 (430 SE2d 164) (1993), and a showing of diligence naturally requires specificity in making the required showing of the actions in fact undertaken to locate the missing defendant. Lawrence’s counsel states by affidavit what the firm was “directed” to do, then states that the firm conducted the search “as directed.” The affidavit of the firm’s principal, however, merely confirms that he canvassed the neighborhood and conducted an inquiry around Noltimier’s only known address, that he eventually discovered Noltimier’s address, and that the search spanned the period claimed by Lawrence.

Once Noltimier was located on December 29, 1992, Lawrence considered it necessary to transfer the case from DeKalb State Court to Fulton State Court since neither defendant lived in DeKalb County. She did not initiate this process until January 7,1993, a span of time which “in view of the intervention of the holiday period was not unreasonable,” according to Lawrence. A transfer order was entered in DeKalb State Court on February 3, 1993. The summons was not filed in Fulton State Court until March 3, 1993. Lawrence asserts that a second original was forwarded to the Sheriff of Cobb County, “who, for whatever reasons did not locate . . . Noltimier and serve her until April 6, 1993.”

Lawrence makes much of Noltimier’s alleged unclean hands, but this is not dispositive of the issue before us. Statutes of limitation are not solely for the benefit of those who assert them as a defense. They “ ‘find their justification in necessity and convenience rather than in logic. They represent expedients, rather than principles. They are practical and pragmatic devices to spare the courts from litigation of stale claims, and the citizen from being put to his defense after memories have faded, witnesses have died or disappeared, and evidence has been lost. (Cits.)’ ” (Emphasis supplied.) Canton Textile Mills v. Lathem, 253 Ga. 102, 105 (1) (317 SE2d 189) (1984).

Based on the record before us, we cannot say the court’s exercise of discretion here is unsupportable as a matter of law. Lawrence failed to initiate a search for Noltimier until after the statute of limitation had already run, has failed to present a record confirming the lack of significant periods of inactivity, and was admittedly inactive in early January during what she considered to be the “holiday season.” Assuming, without deciding, that Lawrence could do nothing more to ensure that Noltimier was served more quickly after the transfer proceedings were initiated, we nevertheless find no error.

Decided June 23, 1994.

J. L. Jordan, for appellant.

Fain, Major & Wiley, Thomas E. Brennan, for appellee.

Judgment affirmed.

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


text:
    A94A0668.
    In the Interest of J. L. W., a child.
    (445 SE2d 575)
   Smith, Judge.

J. L. W. was adjudicated delinquent by committing an act which, had it been committed by an adult, would have constituted one count of making terroristic threats, OCGA § 16-11-37 (a). The State presented evidence that J. L. W. was in the custody of the Clayton County Department of Family & Children Services in an adolescent girls’ group home when she made the threats against her houseparent. The houseparent testified that J. L. W. became extremely angry and “out of control” when the houseparent asked her about a letter she was writing, cursed her, forced her way into the staff office, blocked the houseparent’s exit from the room, and threatened to “kick [your] a — ” with the assistance of a girl friend who was a member of a notorious youth gang. J. L. W. admitted she told the houseparent about her friend in the gang. The houseparent began to call the police, and J. L. W. stated “well this is not a threat, this is a promise . . . when the police come, and you press charges, she said I’m going to make sure you go to court. And when you go to court, she said, I’m going to make sure I kill you. She says cause I’m going to kill you. She said I’m for real, I’m for real.”

1. J. L. W. first enumerates as error lack of the corroboration required by OCGA § 16-11-37 (a). “OCGA § 16-11-37 (a) provides that no person shall be convicted of committing the offense of a terroristic threat on the uncorroborated testimony of the party to whom the threat is communicated. ‘As in rape cases, the quantum of corroboration need not in itself be sufficient to convict, but need only be that amount of independent evidence which tends to prove that the incident occurred as alleged. Slight circumstances may be sufficient for corroboration and the question of corroboration is one solely for the jury. If there is any evidence of corroboration, this court will not go behind the jury verdict and pass on its probative value.’ . . . [Cits.]” Stone v. State, 210 Ga. App. 198, 199 (435 SE2d 527) (1993).

Construed most strongly against J. L. W., the evidence shows that the houseparent brought the threats to the attention of the group home director at a staff meeting the following day. The director testified that she discussed the matter with J. L. W. at the house meeting, which took place after the staff meeting, and took away J. L. W.’s privileges as “consequences for threatening Vicki.” J. L. W. at first denied making the threats, then repeated them word for word, albeit in the form of a question, and stated “well I ought to go ahead and get her a_ now, like I said I was gonna do.” Corroboration therefore was provided by J. L. W. herself. “While some contradictory evidence was presented, the credibility of the witnesses is for the judge’s determination, where the trial judge hears the case without intervention of a jury. There was sufficient evidence to support the juvenile court’s determination that [J. L. W. was] delinquent by reason of [her] acts.” (Citations and punctuation omitted.) In the Interest of W. C., 204 Ga. App. 204 (419 SE2d 540) (1992).

Decided June 23, 1994.

Melnick, Moore & Elliott, Larry M. Melnick, for appellant.

Robert E. Keller, District Attorney, Daniel J. Cahill, Jr., Assistant District Attorney, for appellee.

2. J. L. W. contends the State failed to carry its burden of proving her intent to terrorize her houseparent. However, “[d]irect evidence that the threats were made for the purpose of terrorizing another is not necessary if the circumstances surrounding the threats are sufficient for a jury to find the threats were made for such a purpose. [Cit.]” Boone v. State, 155 Ga. App. 937, 939 (2) (274 SE2d 49) (1980). There was evidence that J. L. W. was cursing, “out of control,” and talking about her friend in a violent youth gang. She pursued the houseparent into the staff office, kicked open the door, and blocked her exit from the room. Under these circumstances there was sufficient evidence to support a finding that the threats were made with the requisite criminal intent.

Judgment affirmed.

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


text:
    A94A0674.
    CAFAGNO v. HAGAN et al.
    (445 SE2d 380)
   Smith, Judge.

Linda and Albert Hagan filed a petition to adopt their granddaughter, alleging that the child’s natural parents had significantly failed without justifiable cause to provide for her care and support as required by law and judicial decree. OCGA § 19-8-10 (b) (2). The mother of the child, the Hagans’ daughter, surrendered her parental rights. The natural father, Tony Cafagno, who is divorced from the mother, filed an objection to the adoption. After a hearing, the trial court entered an order granting the adoption. When Cafagno’s motion for new trial was granted, the Hagans sought an evidentiary hearing and reconsideration of the order granting a new trial. After an evidentiary hearing, the court granted the Hagans’ motion for reconsideration and reinstated its original order granting the adoption. Cafagno appeals.

1. In the original order entered May 24, 1992, granting the petition for adoption, the trial court stated that in addition to the testimony presented at the hearing, it “gave consideration to” an “investigation report to the court provided for in OCGA § 19-8-16 and the recommendations contained therein.” In his motion for new trial, as amended, Cafagno contended the court erred in considering this report. He argued he had no notice that an investigation had been made, did not know the report would be used, and had no opportunity to rebut its conclusions and recommendations. The trial court granted Cafagno’s motion in order to ensure that Cafagno’s right to confront and examine the investigator was not violated.

An evidentiary hearing was held on September 28, 1992, at the Hagans’ request on the issue of Cafagno’s knowledge of the investigation and report. By order dated October 7, 1992, the trial court reinstated the May 24 order granting the adoption, ruling that Cafagno had actual and legal notice of the investigation and report and waived his right to access to the report by his inaction.

On appeal, Cafagno repeats the argument made below, contending the trial court erred in considering the report. We find no merit in this enumeration. We agree with the trial court that Cafagno had actual and legal notice of the investigation and that a report would be made to the court. We also agree with the trial court that Cafagno’s failure to request access to the report or to subpoena the investigator for examination at the hearing constituted a waiver of his rights to do so.

(a) At the evidentiary hearing held in response to the Hagans’ motion for reconsideration, the investigator testified she informed Cafagno explicitly that the investigation was being conducted and that a report would be made to the court. Although Cafagno testified otherwise, the trial court, as the trier of fact, resolved the conflict in the evidence by finding that the testimony of the investigator was more credible. The court was authorized to find that Cafagno had actual knowledge of the report because the investigator told him about it.

(b) The trial court also concluded that Cafagno had legal knowledge of the investigation and report because they are required under OCGA § 19-8-16 (a). Contrary to Cafagno’s argument that an investígation and report were not required because this was a relative adoption, not all relative adoptions are excepted from the report requirement. OCGA § 19-8-16 (b) provides an exception only in relative adoptions where surrender or termination of parental rights has been obtained. This adoption was not sought pursuant to a surrender of parental rights, but because petitioners alleged that Cafagno failed without justifiable cause to significantly provide for his daughter’s care and support for over one year. Therefore, the exception provided by OCGA § 19-8-16 (b) does not apply to this adoption, and an investigation and report were required under OCGA § 19-8-16 (a).

(c) Relying on McNabb v. Carver, 242 Ga. 526 (250 SE2d 447) (1978), Cafagno contends that even conceding he had knowledge of the investigation and report, such knowledge does not constitute waiver. In McNabb, the trial court based an award of child custody to the father on evidence presented at several hearings and on its review of reports of DFCS based on an evaluation to which all parties consented. On appeal, the mother contended she had been denied access to the report and her consent to the evaluation did not waive her right to exercise her rights with regard to the DFCS report. The Supreme Court agreed, holding that “in the absence of waiver, it was error for the issue of child custody to be decided on the basis of a report of the Department of Family & Children Services where the losing parent was denied access to that report.” (Emphasis supplied.) Id. at 528.

Nothing in McNabb conflicts with the trial court’s ruling in this case. It is clear that in McNabb the mother had sought access to the report, which was denied. Had that been the case here, we would not hesitate to agree that the trial court erred in basing its decision even in part on the report. It is undisputed, however, that the situation is different here. Cafagno was not denied access to the report; he never asked to see it. Despite knowing the identity of the investigator and having spoken with her, he did not subpoena her presence at the hearing in order to cross-examine her. Having had both actual and legal knowledge of both the investigation and the report, Cafagno had a duty to act if he wished to exercise his right to access. Because he failed to act despite his knowledge, the trial court correctly found these rights were waived.

2. Cafagno contends the trial court failed to comply in several technical respects with the requirements of OCGA § 19-8-18 (a) (1). That statute requires the court to hold a “full hearing” and examine the parties under oath. It also provides that the court “at such times shall give consideration to the investigation report to the court provided for in Code Section 19-8-16 and the recommendations contained therein.”

Cafagno argues that the court erred in failing to examine Albert Hagan under oath. The transcript shows that after Linda Hagan was called as a witness and testified on direct examination and on cross-examination, the Hagans’ counsel stated in his place that Albert Hagan’s testimony “would be duplicative.” He offered that Albert Hagan’s testimony would be exactly the same as that of his wife. The court allowed this proffer, and Cafagno did not object. “[Attorneys are officers of the court and their statements in their place, if not objected to, serve the same function as evidence.” (Citation, punctuation, and emphasis omitted.) Ga. Bldg. Svcs. v. Perry, 193 Ga. App. 288, 300 (6) (387 SE2d 898) (1989). Since Cafagno did not object, the trial court did not err by accepting counsel’s statement regarding Albert Hagan’s testimony in lieu of having Hagan testify.

Cafagno also asserts that the language of the statute requires the court to “consider” the investigative report during the hearing, and that the court did not do so in this case. However, even assuming Cafagno’s interpretation of the statute is correct, the record does not affirmatively indicate that the trial court failed to “consider” the report during the hearing. Although it is mandatory for the trial court to consider the report, it need not be read in detail. Ridgley v. Helms, 168 Ga. App. 435, 439 (3) (309 SE2d 375) (1983). There is no requirement that the report be entered into evidence. Hayes v. Watkins, 163 Ga. App. 589, 590 (3) (295 SE2d 556) (1982). The report was in the trial court’s possession and we cannot assume the court did not “consider” it during the hearing.

3. In his final enumeration of error, Cafagno contends the trial court erred in finding that he had failed without justifiable cause to significantly provide for his daughter’s care and support in the preceding 12-month period. Cafagno correctly notes that a natural parent’s rights may be terminated only under compelling circumstances found to exist by clear and convincing proof. “Requiring that the trial court find ‘clear and convincing evidence’ of a parent’s unfitness prior to terminating the parent’s rights in his child reflects the value society places on the ‘freedom of personal choice in matters of family life’ and the judgment society makes ‘about how the risk of error should be distributed between the litigants.’ [Cit.] ... It also reduces the ‘ “possible risk that a factfinder might decide to (deprive) an individual (of the rights to his child) based solely on a few isolated instances of unusual conduct (or) . . . idiosyncratic behavior.’” [Cits.]” Blackburn v. Blackburn, 249 Ga. 689, 693 (292 SE2d 821) (1982).

Cafagno admits his failure to pay child support required under his decree of divorce from the child’s mother during the 12 months preceding the filing of the adoption petition. He makes two arguments, however, that this failure did not support termination of his parental rights.

First, he maintains that he believed he was not required under the specific language of the divorce decree to pay child support. The decree provides that Cafagno’s child support payments to his former wife will continue until various conditions occur: “the child reaches the age of eighteen years, marries, enters the Armed Services, ceases to live with the wife, becomes self-supporting, or dies, whichever event shall first occur.” In October 1991, Cafagno entered into a consent order placing custody of the child with the Hagans, under which the child’s mother was to pay child support of $50 per week to her parents. The order also provided that “visitation rights and child support obligations of the father, Tony M. Cafagno, shall remain unmodified and unchanged as set forth in the final judgment and decree of divorce.” Cafagno argues that he kept up his visitation, but understood that because his daughter had ceased to live with his former wife and was living with the Hagans, under the terms of the decree he was not obligated to pay child support.

This belief, even if it existed, was not reasonable. “It is the joint and several duty of each parent to provide for the maintenance, protection, and education of his child until the child reaches the age of majority, except to the extent that the duty of one parent is otherwise or further defined by court order.” Former OCGA § 19-7-2. We agree with the trial court that the consent order “would not lead a reasonable person to conclude that he had no obligation to pay support” under the circumstances that existed after the consent order was entered, particularly when the evidence indicated that Cafagno’s former wife was also living with her parents and the child at least part of the time.

Second, relying on Crumb v. Gordon, 157 Ga. App. 839, 842 (2) (278 SE2d 725) (1981), Cafagno argues that even if his interpretation of the divorce decree does not provide a legal reason for failing to pay support, it provides a “reasonable excuse.” In Crumb, the mother of the child “waived” child support in a divorce decree, and the natural father “waived” visitation. Subsequently, the natural father sought unsuccessfully to modify the decree to provide for both visitation and child support. The mother’s current husband then filed an adoption petition, alleging that the natural father had not supported the child. The court denied the petition despite the natural father’s undisputed failure to support the child, reasoning that although child support is not waivable and the decree was therefore ineffective, the father’s reliance on the decree still provided a reasonable excuse (although not a legal one) for his failure to pay child support. Id. at 841-842.

Cafagno testified that the Hagans induced him to enter into the consent order by telling him they would be “lenient” with him regarding child support. He maintained they never asked for child support once the consent order was entered, but instead, as in Crumb, “entrapped” him into failing to pay support in order to supply grounds for terminating his parental rights.

Decided June 23, 1994.

Zachary & Segraves, Rick S. Sexton, for appellant.

Burkett, Schneider & Mumford, William Schneider, for appellees.

Even if believed, Cafagno’s testimony that the Hagans “sanctioned or encouraged his failure to pay the court-ordered child support would not establish a legal justification for his failure to comply with the court order. [Cits.]” Jessee v. Nash, 169 Ga. App. 746 (315 SE2d 260) (1984). Unlike the situation in Crumb, the evidence in this case does not demonstrate even a “reasonable excuse” for Cafagno’s failure to pay child support. Moreover, Cafagno’s contention is belied not only by the testimony of Linda Hagan, but by that of Cafagno himself and his mother.

Linda Hagan testified she had at least six discussions with Cafagno regarding his child support obligations, and provided him with statements on a quarterly basis showing child support and medical bill payments owed. She testified that in her conversations with Cafagno she asked him to pay the current court-ordered child support to her. According to Hagan, Cafagno never indicated that he had a different understanding or that he understood his obligation to be unclear.

Cafagno’s mother testified that at least one child support payment was, in fact, made to the Hagans after the consent order. This indicated that Cafagno knew he was obligated to make payments. In addition, although Cafagno denied Hagan had ever asked him for child support payments, Linda Hagan taped a conversation with Cafagno in which his child support arrearage was discussed. When confronted with this tape during cross-examination, Cafagno admitted he had discussed child support with Linda Hagan but had not made payments because he “wasn’t sure on which grounds [he] was supposed to pay child support.”

The evidence presented supplied clear and convincing proof that although Cafagno enjoyed visiting with and playing with his child on occasion, he knowingly failed to provide any support for her care and maintenance for a period of approximately 16 months despite being asked to do so. The trial court did not abuse its discretion in terminating Cafagno’s parental rights and granting the petition for adoption.

Judgment affirmed.

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


text:
    A94A0796.
    COTTINGHAM v. THE STATE.
    (445 SE2d 384)
   Smith, Judge.

This is the second appearance of this case. See Cottingham v. State, 206 Ga. App. 197 (424 SE2d 794) (1992) (“Cottingham I”). In its first appearance, we held that “a trial court’s use of a mechanical sentencing formula or policy as to any portion of a sentence amounts to a refusal to exercise its discretion and therefore is an abdication of judicial responsibility.” Cottingham I, supra at 199 (3). Finding that such a policy tainted Cottingham’s original sentencing in one respect, we remanded the case for a new determination of whether the 60-year sentence imposed in this case is to run consecutive to or concurrent with a sentence Cottingham was already serving in Alabama. On remand, the court again ruled that the sentence imposed was to run consecutive to the Alabama sentence. Cottingham appeals from the resentencing, contending that the trial court erred in taking into consideration Cottingham’s failure to testify at the resentencing hearing.

1. The resentencing hearing produced the following exchange:

“The Court: Does the defendant have anything he wants to say, ... or not? Defense counsel: No, sir. The Court: All right. . . . The Court: Of course, since the ruling of the appellate court in this case, I now don’t have a policy that I follow, except to listen to each case and try to decide the issue on each case. As I recall it, Mr. Cottingham did not testify during the trial in chief. Defense counsel: No sir. The Court: This court has not had the benefit of any statements made by Mr. Cottingham. It’s the sentence of this court that Mr. Cottingham’s sentences imposed by this court are to run consecutive to his sentence in Alabama.”

Cottingham contends the trial court inappropriately considered Cottingham’s exercise of a fundamental right. We disagree. The court did not comment on Cottingham’s failure to testify per se; rather, when fairly read, the comment was addressed to the absence of any expression of remorse by Cottingham at any time, whether sworn or unsworn. The absence of any verbal expression of remorse is a legitimate consideration at sentencing from which lack of remorse can be inferred. High v. Zant, 250 Ga. 693, 701 (14) (300 SE2d 654) (1983). We note that just prior to the exchange complained of the State argued that Cottingham had a lengthy criminal history and had demonstrated “a lack of inclination to live by society’s rules.” Nevertheless, the court expressed an interest in hearing anything Cottingham might have to say on his behalf, and refrained from making its final ruling until it became clear that no statement of remorse by Cottingham was forthcoming. We find no error.

2. We do not address Cottingham’s remaining enumeration, which essentially asks this court again to reconsider holdings adverse to him in Cottingham I.

Decided June 23, 1994.

Herbert E. Franklin, Jr., for appellant.

Ralph L. Van Pelt, Jr., District Attorney, for appellee.

Judgment affirmed.

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


text:
    A94A0815.
    MORELAND v. THE STATE.
    (445 SE2d 388)
    Decided June 23, 1994.

      Word & Flinn, Candace E. Rader, for appellant.

      Peter J. Skandalakis, District Attorney, Jeffrey W. Hunt, Assis

      tant District Attorney, for appellee.
   Smith, Judge.

Shalom Moreland was convicted of one count of selling cocaine in violation of the Georgia Controlled Substances Act, OCGA § 16-13-30. His motion for new trial was denied and he appeals, enumerating the general grounds.

Moreland was positively identified by the officer to whom he sold cocaine. The officer testified that he knew Moreland, but previously had been introduced to him as “Shalome Moton.” At the time of the sale the officer was standing “within arm’s reach” of Moreland in adequate lighting, had a good opportunity to observe him, and was “a hundred percent positive” that Moreland sold him the cocaine. He also was at the jail when Moreland was arrested, and he again recognized Moreland. Moreland testified that he was at work at the time of the cocaine sale, but the State produced the personnel director of his purported employer, who testified that Moreland had been terminated from that employment over one year before the date of the sale.

“ ‘The direct testimony of the officer was sufficient to meet the standard of proof required by Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).’ [Cit.]” Lawson v. State, 198 Ga. App. 594 (1) (402 SE2d 344) (1991). Moreland contends the officer’s identification was suspect because of the variation in Moreland’s name as known to the officer, the vague description of Moreland given by the officer in his report, and the large number of drug purchases the officer had investigated in Carroll County. These matters were fully explored in cross-examination. At most, they raise issues of credibility and weight of evidence for the jury to decide. Evans v. State, 207 Ga. App. 358, 359 (1) (427 SE2d 837) (1993).

Judgment affirmed.

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


author: Pope, Chief Judge.

text:
    A94A0903.
    CUBA et al. v. HUDSON & MARSHALL, INC. et al.
    (445 SE2d 386)
   Pope, Chief Judge.

Defendants are auctioneers who conducted an auction of real estate for the Resolution Trust Corporation (“RTC”). Plaintiffs attended the auction and were the high bidder for a particular parcel, Property No. 230. After the bidding was ended by the fall of the auctioneer’s hammer, however, plaintiffs were told that the RTC rejected their bid. Plaintiffs sued defendants for damages, and after discovery, plaintiffs and defendants filed cross-motions for summary judgment. The trial court denied plaintiffs’ motion and granted defendants’, and plaintiffs appeal from both rulings.

The parties essentially agree on the facts. Defendants prepared an auction brochure listing and describing the various RTC properties to be auctioned. Some of the properties were listed with the word “absolute” next to them; others, including Property No. 230, were not. On the back cover, under the heading “AUCTION INFORMATION & TERMS,” the brochure stated that properties without “absolute” next to them were being sold with reserve, and that “[f]or property being sold ‘With Reserve,’ the highest bid is subject to the approval of the seller.” (Emphasis supplied.) Defendant Asa Marshall, who conducted the actual auction, stated in his introductory remarks that with respect to those properties being auctioned with reserve, “I can assure you you’re not wasting your time. We have officials from RTC all over the country here. The only thing they want to make sure of is that they do have active bidding on those properties auctioned on reserve, and if they do they are going to sell them. I can assure you of that. They are not here to waste your time or to get this property appraised.” Immediately following Asa Marshall’s introductory remarks, however, another employee of defendant Hudson & Marshall, Inc. got up and pointed out to the audience that the terms of the auction were set forth on the back cover of the brochure. He held up a brochure and showed the audience exactly where the terms and conditions were and then said they would abide by those terms.

1. Plaintiffs first argue that a contract for the sale of Property No. 230 was formed at the time the auctioneer’s hammer fell, and that defendant auctioneers are liable for the breach of that contract. As a general rule, even if an auction is with reserve (and all auctions are presumed to be with reserve unless they are expressly stated to be without reserve), the seller must exercise his right to withdraw the property from sale before the auctioneer accepts the high bid by letting his hammer fall; immediately after the hammer falls, an irrevocable contract is formed. See Stanley v. Whitmire, 233 Ga. 675 (212 SE2d 845) (1975); Tillman v. Dunman, 114 Ga. 406, 409 (1) (40 SE 244) (1901); Coleman v. Duncan, 540 SW2d 935, 937-938 (Mo. Ct. App. 1976). Compare also OCGA § 11-2-328. Yet at the same time, the seller has the right to establish any terms and conditions for the sale he wishes, and where the seller explicitly reserves the right to reject any bid made, the contract for sale is not formed until the seller actually accepts the bid. Rountree v. Todd, 210 Ga. 226 (78 SE2d 499) (1953). We think the only way to reconcile these cases is to recognize, as other courts have, that there is a distinction between auctions which are merely conducted with reserve and those in which the seller explicitly reserves the right to approve, confirm or reject the high bid. Coleman, 540 SW2d at 938. (“[S]uch a reservation sets a sale apart from the garden variety of auctions with reserve.”) See also Continental Can Co. v. Commercial Waterway Dist., 347 P2d 887 (Wash. 1959); Moore v. Berry, 288 SW2d 465 (Tenn. App. 1955); New York v. Union News Co., 118 NE 635 (N.Y. 1917). Where the seller explicitly reserves the right to reject or approve, the auctioneer is without authority to accept for the seller. Thus, the fall of the hammer in such auctions merely ends the bidding, and no contract is formed until the seller actually accepts the high bid. See Continental Can, 347 P2d at 888-889; Moore, 288 SW2d at 467-468; Union News, 118 NE at 636-637.

The seller in this case explicitly reserved the right to reject or approve the high bid in the brochure. And Asa Marshall’s “assurance” that all properties would be sold as long as the bidding was active did not modify this reservation since it was immediately followed by the announcement of another speaker who called the bidders’ attention to the terms in the brochure and stated that “we will abide by those terms.” Accordingly, the fall of the auctioneer’s hammer merely ended the bidding and no enforceable contract was formed.

Additionally, we note that even if there were an enforceable contract for the sale of Property No. 230, plaintiffs’ remedy would be against RTC; defendants as agents of a disclosed principal would not be liable for the principal’s breach of contract. See OCGA §§ 10-6-53; 10-6-87. Plaintiffs’ attempt to create a question of fact regarding disclosure by stating that Malibu Savings Bank is the true owner of the property fails, as it is clear that RTC controlled the disposition of the property and it cannot be disputed that RTC’s role was disclosed.

Decided June 23, 1994.

Clifford J. Steele, Anthony A. D’Aurio, for appellants.

Westmoreland, Patterson & Moseley, Stewart R. Brown, for appellees.

2. Plaintiffs further contend that if no contract was formed because defendant auctioneers were unauthorized to accept plaintiffs’ bid by letting the hammer fall without RTC approval, defendants are liable because they exceeded the scope of their authority. However, this contention presupposes that the falling of the hammer at an auction necessarily forms a contract, and we have held above that it does not where the seller has conditioned the sale on its own acceptance of the high bid.

Nor is there merit in plaintiffs’ position that defendants breached their warranty of authority to sell. See Weinstein v. Rothberg, 87 Ga. App. 94 (73 SE2d 106) (1952). Although the auctioneer is presumed to have authority to accept the high bid on behalf of the seller if the property is not withdrawn before the hammer falls, that presumption may be rebutted by the seller’s express reservation of the right to approve the high bid itself. Cf. Coleman, 540 SW2d at 937. In this case, the written terms and conditions in the brochure (and the post-assurance announcement calling attention to those terms and conditions) rebutted the presumption that defendant auctioneers had authority to accept a bid and form a binding contract without the seller’s approval. It follows that there was no warranty of authority to sell on the part of defendant auctioneers; and thus there could be no breach of such a warranty.

Judgment affirmed.

McMurray, P. J., and Smith, J., concur.

       This statute is part of our codification of Article 2 of the Uniform Commercial Code and thus does not directly apply to auctions of real property. See OCGA § 11-2-102. Courts in other states have recognized that this portion of the Article reflects common law principles applicable to land auctions as well as auctions of goods, however, and have borrowed rules from it or applied it to land auctions by analogy. See, e.g., Chevalier v. Sanford, 475 A2d 1148 (Me. 1984); Hoffman v. Horton, 186 SE2d 79 (Va. 1972).


author: Beasley, Presiding Judge.

text:
    A94A0524.
    NELSON v. THE STATE.
    (445 SE2d 543)
   Beasley, Presiding Judge.

Nelson was convicted of voluntary manslaughter, OCGA § 16-5-2 (a), and denied a new trial.

1. He contends that the evidence was insufficient to support his conviction because it clearly showed that he was justified in firing the fatal shot to defend himself, his wife, and his property.

The evidence construed in favor of the verdict showed that at about 1:30 a.m., Nelson’s wife and Nelson, a 45-year-old shopping mall security guard, were traveling in their car down a street in Macon on which were located a number of bars. Nelson had to stop because two apparently intoxicated young men, 19-year-old Morris and 16-year-old Carr, were wrestling in the street. Nelson blew the car horn and told them to get out of the way. Morris and Carr assumed “an attitude” and began to pound on Nelson’s car. Heated words were exchanged.

Nelson exited his car and the two young men ran behind the corner of a building in an alley. As Nelson got back into his car and attempted to pull away, Morris and Carr returned and started jumping on and kicking the car; Morris reached in through the open car window and slapped Nelson. The Nelsons could not leave because the road was blocked. Nelson retrieved his .32 caliber handgun and the two youths ran down an alley. Nelson’s wife yelled at her husband, “No. Stop. Don’t shoot.” Nelson “kind of jogged” to the entrance of the dark alley, aimed and fired a round and then aimed and fired a second shot. Carr, whose blood alcohol was .23 percent, was fatally wounded in the back.

“ ‘ “A person commits the offense of voluntary manslaughter when he causes the death of another human being, under circumstances which would otherwise be murder, and if he acts solely as the result of a sudden, violent, and irresistible passion resulting from serious provocation sufficient to excite such passion in a reasonable person; . . . .” [OCGA § 16-5-2.] “When a homicide is neither justifiable nor malicious, it is manslaughter, and if intentional, it is voluntary manslaughter.” [Cit.]’ [Cit.]” Borders v. State, 201 Ga. App. 754, 755 (412 SE2d 284) (1991).

The resolution of whether or not Nelson was acting in the heat of passion or with justification depended largely on the credibility of the witnesses, which was for the jury to assess. Harris v. State, 183 Ga. App. 219, 220 (1) (358 SE2d 634) (1987). The evidence was sufficient to enable the jury as rational trier of fact to find Nelson guilty of voluntary manslaughter beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. Nelson contends that the trial court erred in refusing to give his request to charge #14, which he characterizes as a restatement of OCGA § 16-3-20 (6). The request also tracks the language of subsection (5) of the statute, but the failure to give that portion of it is not embraced within the enumeration and is not considered.

Realizing that justice might need wider berth than the legislature could articulate prospectively, it included subsection (6). This allows the defense of justification in circumstances unparticularized by the legislature but instead left to the jury, with the limitation that it be of the same quality as the enumerated instances. That is, the instance must stand on “the same footing of reason and justice” as those described. The trial court rejected the charge as duplicative of the specific charges, but it is not. See Wells v. State, 200 Ga. App. 104, 107 (407 SE2d 86) (1991), Andrews, J., concurring specially. As stated there, “[w]hether conduct is justified by fitting within the criteria of subsections (1) through (5), or whether it stands upon the same footing as these defenses is necessarily dictated by the facts of each case.”

When an entire charge fairly presents the issues to the jury, including the defendant’s theory of the case, the trial court need not also charge specifically the defense of “justification” as stated in OCGA § 16-3-20. Mallory v. State, 166 Ga. App. 812, 814 (3) (305 SE2d 656) (1983). However, this was not the situation here.

Nelson’s defense was self-defense, defense of his wife, and defense of his property (car), in a broad sense. That is, it was not defense from attack while in the very midst of a physical confrontation, as is classically the case, but rather it was an effort to prevent further and possibly more violent attack, which a jury could find he had reason to fear because of the youths’ escalating violent behavior. Thus, even though the trial court charged the jury on justification in the specific context of defense of self or a third person as provided in OCGA § 16-3-21 (a) and defense of property as provided in OCGA § 16-3-24, such instruction alone failed to fairly present to the jury the law on Nelson’s theory of the case and his defense of justification. See Tarvestad v. State, 261 Ga. 605, 606 (409 SE2d 513) (1991). The trial court erred in failing to charge justification under OCGA § 16-3-20 (6).

3. Nelson also enumerates as error the failure to charge the jury that the State had the burden of proving the absence of the elements of his justification defense.

No exception was taken to the charge and no reservation of right was made to later object. See Griffith v. State, 169 Ga. App. 957 (315 SE2d 490) (1984). However, we must consider a substantial error in a jury charge which is harmful as a matter of law, regardless of whether or not objection was made below. OCGA § 5-5-24 (c). The omission here qualifies.

The court’s charge informed the jury about the presumption of defendant’s innocence, the State’s burden to prove every material allegation of the indictment and every element of the crime charged beyond a reasonable doubt, and that the burden never shifted to the defendant to prove his innocence. As in Anderson v. State, 262 Ga. 7, 10 (2) (413 SE2d 722) (1992): “Nowhere in the charge was the jury informed that when the affirmative defense of justification is raised by a defendant, the state has the burden of proving the absence of the elements of that affirmative defense; nor was the jury told that if they believed the defendant to have been justified, it would be their duty to acquit him.”

Decided June 3, 1994

Reconsideration denied June 24, 1994

L. Elizabeth Lane, for appellant.

Charles H. Weston, District Attorney, Thomas J. Matthews, Assistant District Attorney, for appellee.

Such critical omissions could lead the jury to conclude that it was the defendant’s obligation to prove his justification for the shooting; they constituted an impermissible shifting of the burden. Griffith, supra. It is not plain from the charge as a whole that if the jury determined the shooting to be legally justified, it had to acquit. Compare Hill v. State, 205 Ga. App. 475, 476 (3) (422 SE2d 564) (1992).

Nelson’s conviction must be reversed and a new trial afforded.

Judgment reversed.

Andrews and Johnson, JJ., concur.


text:
    A94A0644, A94A0645.
    ALLEN et al. v. ReMAX NORTH ATLANTA, INC. et al., and vice versa.
    (445 SE2d 774)
   Beasley, Presiding Judge.

Deryle and Lee Allen sued ReMax and its sales associates David Rast and Nancy Sachs seeking damages for fraud, simple and professional negligence, and violation of the Fair Business Practices Act (FBPA). OCGA § 10-1-390 et seq. In Case No. A94A0644, plaintiffs appeal the grant of defendants’ motion for summary judgment as to plaintiffs’ fraud, professional negligence, and FBPA claims. In Case No. A94A0645, defendants appeal the denial of their motion for summary judgment as to plaintiffs’ simple negligence claim.

Plaintiffs, Florida residents, began looking for a home in the Atlanta area. After they were referred to ReMax, Sachs contacted them and sent a relocation kit containing information about ReMax and its sales agents. As a result, plaintiffs agreed to allow defendants to assist them in finding a house.

After traveling to Atlanta, plaintiffs became interested in a house at 104 Oakland Hills Court in St. Ives Subdivision. This house backs up to Medlock Bridge Road approximately one-half mile north of State Bridge Road. Medlock Bridge Road had been widened up to the State Bridge Road intersection, but construction activity had stopped there. At the request of plaintiffs, Sachs agreed to ascertain whether there were any plans to widen Medlock Bridge Road north of the intersection. Deryle Allen, who is a licensed real estate agent, asked Sachs to inquire of the appropriate highway authority, which is the Georgia Department of Transportation, and not to rely upon statements made by personnel at the subdivision sales office. Sachs reported to plaintiffs that she had made the requested inquiry and assured them that there were no plans to widen the road behind St. Ives. She did not reveal that she obtained this information from the subdivision sales office and not from the DOT.

At the request of Deryle Allen, Rast provided her with a computer-generated list containing sales information concerning comparable houses in St. Ives Subdivision, which list was used by plaintiffs in making an offer on the house. As part of his methodology, he omitted from the list any house having a price 15 to 20 percent above or below that of the list price of the subject house.

Plaintiffs contracted to purchase this house from the owners. Before signing the contract, the Allens received a copy of it, reviewed, read, discussed, and understood it. The contract identifies Harry Norman Realtors as the listing broker, ReMax as the selling broker, and Rast and Sachs as the selling broker’s associated salespersons.

It contains an agency disclosure which provides, “Unless otherwise stated, the Broker has acted as agent for the Seller in this transaction and is to be paid a commission by Seller; neither Listing Broker nor Selling Broker has acted as agent for the Purchaser in this transaction.” The contract also contains a disclaimer stating, “Seller and Purchaser acknowledge that they have not relied upon the advice or representations, if any, of Broker or Broker’s Associated Salespersons relative . . . the purchase and ownership of the Property. . . . Seller and Purchaser acknowledge that if such matters have been of concern to them, they have sought and obtained independent advice relative thereto.”

Following closing, Medlock Bridge Road was widened so it came closer to the house. Traffic increased and became noisier and more visible. The Allens discovered that information concerning this widening was maintained by DOT and was available to the public at the time they asked Sachs to obtain it. Also, a list from another Atlanta real estate agent showed that there were comparable houses lower in price than the one the Allens bought which Rast had omitted from the list of comparable sales he submitted.

In Count 1 of their complaint, plaintiffs alleged that by providing distorted information concerning comparable houses and erroneous information concerning road widening, defendants committed fraud. In Count 2, they alleged negligent or intentional breach of a duty undertaken by defendants to perform services for plaintiffs.

Defendants answered and asserted various defenses, including failure of the complaint to comply with the requirements of OCGA § 9-11-9.1, for which they sought a dismissal. They moved for summary judgment on plaintiffs’ fraud claim.

Plaintiffs then added Counts 4 and 5, alleging that defendants employed deceptive practices in violation of the FBPA and that defendants rendered negligent professional services. In support of Count 5, they attached an expert affidavit.

The trial court granted defendants’ motion for summary judgment on plaintiffs’ fraud claim. Defendants then moved for summary judgment on plaintiffs’ remaining claims, which the court granted except as to the simple negligence claim.

1. Summary judgment on plaintiffs’ fraud claim was proper.

“One of the essential elements of an action for fraud is ‘justifiable reliance by the plaintiff.’ [Cit.]” Condios, Inc. v. Driver, 145 Ga. App. 537, 538 (1) (244 SE2d 85) (1978). The record shows without dispute that plaintiffs were aware that defendants were agents of the seller and that they were not in a fiduciary relationship with plaintiffs. This was stated in the sales contract. Plaintiffs have shown no basis for rescinding. See generally Chip Kassinger, Inc. v. Steimer, 205 Ga. App. 349, 350 (1) (422 SE2d 241) (1992). It is true that one may justifiably rely upon representations of even those who are not in fiduciary relationships with them, Hill v. Century 21 Max Stancil Realty, 187 Ga. App. 754, 755 (2) (371 SE2d 217) (1988); see Stelts v. Epperson, 201 Ga. App. 405 (411 SE2d 281) (1991). Nevertheless, the sales contract also contained a disclaimer stating that the purchaser had not relied upon the advice or representations by the broker or its associated salespersons relative to, among other things, the purchase and ownership of the property.

The information provided by defendants to plaintiffs concerning road widening and comparable housing sales undeniably fits this category. It thus was covered by this general term in the disclaimer, although not by more particular terms contained in it. Compare Mayor &c. of Savannah v. Savannah Elec. &c. Co., 205 Ga. 429, 437 (54 SE2d 260) (1949). Under these circumstances, plaintiffs cannot, as a matter of law, establish the element of justifiable reliance on defendants’ advice and representations. Copeland v. Home Savings of America, F. A., 209 Ga. App. 173 (433 SE2d 327) (1993); see also Brakebill v. Hicks, 259 Ga. 849 (388 SE2d 695) (1990); Hill, supra; compare Harrison v. Harrison, 214 Ga. 393 (1) (105 SE2d 214) (1958); Wiederhold v. Smith, 203 Ga. App. 877, 879 (2) (418 SE2d 141) (1992); Stelts, supra; Bowdish v. Johns Creek Assoc., 200 Ga. App. 93, 95 (4) (406 SE2d 502) (1991).

2. Dismissal of plaintiffs’ professional negligence claim was demanded.

Real estate brokers and salespersons must be licensed pursuant to OCGA § 43-40-1 et seq., and thus are “professionals” within the intent of OCGA § 9-11-9.1. Hodo v. Gen. Hosp. of Humana, 211 Ga. App. 6, 8 (2) (438 SE2d 378) (1993). “Where the failure to do a thing, or the negligent doing of it, is proved by reliance upon a general standard of care or by rules of procedure used by others competently performing the same service, it is a ‘professional’ act or practice. [Cit.] Wherever it is ‘necessary to establish the parameters of acceptable professional conduct’ ([cit.]) in order to prove negligence or breach for failure to perform in a workmanlike manner, the case must be deemed a professional malpractice case.” (Emphasis in original.) Razete v. Preferred Research, 197 Ga. App. 69, 70 (397 SE2d 489) (1990).

Judged by these criteria, plaintiffs’ claim against defendants for negligence in compiling the list of comparable sales is one for professional and not simple negligence. What to include and what to exclude requires the exercise of professional judgment. Consequently, plaintiffs’ failure to file an expert affidavit contemporaneously with the complaint was fatal to plaintiffs’ claim of professional malpractice. Smith v. North Fulton Med. Center, 200 Ga. App. 464, 466 (2) (408 SE2d 468) (1991). Although the trial court should have dismissed this claim rather than granted summary judgment on it, we treat the merits of the appeal as if the court had dismissed it. Hodo, supra at 8.

3. The court erred in denying defendants’ motion for summary judgment on plaintiffs’ simple negligence claim. It asserts that Sachs’ failure to procure information regarding road-widening plans is a claim for simple negligence. According to plaintiffs’ evidence, they asked Sachs to perform essentially a ministerial act, i.e., ask the appropriate highway authority rather than the subdivision sales office personnel whether there were plans to widen the road. See Shaw v. Fillman, 184 Ga. App. 364 (1) (361 SE2d 518) (1987). Failure to do this would constitute simple negligence. See Razete, supra.

However, plaintiffs’ simple negligence claim is ultimately predicated on the theory that although defendants were the sellers’ agents, they became plaintiffs’ voluntary or gratuitous agents for the limited purpose of providing information to plaintiffs concerning the road widening. Simmerson v. Blanks, 149 Ga. App. 478, 479 (2) (254 SE2d 716) (1979); see also Shaw, supra. Recovery under this theory also requires reasonable reliance upon the service rendered. Simmerson, supra; see also Robert & Co. Assoc. v. Rhodes-Haverty Partnership, 250 Ga. 680 (300 SE2d 503) (1983); Shaw, supra. Plaintiffs’ simple negligence claim is barred for the same reason their fraud claim is barred.

4. The court did not err in granting summary judgment to defendants on plaintiffs’ FBPA claim.

The Fair Business Practices Act incorporates the “reliance” element of the common law tort of misrepresentation into the causation element of a FBPA claim. Zeeman v. Black, 156 Ga. App. 82, 87 (273 SE2d 910) (1980). Consequently, justifiable reliance is an essential element. Condon v. Kunse, 208 Ga. App. 856, 859 (5) (432 SE2d 266) (1993). For this reason, plaintiffs’ FBPA claim is barred.

Decided June 10, 1994

Reconsideration denied June 24, 1994

Grizzard, Simons, Martin & Wills, Warren W. Wills, Jr., Kyle D. Sherman, for appellants.

Dermer & Black, Richard W. Brown, for appellees.

Judgment affirmed in Case No. A94A0644. Judgment reversed in Case No. A94A0645.

Andrews and Johnson, JJ., concur.


author: Birdsong, Presiding Judge.

text:
    A94A0582.
    HANNA et al. v. McWILLIAMS et al.
    (446 SE2d 741)
   Birdsong, Presiding Judge.

Appellants Joseph and Annastasia Hanna brought suit for damages to real and personal property against appellees Steve J. McWilliams d/b/a McTee & Associates (McWilliams) and Ace Fireplace Sales, Inc. (Ace). The trial court granted summary judgment to appellees on the grounds that appellants’ claims for damages, averred to have arisen out of negligent construction, were barred by applicable statutes of limitation.

On June 13, 1992, appellants’ house caught on fire and certain real and personal property was destroyed. Appellants contend the fire was caused by a latent fireplace defect, specifically, a defective chimney liner concealed by the brick fireplace chimney. McWilliams was the general contractor. Ace, a subcontractor, sold the fireplace to McWilliams as “installed”; it was installed by another subcontractor on or about March 19, 1984. On April 17,1984, Ace billed the fireplace as complete to McWilliams. According to McWilliams’ affidavit, the house was substantially completed on or before July 31, 1984; appellants contend the house was substantially completed no earlier than August 14, 1984, when certificate of occupancy was issued. Appellants took possession of the house on October 5, 1984. On August 7, 1992, appellants filed suit averring negligent construction. Appellees moved for summary judgment on the grounds suit was barred by statutes of limitation; the trial court granted the motions. Appellants appeal asserting that the discovery of defect rule should apply both as to their claims of damage to personalty and as to their claims of damage to realty in determining when the statutes of limitation commenced to run. Appellees contend the discovery rule does not apply and that suit also was barred by a statute of repose. Held:

1. In Georgia all actions for trespass upon or damage to realty shall be brought within four years after the right of action accrues (OCGA § 9-3-30); likewise, actions for injuries to personalty shall be brought within four years after the right of action accrues (OCGA § 9-3-31). OCGA §§ 9-3-30 and 9-3-31 are statutes of limitation. Further, OCGA § 9-3-51 contains an eight-year statute of repose pertaining to actions therein specified. OCGA § 9-3-51 (a).

2. Suit for damages to realty was barred by OCGA § 9-3-30 but suit for damages to personalty was not barred by OCGA § 9-3-31.

(a) We reject appellants’ contention that the discovery rule delays the accrual of his right of action for damages to realty until June 13, 1992. In Corp. of Mercer Univ. v. Nat. Gypsum Co., 258 Ga. 365 (368 SE2d 732) (hereinafter Mercer), a case involving only property damage and no statute of repose issue, the Supreme Court overruled its adoption of the discovery rule in Lumbermen’s &c. Co. v. Pattillo &c. Co., 254 Ga. 461 (330 SE2d 344) and limited the scope of applicability of said rule; the court held: “The plurality opinion in [Lumbermen’s] extended the discovery rule to property damage involved in that case. . . . Today, we expressly adopt the dissent written by Justice Weltner, and hold that ‘the discovery rule of King v. Seitzingers, Inc., 160 Ga. App. 318 (287 SE2d 252) (1981) (is confined) to cases of bodily injury which develop only over an extended period of time.’ [Cit.] To the extent anything in Lumbermen’s is in conflict with this opinion, it is overruled. An action under OCGA § 9-3-30 must be brought within four years of substantial completion.” (Emphasis supplied.) Mercer, supra at 366 (1); accord Broadfoot v. C & S Nat. Bank, 208 Ga. App. 382, 384 (430 SE2d 638); Broadfoot v. Aaron Rents, 195 Ga. App. 297, 300 (2) (393 SE2d 39), aff'd in part and rev’d in part on other grounds, 260 Ga. 836 (401 SE2d 257). The Supreme Court also expressly limited the continuing tort theory stating: “It is not applicable to cases which involve only property damage.” Mercer, supra at 366 (2).

In Griffin v. Kangaroo, Inc., 208 Ga. App. 190 (430 SE2d 82), cert. den., 208 Ga. App. 910, appellant’s well was contaminated in 1984 during neighboring construction; the complaint was filed, in 1989. During argument on motion for directed verdict, appellant contended the discovery rule stayed the running of OCGA § 9-3-30; the court held that the discovery rule does not apply to property damage. Id. at 192 (3). In Heffernan v. Johnson, 209 Ga. App. 139, 140 (1) (433 SE2d 108), we concluded: “ ‘All actions for trespass upon or damages to realty shall be brought within four years after the right of action accrues.’ In these cases the right of action accrues [within the meaning of OCGA § 9-3-30] at the time of substantial completion of the project. [Cit.] Because [appellant’s] fraud claim also is based upon the damage to realty, it too is bound by OCGA § 9-3-30.” Additionally, we re-affirmed that: “Neither the discovery rule nor the continuing tort theory is applicable to actions involving only property damage.” Id.; compare Andel v. Getz Svcs., 197 Ga. App. 653, 655 (2) (399 SE2d 226); Boyd v. Orkin Exterminating Co., 191 Ga. App. 38, 41 (3) (381 SE2d 295); Miles Ins. &c. Co. v. Gilstrap, 187 Ga. App. 858 (1) (371 SE2d 672). Appellants’ fireplace and home were both substantially completed for more than four years before their suit for damages to realty was filed. Thus, the claim for damage to realty was barred by the statute of limitation. Mercer, supra; Heffernan, supra; Broadfoot, 208 Ga. App., supra; Broadfoot, 195 Ga. App., supra; Miles Ins. &c. Co., supra. Contrary to appellants’ contention, the discovery rule of Lumbermen’s, supra, was overruled by Mercer, supra, except as to cases where personal injury is involved. The discovery rule no longer applies to suits merely for real property damage; this is true whether a statute of repose exists.

(b) Appellants contend that because the limitation period of OCGA § 9-3-31 does not commence to run until injury is sustained, it does not bar their claim for damages to personal property. Appellees, however, citing Mercer, supra and its progeny, claim that implicitly the limitation period of OCGA § 9-3-31 commences from the date of substantial completion of the construction improvement and not from the date of actual damage to appellants’ personal property (see Broadfoot, 208 Ga. App., supra; Andel, supra; Broadfoot, 195 Ga. App., supra; see also Boyd, supra) and, accordingly, that appellants’ claim for damages to personal property is barred by the statute of limitation contained in OCGA § 9-3-31.

In U-Haul Co. &c. v. Abreu & Robeson, Inc., 247 Ga. 565, 567 (277 SE2d 497), the Supreme Court compared the statute of limitation provisions of Code Ann. § 3-1001 (OCGA § 9-3-30) and Code Ann. § 3-1002 (OCGA § 9-3-31), and concluded, inter alia: “Even though the cause of action for damage to the building accrues at the time of construction, a cause of action for damage to personal property or for personal injury proximately resulting from defective construction does not accrue until these injuries occur.” (Emphasis supplied.) Accord Millard &c. Builders v. Plant Improvement Co., 167 Ga. App. 855 (307 SE2d 739); A. C. Gas Svc. v. Bickley, 160 Ga. App. 737, 738 (1) (288 SE2d 84); see Ferguson v. Miller, 160 Ga. App. 436, 438 (287 SE2d 363), citing U-Haul Co., supra. This precedent has never been overruled. In Mercer, supra, lawsuits were brought to recover damages in tort for injury to property arising out of defendant’s sale to Mercer University of asbestos products; Mercer alleged these products were installed in buildings constructed or renovated on its campuses. Mercer does not address expressly the issue of damage to personal property and fails to distinguish any prior precedent concerning such issue. It is stated in Mercer, supra at 366 (1), that “[t]his case involves property damage only, there is no personal injury involved. The applicable statute of limitations in this case is OCGA § 9-3-30. ... To the extent anything in Lumbermen’s is in conflict with this opinion, it is overruled. An action under OCGA § 9-3-30 must be brought within four years of substantial completion.” (Emphasis supplied.) On its face, Mercer reflects that the statute of limitation in OCGA § 9-3-31, regarding damage to personalty claims, was not the controlling and applicable statute of limitation necessary to answer the question certified by the United States Court of Appeals for the Eleventh Circuit. Accordingly, Mercer neither expressly nor by necessary implication reverses the line of cases above cited which holds that a cause of action for damages to personalty accrues (within the meaning of OCGA § 9-3-31) at time of injury. Broadfoot, 208 Ga. App., supra; Andel, supra; Broadfoot, 195 Ga. App., supra; and Boyd, supra, will no longer be followed to the limited extent they may conflict with the holdings in U-Haul, supra, and its progeny, as to when a cause of action for damages to personalty accrues.

3. Although not enumerated as error, it must now be determined whether the statute of repose, OCGA § 9-3-51, barred appellants’ claim for damage to personal property, because a grant of summary judgment must be affirmed if it is right for any reason (compare Precise v. City of Rossville, 261 Ga. 210, 211 (3) (403 SE2d 47); see Malaga Mgmt. Co. v. John Deere Co., 208 Ga. App. 764, 767 (5) (431 SE2d 746)).

The discovery rule does not apply to the eight-year statute of repose in OCGA § 9-3-51, which on its face provides that it shall begin to run “after substantial completion” of the improvement to real property at issue. See Fort Oglethorpe Assoc. v. Hails Constr. Co., 196 Ga. App. 663 (3) (396 SE2d 585); compare Miles Ins. &c. Co., supra at 858 (2) (dictum), citing, Mercer, supra. Further, OCGA § 9-3-51 does not establish an eight-year statute of limitation; it establishes an outside time limit, which commences upon substantial completion of the improvement to the real property, and within which preexisting statutes of limitation continue to operate. Benning Constr. Co. v. Lakeshore Plaza &c., 240 Ga. 426, 428 (241 SE2d 184); Fort Oglethorpe Assoc., supra at 665 (rejecting contention that Mercer, supra, is not applicable to a case where a statute of repose applies). Moreover, the eight-year repose limit applies regardless of when the injury occurs or, indeed, whether a cause of action has accrued at all prior to the expiration of the period. Beall v. Inclinator Co. &c., 182 Ga. App. 664 (356 SE2d 899). The statute of repose can commence to run against an injured property owner even before the owner acquires legal title to the real property which is the subject of the deficient improvement; in such situations it is the substantial completion of the improvement at issue which commences the running of the eight-year period. OCGA § 9-3-51 (a).

Decided May 27, 1994.

McKenzie, Martin, Taylor & McConnaughey, B. Morris Martin, Timothy A. Bumann, for appellants.

Saveli & Williams, Charles M. Dalziel, Jr., Grant G. Morain, Stacy, Sanders & McAlpine, James M. Sanders, for appellees.

An improvement, as contemplated by this statute, denotes a fixed alteration to the real estate; the issue, in cases such as this, “ ‘is whether a component of a system which is definitely an improvement to real property is an improvement to real property itself.'’ ” (Emphasis supplied.) Broadfoot, 195 Ga. App., supra at 299 (1). We must apply the factors of Mullis v. Southern Co. Svcs., 250 Ga. 90, 94 (4) (296 SE2d 579) to the common sense analysis to determine what constitutes an “improvement to real property” within the meaning of OCGA § 9-3-51 (a). See generally Broadfoot, 195 Ga. App., supra at 299 (1); compare Atlanta Gas Light Co. v. City of Atlanta, 160 Ga. App. 396, 398 (1b) (287 SE2d 229) (gas line did not constitute improvement).

We conclude the fireplace was an improvement to real property within the meaning of OCGA § 9-3-51 (a). The fireplace component obviously was an integral part of the house; it was not a mere frill, but an alternate heat source of economic and aesthetic value. “[I]f a component is an essential or integral part of the improvement to which it belongs, then it is itself an improvement to real property.” (Emphasis supplied.) Mullis, supra at 94 (4); compare Miles Ins. &c. Co., supra (where causation was not traced in the official case report to any readily identifiable component of the house). As the fireplace “itself” is an improvement to real property and as the date of its substantial completion is capable of proof, it is the date of substantial completion of the fireplace and not of the entire house which controls in determining the date of commencement of the eight-year period in the statute of repose in this case. The record establishes, without evidence in contravention, that the fireplace was substantially completed on or about March 19, 1984, and the general contractor received a bill for such completion dated April 17, 1984. Suit was not initiated until August 7, 1992, after the running of the eight-year statute of repose. Accordingly, appellants’ claims for damages to real and personal property were barred by the applicable statute of repose. OCGA § 9-3-51 (a). The trial court correctly granted appellees summary judgment; we will not reverse. Malaga Mgmt. Co., supra.

Judgment affirmed.

Pope, C. J., McMurray, P. J., Beasley, P. J., Cooper, Andrews, Johnson, Blackburn and Smith, JJ., concur.