text:
    A96A2166.
    NEWMAN v. FILSOOF et al.
    (481 SE2d 4)
   McMurray, Presiding Judge.

Ruth Newman filed an action against Lena Pichulik and another to recover under a promissory note. Pichulik denied the material allegations of the complaint and asserted a motion for attorney fees and expenses of litigation, claiming that the complaint’s allegations reveal expiration of the 20-year statute of limitation and that the promissory note attached to the complaint reveals that the note was satisfied on August 18, 1975. Two days after this motion was filed, Newman filed a voluntary dismissal of her complaint without prejudice. Pichulik’s attorney filed his affidavit and a $2,621 attorney fee and expenses bill for the services he rendered. Pichulik’s attorney later supplemented this affidavit by filing another affidavit, deposing that “Pichulik seeks to recover $3,321.00 in connection with her Motion as an award of reasonable and necessary attorneys’ fees and expenses of litigation. . . .”

The trial court granted Pichulik’s motion for attorney fees and expenses of litigation under OCGA § 9-15-14 (a) and (b). We granted this discretionary appeal because the trial court did not enter findings of conduct that authorize such an award as required by Porter v. Felker, 261 Ga. 421, 422 (3) (405 SE2d 31). Held:

1. In Porter v. Felker, 261 Ga. 421, supra, the Georgia Supreme Court held that the “trial court’s order must include findings of conduct that authorize an award under OCGA § 9-15-14, or the order must be vacated. Coker v. Mosley, 259 Ga. 781, 782 (387 SE2d 135) (1990).” Id. at 422 (3), supra. Applying this rule in the case sub judice, the trial court did not include findings of conduct in. its order which authorize an award under OCGA § 9-15-14 (a) and (b). The trial court’s judgment must therefore be vacated and the case sub judice remanded for further consideration of Pichulik’s motion for attorney fees and expenses of litigation. See MacDougald v. Phillips, 213 Ga. App. 575, 576 (1) (445 SE2d 357), and Hardwick-Morrison Co. v. Mayland, 206 Ga. App. 426, 427 (425 SE2d 416).

2. Pichulik has filed a motion for this Court to assess damages and penalties for frivolous appeals pursuant to OCGA § 5-6-6 and Court of Appeals Rule 15 (b). Although the face of Newman’s complaint indicates that her action had no basis in law or fact, we cannot say with certainty that this conclusion is accurate; that the trial court’s order granting Pichulik’s motion for attorney fees and expenses of litigation is based on such a conclusion, or that the trial court’s order granting Pichulik’s motion for attorney fees and expenses of litigation is otherwise supportable as a matter of law and fact. Under these circumstances, and in light of the disposition of this appeal, it is not obvious that Newman and her attorney filed this appeal solely to interpose delay. Moss v. Rutzke, 223 Ga. App. 58, 59 (2) (476 SE2d 770). Consequently, Pichulik’s motion for this Court to assess damages and penalties for frivolous appeals pursuant to OCGA § 5-6-6 and Court of Appeals Rule 15 (b) is hereby denied.

Decided February 3, 1997.

Glenville Haldi, for appellant.

Arnall, Golden & Gregory, James A. Gober, Timothy E. Bixler, for appellees.

Judgment vacated and case remanded with direction; motion to assess damages and penalties for frivolous appeal denied.

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


source: Caselaw Access Project

author: Andrews, Chief Judge.

license: Public Domain

text:
    A96A2436.
    GRIFFETH v. THE STATE.
    (480 SE2d 889)
   Andrews, Chief Judge.

Elmario Griffeth and a co-defendant were tried before a jury on charges of aggravated assault and criminal attempt to commit armed robbery. Griffeth was found guilty of aggravated assault and not guilty on the second charge. The co-defendant was acquitted. On appeal from the judgment entered on the conviction, Griffeth contends the trial court erred by: (1) holding that he failed to establish a prima facie case of discrimination on the basis of race in jury selection under Batson v. Kentucky, 476 U. S. 79 (106 SC 1712, 90 LE2d 69) (1986); (2) admitting his co-defendant’s statement in violation of Bruton v. United States, 391 U. S. 123 (88 SC 1620, 20 LE2d 476) (1968); (3) admitting a bullet found by police during the crime scene investigation; and (4) refusing to charge the jury on the defense of accident. On the Batson claim, we find that a prima facie case of discrimination was established and remand the case for a hearing on this issue. Finding no other error, we affirm the judgment of conviction.

On appeal, we review the evidence in the light most favorable to the conviction. The victim testified that, while he was stopped in his car at a traffic light, a black male approached the car, demanded money, then shot him as he attempted to drive away. Although the victim could not identify the shooter, the victim’s ten-year-old son, who was also in the car, identified Griffeth as the man who shot his father. An eyewitness at the scene of the shooting testified that Griffeth approached the victim’s car while it was stopped at the traffic light and shot the victim with a .25 caliber automatic pistol. Another eyewitness at the shooting scene testified that, although he did not see a weapon, he saw Griffeth approach the car stopped at the traffic light and stick his hand inside the car and demand money. He testified that, when the victim started to drive off, he heard what sounded like a gunshot. A police detective investigating the shooting testified that the bullet entered the victim’s upper chest near the neck and exited just above the right nipple. A second detective identified a .25 caliber shell casing he found at the traffic light where the shooting occurred. The same detective also identified a bullet, which he testified was consistent with the .25 caliber shell casing, that he found on the ground adjacent to where the victim exited his car after the shooting. The State also introduced portions of a statement given to the police by Griffeth’s co-defendant. As originally given to the police, the statement showed that the co-defendant knew about the pistol and was present at the scene of the shooting, and it clearly incriminated Griffeth as the shooter. The statement as admitted at trial was redacted to eliminate all references to Griffeth and his participation in the shooting. Neither Griffeth nor his co-defendant testified at trial.

1. The evidence viewed in favor of the conviction was sufficient for a rational trier of fact to find Griffeth guilty of aggravated assault beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. After the jury was selected, Griffeth, who is black, contended at trial pursuant to Batson v. Kentucky, supra, that the State violated his Equal Protection Clause rights by exercising its peremptory strikes in a discriminatory manner to exclude members of his race from the jury on the basis of race. A Batson challenge initiates a three-step process requiring first that the party challenging the strikes establish a prima facie inference that the strikes were exercised with racially discriminatory intent. If a prima facie case of racial discrimination is established, under the second and third steps, the burden of production shifts to the proponent of the strikes to give race-neutral reasons for the strikes, and the trial court then considers the reasons given and decides whether the challenger has proven discriminatory intent. During this process, the burden of persuasion as to discriminatory intent does not shift from and remains with the challenger. Chandler v. State, 266 Ga. 509, 510 (467 SE2d 562) (1996).

The trial court did not reach the second and third steps in this case because it found that Griffeth failed to establish a prima facie case of racial discrimination. Lewis v. State, 262 Ga. 679, 680 (424 SE2d 626) (1993). The venire from which the jury was selected was twenty percent black (six of thirty), and the jury which was selected and tried the case was approximately seventeen percent black (two of twelve). In selecting the jury, the State exercised four of its six peremptory strikes. Three of the four strikes exercised by the State were used to strike three of the black potential jurors. Of the remaining three black potential jurors presented for selection, two were accepted by the State and Griffeth, and one was accepted by the State but struck by Griffeth.

Griffeth contends that a prima facie case of racial discrimination was established because seventy-five percent (three of four) of the strikes used by the State were against potential black jurors. The more relevant statistic in this case is that the State disproportionately used fifty percent (three of six) of its allotted strikes against blacks in selecting from a venire which was only twenty percent (six of thirty) black. Despite the disproportionate exercise of strikes against black prospective jurors, the State’s acceptance of three black jurors for inclusion on the twelve-person jury would have resulted in a jury with a greater percentage of blacks (twenty-five percent — including for this purpose the black juror accepted by the State but struck by Griffeth) than were in the venire (twenty percent). Nevertheless, this fact alone is not determinative. Bess v. State, 207 Ga. App. 295 (427 SE2d 813) (1993). Rather, in determining whether a Batson challenger has carried the burden of persuasion to establish a prima facie case, the court must consider all relevant evidence of discriminatory intent, and “[circumstantial evidence of invidious intent may include proof of disproportionate impact.” Batson, supra at 93. Evidence that the State exercised a disproportionate percentage of its strikes against blacks, by using 50 percent of its allotted strikes in selecting from a venire that was 20 percent black, was sufficient to establish a prima facie inference that the strikes were exercised with racially discriminatory intent. Smith v. State, 263 Ga. 224, 226 (430 SE2d 579) (1993); Davis v. State, 263 Ga. 5, 7 (426 SE2d 844) (1993); Staples v. State, 209 Ga. App. 802 (434 SE2d 757) (1993); compare Cantrell v. State, 217 Ga. App. 641 (459 SE2d 564) (1995), rev’d on other grounds, 266 Ga. 700 (469 SE2d 660) (1996) (concluding that the State’s use of ten percent of its allotted peremptory strikes against blacks in selecting from a venire that was approximately seven percent black was not a disproportionate exercise of strikes sufficient to raise a prima facie inference of discriminatory intent under Batson).

The trial court erred in determining that Griffeth failed to establish a prima facie inference of racial discrimination and in failing to require that the State give reasons for its strikes. Accordingly, we remand the case for a hearing to allow the State to explain its strikes and to allow the trial court to make findings under Batson. If the trial court determines that the prima facie case has not been rebutted by the State’s explanation, Griffeth must be given a new trial. If the trial court determines that Griffeth has not shown that the State exercised its strikes with improper discriminatory intent, Griffeth is entitled to file a direct appeal from that ruling. Smith, supra at 226-227; Staples, supra at 802-803.

3. There was no error under Bruton v. United States, supra, in the admission of the non-testifying co-defendant’s statement.

Under Bruton, the admission in a joint trial of a non-testifying co-defendant’s statement incriminating the defendant violates the defendant’s right to confront and cross-examine the co-defendant. There is no Bruton violation unless the non-testifying co-defendant’s statement, standing alone, clearly implicates the defendant. Owens v. State, 193 Ga. App. 661, 662 (388 SE2d 712) (1989).

Here, the admitted statement was redacted to remove all references to Griffeth, and the trial court instructed the jury that the statement could only be considered as evidence against the defendant who made it. In the unredacted statement, the co-defendant stated that he and Griffeth were walking together; that they stopped to talk with a group of three boys at a street corner; that a car drove up and stopped at the traffic light; that, while he stayed on the curb, Griffeth walked over to the car and told the driver to get out; that, as the driver attempted to pull away, he heard a shot and saw Griffeth standing there with a gun, and that “[he] did not know Mario [Griffeth] was going to shoot the man.” The redacted version omitted any reference to Griffeth and stated that the co-defendant stopped to talk with a group of three boys at a street corner; that a car drove up and stopped at the traffic light and he stayed on the curb; that the driver started to pull off and he heard a shot, and that “[he] did not know anyone was going to shoot the man.”

Griffeth contends that substituting “anyone” for his name in the redacted version was a Bruton violation because it was clear to the jury that “anyone” referred to him. We disagree. The redacted statement makes no reference to Griffeth, and the word “anyone” was an indefinite reference which, under the circumstances, did not clearly refer to or create any inevitable association with Griffeth.

4. There was no error in the admission of the bullet into evidence.

The trial court admitted the bullet over Griffeth’s objection that it was not connected with the charged offenses and was therefore irrelevant. “The admission or exclusion of evidence which is objected to on the ground of relevancy lies within the sound discretion of the trial court, whose decision will not be disturbed on appeal absent a clear abuse of discretion.” (Citations and punctuation omitted.) Pope v. Professional Funding Corp., 221 Ga. App. 552, 555 (472 SE2d 116) (1996).

Decided February 3, 1997.

Kristopher Shepherd, for appellant.

Harry N. Gordon, District Attorney, Richard L. Dickson, Assistant District Attorney, for appellee.

There was evidence that Griffeth shot the victim with a .25 caliber automatic pistol and that a .25 caliber shell casing was found at the scene of the shooting; that the bullet exited from the victim’s chest while he was driving the car; that the victim drove the car a short distance then parked and got out of the car to call for help, and that the .25 caliber bullet was found on the ground adjacent to where the victim exited the car. In light of evidence connecting the bullet to the shooting, the trial court did not abuse its discretion in admitting it into evidence.

5. The trial court did not err by refusing Griffeth’s request to charge the jury on the defense of accident as set forth in OCGA § 16-2-2.

Under OCGA § 16-2-2: “A person shall not be found guilty of any crime committed by misfortune or accident where it satisfactorily appears there was no criminal scheme or undertaking, intention, or criminal negligence.” Accordingly, unless there was evidence to support a finding that Griffeth fired the shot without any “criminal scheme or undertaking, intention, or criminal negligence,” the trial court correctly refused to charge the defense of accident. Campbell v. State, 263 Ga. 824, 825 (440 SE2d 5) (1994).

The evidence showed that Griffeth approached the victim’s car with a pistol, demanded money, and, when the victim attempted to drive away, he reached inside the car with the gun and shot the victim. Griffeth contends that, absent evidence he pointed the gun at the victim or threatened the victim, the jury could find that the gun accidentally discharged. Even if Griffeth did not intentionally fire the pistol, under the evidence in this case, Griffeth’s acts constituted criminal negligence rendering the defense of accident inapplicable. Sumner v. State, 210 Ga. App. 856 (437 SE2d 855) (1993); Keye v. State, 136 Ga. App. 707, 708 (222 SE2d 172) (1975); Campbell, supra at 825.

Judgment affirmed and case remanded with direction.

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


author: Eldridge, Judge.

text:
    A97A0070.
    PEARSON v. THE STATE.
    (480 SE2d 911)
   Eldridge, Judge.

On May 1, 1994, James Pearson, appellant, went to the apartment of Tina Wilson, with whom he had lived off and on for three and one-half years but was not living with on this date. Appellant was drunk when he came to the apartment and began tearing up the furniture; he broke the coffee table, destroyed the telephones so that she could not call for help, and chased Wilson into the bedroom with a chair leg. Then appellant passed out in the bedroom. Wilson could not call for help, because appellant had destroyed the telephones; Wilson sent her son next door to call the police for help, which he did.

Officer Meadows responded to the complaint. Wilson told Meadows that she wanted appellant removed from her apartment. Officer Meadows could not rouse appellant, either by shaking him or shining a flashlight in appellant’s eyes. Finally, the officer roused appellant, after nearly 15 minutes of effort, by kicking appellant’s shoe. The officer ordered appellant to leave the premises, so that they could talk outside, and thereby get appellant out of the apartment. Appellant did not want to leave and began to curse the officer. Officer Meadows took appellant by the arm to lead him out of the apartment, since he would not go voluntarily. Appellant bumped the officer in the face with his chest and backed the officer into the wall. Meadows warned appellant not to touch him again or the officer would arrest appellant; appellant grabbed the officer by the head and attempted to push the officer out the door. Officer Meadows struggled with appellant several minutes before he could put appellant on the floor and handcuff him. It took the help of two neighbors, as well as the officer, to subdue appellant. Officer Meadows had not intended to arrest appellant, just to remove him from the apartment, until appellant committed an assault and battery upon the officer. Officer Meadows arrested appellant for simple battery.

On April 17 and 18, 1996, appellant was tried in Clarke County Superior Court for felony obstruction of an officer. The jury acquitted him on the felony and found appellant guilty of misdemeanor obstruction of an officer.

1. Appellant’s first enumeration of error is that the trial court failed to give the jury an instruction on the lesser included offense to felony obstruction, or simple battery.

“A crime is so included when: (1) It is established by proof of the same or less than all the facts or a less culpable mental state than is required to establish the commission of the crime charged; or (2) It differs from the crime charged only in the respect that a less serious injury or risk of injury to the same person, property, or public interest or a lesser kind of culpability suffices to establish its commission.” OCGA § 16-1-6; Sims v. State, 197 Ga. App. 214, 217 (5) (398 SE2d 244) (1990).

OCGA § 16-10-24 (b) reads in part: “[w]hoever knowingly and willfully resists, obstructs, or opposes any law enforcement officer ... in the lawful discharge of his duties by offering or doing a violence to the person of such officer ... is guilty of a felony[.]” Hudson v. State, 135 Ga. App. 739, 742 (218 SE2d 905) (1975) held that felony obstruction “was meant to cover obstruction of law enforcement officers in general by the use of violence, threat of violence, or other unlawful means. [Cits.] Obviously [OCGA § 16-10-24 (b)] was intended to cover some actions which would not be independently unlawful, since the Committee Notes cited one of the weaknesses of the old section as being its application only to assaults, already made a crime under a separate section.” “Verbal threats of force or violence can obstruct an officer and authorize a felony conviction under OCGA § 16-10-24 (b).” Jackson v. State, 213 Ga. App. 520, 521 (444 SE2d 875) (1994). “OCGA § 16-10-24 (b) requires proof that the accused offered or did violence to the person of an officer. . . .” Duke v. State, 205 Ga. App. 689, 690 (423 SE2d 427) (1992).

Simple battery is not a lesser included offense of felony obstruction, because it is a separate and independent offense wherein the intent is to make physical contact or cause physical harm. OCGA § 16-5-23. Simple battery may arise out of the same facts and circumstances as an obstruction charge, but it would be merged with felony obstruction, if there is a conviction. The only lesser included offense to felony obstruction of an officer is misdemeanor obstruction under OCGA § 16-10-24 (a), which lacks as an element of the offense the requirement of threat of violence toward or violence to an officer. Fricks v. State, 210 Ga. App. 562, 563 (2) (436 SE2d 752) (1993); Duke v. State, supra at 690. The offense of obstruction requires the specific intent to hinder law enforcement, and if there exists any threat or act of violence against an officer, then the offense is felony obstruction, even though the threat of violence or the act of violence would be a misdemeanor against anyone else.

Simple battery is an offense that could be prosecuted along with felony obstruction or misdemeanor obstruction and result in a conviction, when the elements of either form of obstruction have not been proven. Thus, it is possible to commit the offense of simple battery against a police officer within OCGA § 16-5-23 (e) and not constitute an offense within OCGA § 16-10-24 (a) or (b). However, simply because the separate offense of simple battery could be prosecuted under the same set of facts that might support an obstruction conviction does not make simple battery a “lesser included offense” of obstruction under the law.

Since the requested charge did not constitute a lesser included offense, then the trial court did not err in not giving an incorrect statement of the law as a charge. See Fricks v. State, supra at 563 (2).

Decided February 3, 1997.

Deborah N. Bedsole, Debra G. McDonald, for appellant.

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

2. The second enumeration of error is that the evidence was not sufficient to support the conviction.

“[OCGA § 16-10-24 (a)] provides that a ‘person who knowingly and wilfully obstructs or hinders any law enforcement officer in the lawful discharge of his official duties (other than by offering or doing violence to his person) is guilty of a misdemeanor.'” Duke v. State, supra at 689. The officer came on an official complaint from the occupant of the apartment; the victim did not wish to press charges because of a personal relationship and only wished appellant removed from the premises. The officer was treating the matter as a domestic violence matter, even though he had sufficient probable cause from what he saw and what the victim told him to arrest appellant on one or more charges. In attempting to carry out his law enforcement duties, the officer was cursed and obstructed in attempting to remove appellant from the premises and to complete his investigation; the officer was attempting to arrest appellant for simple battery when appellant resisted arrest, which constitutes obstruction. The obstruction commenced prior to any struggle when appellant refused to leave the premises at the instruction of the officer.

The evidence was found by the jury to support a conviction beyond a reasonable doubt of misdemeanor obstruction, the lesser included offense to felony obstruction; we find the evidence was sufficient to allow a rational trier of fact to find appellant guilty beyond a reasonable doubt of misdemeanor obstruction of a law enforcement officer in the performance of his official duties. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Lewis v. State, 214 Ga. App. 830, 831 (449 SE2d 535) (1994); Grant v. State, 195 Ga. App. 463, 464 (1) (393 SE2d 737) (1990). Appellant is no longer entitled to the presumption of innocence following the jury verdict of guilty. In an “appeal of a criminal conviction, the evidence is to be viewed ‘in the light most favorable to the prosecution’ (i.e., in the light most favorable to the jury’s determination that the defendant is guilty), not in the light most favorable to the defendant.” Adams v. State, 255 Ga. 356, 357 (338 SE2d 860) (1986).

Judgment affirmed.

Birdsong, P. J., and Ruffin, J., concur.


text:
    A97A0131, A97A0132.
    In the Interest of T. B. R. et al., children (two cases).
    (480 SE2d 901)
   Eldridge, Judge.

Appellants Melissa Henderson (“Henderson”) and James Robison (“Robison”), parents of two minor children, individually challenge the termination of their parental rights. For the reasons set forth below, we affirm the decision of the trial court.

Henderson is a 28-year-old woman with a ninth grade education. In the ten years since she became 18, she has held two brief jobs. She claims that her lack of employment is primarily a result of the fact that she has been incarcerated for seven of the past ten years for various felonies.

Henderson has four children; her two youngest children are the subject of the proceedings at issue. Her oldest child, a son, was born when she was 16 years old; he has lived with his maternal grandmother (Henderson’s mother) his entire life. Henderson’s second child, a daughter, was born in 1987; Henderson gave the child to a male acquaintance when the child was only two months old. The child is now nine years old and continues to live with this man, although there has been no formal adjudication assigning custody of the child. Henderson maintains that she has had some contact with both of these children, sending them cards and small gifts, but has never provided any significant financial support.

Henderson and Robison began cohabitating in 1987 and are common law spouses. Henderson testified that, during the four years that they lived together, Robison often abused alcohol and used intravenous and other drugs; she admitted using drugs with him. Neither appellant maintained steady employment, even though Henderson admitted that she was physically able to work. Instead, Henderson chose to forge checks, a crime for which she was convicted twice in 1988; she served over 15 months for the second conviction. Following her release from prison, Henderson was convicted of DUI, but apparently did not serve additional jail time.

Appellants’ daughter, T. B. R., was born in 1990, and their son, J. L. R., was born 11 months later in 1991; these children are the subjects of the case sub judice. When J. L. R. was only three weeks old, Henderson was involved in a robbery during which a 77-year-old man was killed. Immediately after the slaying, she traveled to Tennessee in order to elude the police, leaving her two children, both less than a year old, with their father, who she admits was abusing aleohol and drugs. Henderson was subsequently convicted by a jury of voluntary manslaughter and theft by taking and was sentenced to concurrent 20-year terms of incarceration.

Shortly thereafter, Robison also became incarcerated. The Georgia Department of Human Resources Division of Family & Children Services (“DFCS”) gained temporary custody of the children and placed them in a foster home. When Robison was released from custody later that year, DFCS returned the children to him. Robison kept the children from 1991 until he was again incarcerated in 1994. While he had custody of the children, they were often homeless, living in cars or with relatives. In 1993, DFCS followed up on a report that Robison was sexually abusing T. B. R.; the results of the investigation were “undetermined,” and he was not charged. Robison was also accused of stealing welfare checks and tax refund checks to support his drug habit. When he was incarcerated again in 1994, DFCS regained custody of the children.

DFCS attempted to place the children with relatives of appellants; however, no suitable, willing relatives were identified. Eventually, the children were placed in a foster home in Cobb County. In 1995, a Cobb County DFCS caseworker arranged for the children to visit with their mother at the prison. From Henderson’s incarceration in 1991 until this visit was arranged in 1995, Henderson had no contact with the children. She had provided no support and had not communicated with them. The young children did not know their birth mother; they referred to their foster mother as “mom” and referred to Henderson as “Melissa.” Since the initial visit, Henderson has visited with them two or three additional times, although she claims to write them often.

In November 1995, Henderson wrote a letter to DFCS in which she admitted that the children were better off with the foster family and agreed to consent to their adoption. However, Henderson later changed her mind and refused to give her consent. In the meantime, a citizen panel that reviewed the case status of T. B. R. and J. L. R. recommended to DFCS that the parental rights of Henderson and Robison be terminated.

DFCS moved to terminate appellants’ parental rights on March 1, 1996. After several unsuccessful attempts to locate Robison, DFCS petitioned the court to allow service by publication, as allowed by OCGA §§ 15-11-29 and 9-11-4 (e) (1); the petition was granted and service was effected on May 3, 1996. A hearing was held on May 8, 1996; Henderson, represented by court-appointed counsel, appeared and testified. Two caseworkers from DFCS testified also. On July 1, 1996, an order terminating appellants’ parental rights was granted. Appellants both filed timely appeals.

Case No. A97A0131

(480 SE2d 860)

Henderson asserts that the termination of her parental rights was not supported by sufficient evidence, was based on past history that does not support an inference of present unfitness, disregarded evidence of her present ability to care for her children, and is against legal precedent.

The standard of review of a juvenile court’s decision to terminate parental rights is “ ‘ “whether after reviewing the evidence in the light most favorable to the appellee, any rational trier of fact could have found by clear and convincing evidence that the natural parent’s rights to custody have been lost.” ’ ” In the Interest of A. O. A., 172 Ga. App. 364, 365-366 (323 SE2d 208) (1984), quoting Blackburn v. Blackburn, 249 Ga. 689, 694 (292 SE2d 821) (1982); see also In the Interest of A. M. V., 222 Ga. App. 528 (474 SE2d 723) (1996); In the Interest of J. M. D., 221 Ga. App. 556 (472 SE2d 123) (1996); In the Interest of S. L. W., 221 Ga. App. 509, 510 (471 SE2d 579) (1996) (holding that the “reviewing court is to defer to the lower court in the area of factfinding and should affirm” unless this standard is not met). Clear and convincing evidence is that intermediate standard of proof between “preponderance of the evidence” and “beyond a reasonable doubt.” Clarke v. Cotton, 263 Ga. 861 (440 SE2d 165) (1994); see also In re Estate of Burton, 265 Ga. 122, 123 (453 SE2d 16) (1995); Gen. Motors Corp. v. Moseley, 213 Ga. App. 875, 886 (447 SE2d 302) (1994). In a termination case, “[tjhis standard of review safeguards the high value society places on the integrity of the family unit and helps eliminate the risk that a factfinder might base his determination on a few isolated instances of unusual conduct or idiosyncratic behavior.” (Citations and punctuation omitted.) In the Interest of D. S., 217 Ga. App. 29, 31 (456 SE2d 715) (1995); see also Santosky v. Kramer, 455 U. S. 745, 758-759, 769 (102 SC 1388, 71 LE2d 599) (1982) (holding that since a “ ‘parent’s interest in the accuracy and justice of the decision to terminate his or her parental status is . . .a commanding one,’ ” the use of a “ ‘preponderance of the evidence’ standard ... is inconsistent with due process.” The Court noted that a higher evidentiary standard will reduce factual errors and may reduce wrongful terminations, while conveying to the factfinder “the level of subjective certainty about his factual conclusions necessary to satisfy due process.”).

In examining the evidence in the light most favorable to appellee, the State of Georgia and DFCS, there is more than sufficient clear and convincing evidence in the case sub judice for a rational factfinder to determine that Henderson’s parental rights should be terminated and that such termination is in the children’s best interests.

1. (a) The first factor in the determination of parental misconduct or inability is whether the children are deprived. In 1994, the children were determined to be deprived and were taken into custody by DFCS. This deprivation order has been renewed at least one time, and has not been appealed by either parent. Therefore, both appellants are bound by this finding of deprivation and the first factor is satisfied. In the Interest of J M. D., 221 Ga. App. at 558; In the Interest of S. L. W., 221 Ga. App. at 512.

(b) Turning to the second factor, in determining if there has been a lack of proper parental care or control which caused the deprivation, the trial court must consider evidence of convictions and incarcerations that have a “demonstrable negative effect” on the parent-child relationship. OCGA § 15-11-81 (b) (4) (B) (iii). “Although imprisonment alone does not always compel a termination of parental rights, it will support such a ruling when adequate aggravating circumstances are shown to exist.” (Citations and punctuation omitted.) In the Interest of L. F., 203 Ga. App. 522 (417 SE2d 344) (1992). These aggravating circumstances may include a “ ‘criminal history of repetitive incarcerations for the commission of criminal offenses or parole violations, [which] constitutes an additional factor which may be considered in determining whether the child presently is without the proper parental care and control of the offending parent, and that such is likely to continue. (Cit.)’ ” Id.

In the case sub judice, the evidence shows that Henderson has committed four felonies since 1988. Even though she was incarcerated for over 15 months in 1988 and 1989, she quickly returned to a life of crime. This is in spite of the fact that she delivered two children between 1990 and 1991.

Henderson is currently incarcerated for the 1991 voluntary manslaughter of a 77-year-old man during a robbery. To exacerbate the seriousness of the crime, Henderson, in an apparent attempt to avoid prosecution for this crime, abandoned her eleven-month-old daughter and three-week-old son, leaving them with her common law husband, Robison, who Henderson herself acknowledges has a history of intravenous drug abuse, unemployment, and crime.

Henderson has been incarcerated for almost the entire lives of the children at issue here. They have been moved from one foster home to another, have been homeless, neglected, and possibly abused while in the custody of their father. They are at risk of experiencing the symptoms of foster care drift. Henderson admits that the children are suffering and that the primary reason she does not care for her children is her incarceration; for these reasons, she even agreed to give up the children for adoption. A DFCS caseworker testified that exposure to the prison environment during the children’s visitations with their mother is harmful. Based on this evidence, a rational factfinder could certainly conclude that the children are deprived and suffering as a result of Henderson’s incarceration.

However, there is additional evidence of another factor that the court must consider in determining whether there has been parental misconduct: evidence of “past [or present] physical, mental, or emotional neglect of the child or of another child by the parent.” (Emphasis supplied.) OCGA § 15-11-81 (b) (4) (B) (v).

In the case sub judice, Henderson not only abandoned the children at issue in this action when she fled to Tennessee following her 1991 crime, she has also abandoned her two older children, leaving one with her mother to raise arid the other, at two months of age, with a male acquaintance. She has consistently failed to support them financially, even when she was not incarcerated. These facts clearly support a finding that Henderson lacked, and continues to lack, “proper parental care and control.”

(c) The third issue to be considered is whether the causes of the deprivation will continue. In addition to evidence of present parental misconduct or inability, “evidence of past conduct may be considered in determining whether the deprivation would be likely to continue. . . .” In the Interest of A. M. V., 222 Ga. App. at 531; In the Interest of B. J., 220 Ga. App. 144, 146 (469 SE2d 313) (1996).

During the turbulent four-year period before her incarceration in 1991, Henderson has admitted to using drugs, possibly even intravenous drugs. She was convicted of three felonies, including forgery and DUI, and served over fifteen months in prison in 1988. Yet she was pregnant at least eighteen months of this period with the two children at issue in this case. One can reasonably infer from these facts that Henderson participated in dangerous and illegal conduct while pregnant and/or while caring for one or more infants. This conduct exhibits an alarming lack of concern for the safety and well-being of her children.

The evidence, viewed in the light most favorable to the appellee, indicates that Henderson has never been solely responsible for a child for longer than a year and, contrary to her assertions, has voluntarily abandoned all four of her children, leaving them with her mother, her drug-abusing husband, or an acquaintance. The evidence demonstrates that Henderson seems to have trouble accepting responsibility for anything in her life, blaming her failure to support her children on her frequent incarcerations, her failure to work despite her ability to do so, and her history of drug use, all unfortunate circumstances for which she is completely and solely responsible.

Appellant asserts that her past history is irrelevant to her present fitness as a parent. We strongly disagree. Her history of child abandonment is clearly relevant when appellant, aware of her past failings, continues to ignore her responsibility to financially support her children. This is clearly present conduct from which a factfinder can infer that appellant, in spite of a recent, albeit questionable, change of heart, is not prepared to support her children in the future.

Further, even though she has been incarcerated for five years, Henderson has only recently begun to prepare for her future by pursuing a GED and taking drug abuse and parenting classes. While this may indicate an attempt to comply with the DFCS reunification plan, it falls very short of negating years of abandonment and harmful neglect. See In the Interest of M. N. L., 221 Ga. App. 123, 124 (470 SE2d 753) (1996).

However, Henderson testified that she has been “approved” for release to a half-way house sometime in the future; she later admitted that she has only applied for the program and considers herself to be “eligible” for approval. Henderson also testified that she hopes to be paroled in 1998, but her opportunity for parole is uncertain, since Henderson has been disciplined while in prison for possession of contraband, a situation she seems to dismiss as a minor infraction. Even if paroled in 1998, Henderson has done little to prepare for the tremendous responsibility of supporting two young children, assuming she continues to avoid financial support of her two older children. While “[t]he mother’s efforts to improve herself during her imprisonment are good . . . the trial court must determine whether a parent’s conduct warrants hope of rehabilitation, not an appellate court.” (Citations and punctuation omitted.) In the Interest of M. N. L., 221 Ga. App. at 124.

Further, the trial court is certainly justified in giving Henderson’s assertions of sudden parental fitness minimal consideration, since her testimony before the trial court is wrought with contradictions and with vague, self-serving, unsubstantiated claims and excuses. For example, Henderson claimed that she only forged checks to support her family, but then admitted during her testimony that the forgery occurred when she went on a “shopping spree” with a friend to buy new clothes; this shopping spree occurred in 1988, a time when Henderson had no children at home, having already abandoned her older son and daughter. Further, she first asserted that her common law husband did not have a drug problem, although she admitted he used cocaine and intravenous drugs; she then denied using drugs with him, but changed her story when presented with the conflicting evidence in the form of a 1991 letter she had written to DFCS. She also testified that her husband did not steal money to purchase drugs, yet had accused him in the same 1991 letter of stealing welfare and tax refund checks, crimes about which she testified only when confronted with the letter. She even attempted to deny that she had written the letter, although she finally admitted that it was in her handwriting. Finally, when asked about the first child that she had abandoned, she claimed to have cared for her son for five years, which would have been from 1984 until 1989. Yet during that same period she claimed to be living with Robison, without her older children. Such testimony is directly contradictory and may be construed against Henderson, since she offered no reasonable explanation for the discrepancies. Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27, 30 (343 SE2d 680) (1986). Further, the trial court heard all of the evidence presented; it is the role of the factfinder, not the appellate courts, to judge the credibility of a witness or the lack thereof and to decide whether to disregard the testimony. Tankesley v. Thompson, 220 Ga. App. 641, 642 (469 SE2d 853) (1996). Considering all of the circumstances, a rational factfinder could determine that the deprivation of T. B. R. and J. L. R. is likely to continue.

(d) Finally, a court must determine if the continued deprivation “will cause or is likely to cause serious physical, mental, emotional, or moral harm to the [children].” OCGA § 15-11-81 (b) (4) (A) (iv). In the case sub judice, the DFCS caseworker testified that, due to their unstable lifestyle and multiple relocations, the children are at risk of developing “foster care drift,” a condition that prevents children from forming emotional attachments with others. This syndrome results from frequently moving children among several different foster homes. Further, five-year-old J. L. R. is developing aggressive, antisocial behavior as a result of his unstable lifestyle, which is certainly harmful and, if the problem is not addressed soon, could possibly result in his being more difficult to place in an adoptive home in the future.

Still, Henderson is asking the court to delay a permanent placement of the children until her possible release in 1998, when the children will be ages seven and eight. The DFCS caseworker testified that the children will become “less adoptable” as they get older, reducing the chances of a permanent placement if Henderson, once again, has a change of heart and abandons the children. While DFCS is “obligated to pursue alternatives to termination, which it did in this Gase, . . . it is not obligated to gamble the [children’s] prospects for a good life on the possibility that the mother will emerge from prison in two [or more] years reformed to the point that she can take care of [the children] and provide [them] with a stable home.” In the Interest of M. N. L., 221 Ga. App. at 125.

Thus, this Court finds that the evidence as presented amply supports a determination that T. B. R. and J. L. R. already have been harmed and that they will continue to be harmed unless affirmative steps are taken to end the deprivation and place these children in a stable, permanent environment. This is best accomplished by terminating Henderson’s parental rights.

2. In so finding, we now address the second prong of the statutory requirements of OCGA § 15-11-81 (a), that such termination would serve the best interests of the children. The evidence presented paints a bleak picture of the children’s unstable past of neglect, exposure to crime and illegal drugs, possible abuse, and frequent, disruptive relocations. The possibility of a future filled with such instability is very high, considering Henderson’s reckless past, irresponsible present, and unpredictable future. At a minimum, she will be in the state’s custody for another two years, and will emerge from the experience with minimal job skills, no real employment history, four felony convictions, eight and one-half years of past incarceration, a history of drug abuse, minimal contributions from her family, no spousal support, and at least two, if not four, dependent children to feed, clothe, discipline, educate, and protect. Placing T. B. R. and J. L. R. in a home where the potential for failure is so profound is avoidable and, therefore, unnecessary.

The children are currently adoptable and, with appropriate attention, may escape the permanent ravages of the deprivation that has otherwise disrupted their entire lives. Thus, we conclude that there is more than sufficient clear and convincing evidence that it is in the children’s best interest that Henderson’s parental rights be terminated. We affirm the judgment of the trial court as to the termination of Henderson’s parental rights.

Case No. A97A0132

Appellant Robison, the children’s father, appeals the termination of his parental rights, asserting that much of the evidence was inadmissible and therefore insufficient to support such termination. He bases this assertion in part on the claim that he did not receive actual notice of the termination hearing, so that he was unrepresented at the hearing; he did not have an opportunity to cross-examine the witnesses against him; he did not have the opportunity to object to the testimony at the hearing; and therefore, he was denied due process.

3. OCGA § 15-11-27 (b) allows a court to order service by publication of the summons to a termination hearing if, after reasonable effort, a party cannot be personally served and his mailing address cannot be ascertained. See also OCGA §§ 9-11-4; 9-11-5; 15-11-83 (b). The statutory requirements are consistent with the United States Supreme Court’s holding that, in order to satisfy due process requirements, notice must be reasonably calculated, under all of the circumstances, to afford parties an opportunity to be heard. Mullane v. Central Hanover Bank &c. Co,, 339 U. S. 306, 314 (70 SC 652, 94 LE 865) (1950). Contrary to Robison’s assertions, a party does not have an absolute right to personal service or actual notice of an action against them; such a holding would only encourage parties to become unavailable for service of process and permanently derail impending legal action. Georgia law has never required such diligence in any type of legal proceeding.

In support of its request to serve Robison by publication, appellee filed an affidavit with the court asserting that, despite DFCS’s due diligence, Robison could not be found and could not be served at his last known address. In addition, DFCS caseworkers testified at the hearing that Robison had failed to contact DFCS about his children for over a year and had failed to keep caseworkers apprised of his change of address. Robison apparently abdicated his parental responsibilities to the state in 1994; now he complains that the state did not make extraordinary, perhaps even futile, efforts to locate him. Such expectations are without statutory support and would place an undue burden on DFCS, particularly in a case where a parent’s extended and unexplained absence is one basis for the termination proceeding. Under the notice provisions of OCGA § 15-11-27, the court did not err in allowing service of Robison by publication.

4. In addition to supporting the trial court’s decision to allow service by publication, the extensive evidence of Robison’s lack of contact with his children and DFCS also supports the termination of Robison’s parental rights. In determining whether the child is without “proper parental care and control,” as required to support a termination order under OCGA § 15-11-81 (b) (4) (A) (ii), “the court shall consider, without being limited to, whether the parent without justifiable cause has failed significantly for a period of one year or longer prior to the filing of the petition for termination of parental rights: (i) [t]o communicate or make a bona fide attempt to communicate with that child in a meaningful, supportive, parental manner; (ii) [t]o provide for the care and support of the child as required by law or judicial decree; and (iii) [t]o comply with a court ordered plan designed to reunite the child with the parent or parents.” OCGA § 15-11-81 (b) (4) (C) (i)-(iii). All of these factors are present in the case sub judice.

DFCS caseworkers testified that they repeatedly tried to reach Robison through relatives and friends, but he never returned their calls; in fact, Robison made no attempt to contact DFCS concerning his children in over a year prior to the hearing. He has provided no financial support, and has completely failed to comply with the goals of the family reunification plan developed by DFCS. See In the Interest of S. L. W., 221 Ga. App. at 510.

Robison points to vague references in the testimony that support his contention that he did, in fact, contact the children on Christmas 1995, while they were visiting his grandmother. While such visit may have taken place, it certainly does not rise to the level of “a bona fide attempt to communicate ... in a meaningful, supportive, parental manner.” OCGA § 15-11-81 (b) (4) (C) (i). The testimony indicates that the children, after being surprised by an unexpected visit from their father, suffered recurring nightmares. This lone, questionable attempt to communicate with his children does little to support Robison’s case. Even if its consideration was limited solely to the evidence of Robison’s abandonment of the children, the trial court was justified in finding that the provisions of OCGA § 15-11-81 were fulfilled and in terminating Robison’s parental rights.

However, there is significant additional evidence of Robison’s parental unfitness that bolsters the trial court’s order. The evidence indicates that Robison has a history of drug and alcohol abuse, including the use of intravenous drugs. From 1991 until he was incarcerated in 1994, Robison had custody of the children and failed to provide a stable home, repeatedly relocating the family between relatives, motels, and sometimes living in his car. Further, Robison was accused of sexually abusing his three-year-old daughter in 1993, although the abuse could not be confirmed. Finally, Robison has had numerous felony incarcerations and has been accused of stealing the tax refund and welfare checks of others, including his daughter, in order to support his drug habit.

Robison characterizes Henderson’s testimony regarding his history of drug abuse and criminal activity as inadmissible hearsay. However, most of Henderson’s testimony was based on her personal knowledge of Robison’s drug use during their period of cohabitation prior to her 1991 incarceration, and was not hearsay. Henderson’s related testimony about her joint participation in Robison’s drug use was, in fact, an admission against her interest, which supports the reliability of the statements. See OCGA § 24-3-34. Further, while Henderson’s assertions of Robison’s continued drug use and criminal activity after 1991 may have been based on hearsay, they were arguably admissible as evidence of her state of mind in contacting DFCS and eventually agreeing to consent to the adoption of her children. Her assertions were further supported by the contemporaneous letters she wrote to DFCS during her incarceration, as well as by Robison’s subsequent incarceration in 1994. This court presumes that the trial court, unlike a jury, recognizes hearsay and will disregard such evidence if it appears incredible or unreliable. See, e.g., Daniels v. State, 211 Ga. App. 23 (438 SE2d 99) (1993). Since the evidence regarding Robison’s criminal activities during Henderson’s incarceration was relevant, was supported by additional evidence, and had independent indicia of reliability, there was no abuse of discretion by the trial court in admitting the statements.

Decided February 3, 1997.

James E. Wilbanks, for appellant (case no. A97A0131).

Richard L. Yancey, for appellant (case no. A97A0132).

Michael J. Bowers, Attorney General, Shalen A. Sgrosso, Assistant Attorney General, Waycaster, Morris, Johnson & Dean, Cynthia N. Johnson, Jeffrey J. Dean, for appellee.

Therefore, after considering the totality of the evidence in a light most favorable to the appellee, a rational factfinder would be justified in determining that Robison lacked “proper parental control” under OCGA § 15-11-81 (b) (4) (B) (ii)-(v); the same evidence supports an inference that Robison’s past misconduct is likely to continue in the future. See In the Interest of A. M. V., 222 Ga. App. at 531; In the Interest of B. J., 220 Ga. App. at 146. Further, there is clear and convincing evidence to support a determination that the termination of Robison’s parental rights is in the best interests of the children. In the Interest of S. L. W., 221 Ga. App. at 513. We affirm the judgment of the trial court as to the termination of Robison’s parental rights.

Judgments affirmed.

Birdsong, P. J., and Ruffin, J., concur.

       DFCS attempted to place the children with Robison’s grandmother, but she was too frail to keep them. The children were then placed with relatives who were related by marriage to Robison; the relatives returned the children to DFCS when a serious family illness made them unable to care for the children. Another couple that was related to Robison kept the children for only four days before calling another foster family to pick them up on Thanksgiving Day 1995.

       DFCS conducts citizen panel case reviews every six months for each child as long as they are in DFCS custody.

       Robison asserts that he was entitled to be represented by legal counsel at the hearings pursuant to OCGA § 15-11-30 (b). While Robison was certainly entitled to retain private counsel, he never requested court-appointed counsel and was not entitled to court-appointed counsel absent a showing that he was indigent. OCGA § 15-11-30 (a), (b).

       Compare Crenshaw v. Crenshaw, 267 Ga. 20, 21 (471 SE2d 845) (1996) (holding that notice by publication was not reasonably designed to ensure that a pro se party received such notice and was inadequate to meet due process requirements when the court had a current out-of-state address of a party in a divorce action); see also Green v. Green, 263 Ga. 551, 559 (437 SE2d 457) (1993) (Sears, J., concurring specially).

       This Court notes that, although Robison claims that he had no notice of the termination hearing, he somehow received notice of the termination order and was able to hire an attorney and file an appeal within 30 days of the order. Such expediency leads to an inference that notice of the hearing was properly served, despite assertions to the contrary, since notice of the hearing and the judgment were provided in the same manner.


author: McMurray, Presiding Judge.

text:
    A96A2505.
    NEWPORT v. THE STATE.
    (480 SE2d 868)
   McMurray, Presiding Judge.

Defendant was tried before a jury and convicted of aggravated child molestation and child molestation. This appeal followed the denial of defendant’s motion for new trial. Held:

1. Defendant contends the trial court erred in sentencing him for two separate offenses, arguing that the two offenses involved the same conduct and the same victim.

“ ‘If both convictions were based upon the same, single act, only one conviction could stand. (Cit.)’ Garrett v. State, 188 Ga. App. 176 (3) (372 SE2d 506) (1988). See also LaPalme v. State, 169 Ga. App. 540 (1) (313 SE2d 729) (1984).” Huggins v. State, 192 Ga. App. 820, 821 (2) (386 SE2d 703). In the case sub judice, defendant was charged with aggravated child molestation based on his having placed his sex organ in contact with the child’s vagina and vaginal area, “which did result in physical harm to said child,” and with child molestation based on his having touched the victim’s breasts, vagina and vaginal area. The aggravated child molestation offense was proved without reference to the act of child molestation and was factually and legally distinct from it. Specifically, the child molestation conviction is supported by the 13-year-old victim’s testimony that defendant touched her breasts, vagina and vaginal area on one occasion in May 1995, and the aggravated child molestation conviction is supported by the child’s testimony that defendant placed his sex organ in contact with her vagina and vaginal area, causing the child physical trauma, on another occasion in May 1995. Accordingly, since the indictment charged defendant with committing the two crimes by means of separate and different sexual acts — each factually and legally distinct from the other and proved without reference to the other — the trial court did not err in entering judgments of conviction and sentences against defendant on each of the two offenses. Garrett v. State, 188 Ga. App. 176, 177 (3), supra.

2. Next, defendant contends the trial court erred in failing to give the jury, without request, instructions that similar transactions evidence introduced by the State was admitted for a limited purpose and to describe that purpose.

“When evidence is admitted for a limited purpose it is not error for the trial court to fail to instruct the jury to limit its consideration to the one purpose for which it is admissible, in the absence of a proper request to so instruct the jury. Moore v. State, 202 Ga. App. 476, 479 (3), 480 (414 SE2d 705); Thomas v. State, 199 Ga. App. 49, 50 (4) (404 SE2d 315).” Bell v. State, 219 Ga. App. 553, 554 (2) (466 SE2d 68). In the case sub judice, defendant made no such request to charge. He therefore was not entitled to a limiting instruction upon admission of the similar transaction evidence or in the general charge. Evans v. State, 201 Ga. App. 20, 28 (8) (410 SE2d 146).

Decided January 22, 1997

Reconsideration denied February 4, 1997

Mitchell & Mitchell, E. Neil Wester III, Gee G. Vaughn, for appellant.

Kermit N. McManus, District Attorney, Stephen E. Spencer, Assistant District Attorney, for appellee.

3. Defendant’s contention that the evidence is insufficient to sustain his conviction for aggravated child molestation is without merit. The victim’s testimony alone is sufficient to authorize the jury’s finding that defendant is guilty, beyond a reasonable doubt, of aggravated child molestation as charged in the indictment. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560); Hardy v. State, 210 Ga. App. 811, 813 (4) (437 SE2d 790).

Judgment affirmed.

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


text:
    A96A1719.
    WALSTON & ASSOCIATES, INC. v. CITY OF ATLANTA.
    (480 SE2d 917)
   Andrews, Chief Judge.

Walston & Associates, Inc. performed insurance consulting services for the City of Atlanta pursuant to an oral agreement with two City officers. After the agreement was terminated, Walston & Associates sued the City to recover amounts allegedly remaining due for the services it performed. The suit alleges alternative causes of action based on breach of contract, quantum meruit, and inverse condemnation. The trial court granted summary judgment in favor of the City. Walston & Associates appeals claiming the trial court erred by granting summary judgment on the breach of contract and quantum meruit claims.

1. The trial court properly granted summary judgment in favor of the City on the breach of contract claim.

Walston & Associates performed the services pursuant to an oral agreement approved by two City officers who, under the provisions of the City charter and ordinances, had no authority to bind the City to the agreement. “Powers of all public officers are defined by law and all persons must take notice thereof. The public may not be estopped by the acts of any officer done in the exercise of an unconferred power.” OCGA § 45-6-5. “ All persons dealing with a public officer must at their peril ascertain the extent of his authority.’. . . [Cits.] It is ‘the duty of any person dealing with (a) municipality in a contractual relation to see that there has been a compliance with the mandatory provisions of the law limiting and prescribing its powers!,)’ [cit.], a duty which includes determining that the public officer who executed a contract has the requisite authority. [Cits.] In this regard, parties are presumed to know the law, OCGA § 1-3-6, which includes not only statutes like OCGA § 45-6-5 but also the provisions of municipal ordinances. [Cit.]” (Emphasis in original.) City of Atlanta v. Black, 265 Ga. 425, 426 (457 SE2d 551) (1995); Cole v. City of Atlanta, 195 Ga. App. 67, 68 (392 SE2d 283) (1990); City of Atlanta v. Bull, 161 Ga. App. 648 (288 SE2d 335) (1982). Since this case does not involve an irregular or unauthorized method of exercising a granted power, but rather action taken by City officials who had no authority to do so, the unauthorized nature of the contract precludes Walston & Associates from asserting estoppel against the City. City of Warner Robins v. Rushing, 259 Ga. 348 (381 SE2d 38) (1989); Corey Outdoor Advertising v. Bd. of Zoning &c. of Atlanta, 254 Ga. 221, 223-224 (327 SE2d 178) (1985); Cole, supra; Bull, supra; compare City of Summerville v. Ga. Power Co., 205 Ga. 843 (55 SE2d 540) (1949). In the absence of a binding contract, Walston & Associates had no basis for asserting a breach of contract claim.

2. The trial court erred, however, in granting summary judgment in favor of the City on the quantum meruit claim.

Pursuant to the oral agreement, Walston & Associates reviewed the City’s workers’ compensation files to identify employees’ claims where it might be appropriate for the City to seek reimbursement from the subsequent injury trust fund (SITF) (OCGA § 34-9-350 et seq.). After reviewing the files and identifying potential claims, Walston & Associates processed the claims by filing notices of claims, conducting investigations into the merits of the claims, and preparing and submitting appropriate claims to the SITF for reimbursement. Upon approval by the SITF and payment of reimbursement to the City, Walston & Associates received a percentage of the payment made to the City on each successful claim as compensation for its services.

Walston & Associates was paid a percentage of all reimbursement amounts paid to the City from the SITF through the date the oral agreement was terminated. At the time the agreement was terminated, Walston & Associates had reviewed and identified some claims as having potential for SITF reimbursement and had fully or partially processed other claims, but no reimbursement payment had yet been made to the City from the SITF on such claims. After the agreement was terminated, another insurance consulting firm began working on and submitting SITF claims for the City. Thereafter, the City continued to receive reimbursement payments from the SITF on claims on which Walston & Associates had performed all or some of the work necessary to identify, process, and submit the claims. However, the City refused to pay Walston & Associates any further sums as compensation from the reimbursement payments it received on these claims after the date the agreement was terminated.

Decided February 4, 1997.

William F. Mitchell, for appellant.

Lemuel H. Ward, Jerolyn W. Ferrari, Clifford E. Hardwick IV, for appellee.

The record clearly shows that the City accepted the services performed by Walston & Associates on SITF claims and that the services benefited the City to the extent they may have contributed to the City’s receipt of reimbursement payments on those claims. “Where, as here, an ‘agreement’ exists to perform lawful services for a municipality but it is not otherwise enforceable as a valid express contract, a recovery in quantum meruit is authorized to the extent of the value of the benefit that the municipality receives.” City of St. Marys v. Stottler Stagg & Assoc., 163 Ga. App. 45, 46 (292 SE2d 868) (1982); City of Dallas v. White, 182 Ga. App. 782, 783 (357 SE2d 125) (1987). The fact that Walston & Associates may have performed only part of the work on some claims which were completed by others and paid to the City after Walston & Associates ceased working on the claims does not preclude a quantum meruit action for the reasonable value to the City, if any, of the services provided. Sharp-Boylston Co. v. Lundeen, 145 Ga. App. 672, 673-675 (244 SE2d 622) (1978).

Judgment affirmed in part and reversed in part.

Pope, P. J, and Senior Appellate Judge Harold R. Banke concur.


author: Birdsong, Presiding Judge.

text:
    A96A2184.
    GOEN et al. v. CITY OF ATLANTA. GABRIEL et al. v. CITY OF ATLANTA.
    A96A2185.
    (481 SE2d 244)
   Birdsong, Presiding Judge.

Roy E. Goen, Jr., and Gail G. Hooks and D. L. Gabriel and Sarah Gabriel appeal the grant of judgment on the pleadings to the City of Atlanta in their separate actions against the City which have been consolidated for purposes of this appeal because the same issues control each case. Appellants contend the trial court erred by concluding that ante litem notice As required by OCGA § 36-33-5 was not given to the City and appellants contend the trial court erred by allowing the City to raise this defense, which was not identified in the pretrial order, after the pretrial order was entered.

Appellants own property located in the Ballard Road area of the City of Forest Park in Clayton County, which they claim the City trespassed on and damaged while expanding the Atlanta Airport. Although the City offered to buy appellants’ property, no agreement was reached and appellants filed suit against the City. Even though the City raised the defense that ante litem notice was not given, no motion to dismiss was filed and the issue was not identified in the pretrial order. Subsequently, however, the trial court granted the City’s motion for judgment on the pleadings because of appellants’ failure to give the notice required by OCGA § 36-33-5. Appellants contend the trial court erred by granting the City’s motion because they substantially complied with OCGA § 36-33-5 and because the City waived the ante litem notice issue by not raising the issue in the pretrial order. Held:

1. Essentially OCGA § 36-33-5 provides that no person with a claim for money damages against a city shall bring any action against the city without first presenting a claim, in writing, within six months of the event giving rise to the claim stating the time, place, and extent of the injury and the negligence which caused the injury. Appellants contend they substantially complied with this provision (see Bush v. City of Albany, 125 Ga. App. 558 (188 SE2d 245)) because notice was given in another action against the City concerning the Ballard Road area which purported to give notice on behalf of the named plaintiff in that case and all other persons similarly situated. We disagree. Although substantial compliance will satisfy the requirements of OCGA § 36-33-5, this notice was inadequate to do so. Nothing in the notice given in the other case advised the City of the claims of these appellants or of the time, place, and extent of the injury and the negligence causing the injury as required by OCGA § 36-33-5. Moreover, appellants’ argument that they could not give notice within six months of the injury because they did not know when the injury occurred is of little significance because they gave no notice whatsoever. Had appellants given some notice, it might be argued that they had substantially complied with the ante litem notice provisions because they gave notice as soon as they became aware of the injury. Such notice would have given the City the opportunity to investigate their claims and take further action as warranted. Here, however, they provided no notice whatsoever, and thus by appellants’ actions the City was deprived of the purpose of OCGA § 36-33-5. See Jones v. City of Austell, 166 Ga. App. 808 (305 SE2d 653); City of Gainesville v. Moss, 108 Ga. App. 713 (134 SE2d 547), overruled on other grounds, City of Chamblee v. Maxwell, 264 Ga. 635, 638 (452 SE2d 488). Therefore the trial court did not err by finding that appellants had not complied with OCGA § 36-33-5.

Decided February 4, 1997.

Dwyer, White & Sapp, J. Matthew Dwyer, Jr., Anne W. Sapp, for appellants.

Joe M. Harris, Jr., Charles G. Hicks, Clifford E. Hardwick TV, for appellee.

2. Although appellants’ arguments concerning the failure to assert this issue in the pretrial order seems to have some appeal, the language of OCGA § 36-33-5 (b) requires a different result. “No action shall be entertained by the courts against the municipal corporation until the cause of action therein has first been presented to the governing authority for adjustment.” OCGA § 36-33-5 (b). Thus, ante litem notice is a condition precedent to filing suit against a city (Jones v. City of Austell, supra), and the failure to give such notice cannot be waived as appellants assert. City of Calhoun v. Holland, 222 Ga. 817 (152 SE2d 752).

Accordingly, the trial court did not err by granting the City’s motions for judgment on the pleadings even though this issue was not identified in the pretrial order.

Judgments affirmed.

Beasley and Blackburn, JJ, concur.


text:
    A96A2346.
    BLACKWOOD v. THE STATE.
    (480 SE2d 914)
   Andrews, Chief Judge.

Leroy Blackwood appeals from his conviction of aggravated battery, OCGA § 16-5-24, contending that his trial counsel was ineffective and that the evidence was insufficient to prove the intent required for that offense.

1. We consider the challenge to the sufficiency of the evidence first. In so doing, we view all the evidence in the light most favorable to the verdict, keeping in mind that an appellate court does not weigh the evidence or determine witness credibility, but only determines the legal sufficiency of the evidence under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). Brewer v. State, 219 Ga. App. 16, 17 (1) (463 SE2d 906) (1995).

The indictment charged that Blackwood, on November 22, 1994, “did maliciously cause bodily harm to [victim Smith] by depriving her of an eye, a member of her body; said accused put his fist through a window Ms. Smith was standing in front of at which time the window broke causing glass to fly into [her] left eye.”

Smith and Blackwood had been dating one another, but were estranged about a week before this incident. Blackwood had rented movies the week before and had not returned them because he had gone out of town over the weekend. Around 11:30 or 11:45 p.m. on the evening of November 21, 1994, he went to Smith’s apartment to get the videos. Smith did not have a phone, so the visit was unannounced. Smith had a visitor who left through the rear door of her apartment when she realized Blackwood was knocking at the front door “so there wouldn’t be any confrontations.”

Smith chose not to open the door, but went to a sofa in front of a window adjacent to the door. The window consisted of two side-by-side panes, one of which slid open behind the other. From the inside of the apartment, the open part of the window was to Smith’s right. Smith could look out the window, which was several feet above the ground, and see who was on the front stoop. The window could not be climbed into directly from the ground, but someone on the porch could lean to their left over the railing and be partially in front of the window. Smith kneeled on the sofa and. opened the window, which had no screen. She asked what he wanted, and Blackwood asked for the videos. She told him to leave and go back where he had been over the weekend. The clamp that was used to secure the window fell behind the sofa, and she did not want to leave for fear he would come in the window. Blackwood had his hand on the window keeping it open. Smith then went to the kitchen and got a steak knife thinking that “if I go . . . try to . . . move his hands with the steak knife, I went to the window and I started jigging at his hand.” Blackwood was not cut, but did remove his hand.

At this point, according to Smith, “[Blackwood] . . . went through the window.” Glass shattered and seriously cut her left eye. Asked what part of Blackwood’s body broke the window, she stated that “I saw his hand. I don’t know if it was his fist. I know I saw his arm, his hand, his arm, ... I know I saw him coming towards the window.”

She saw him strike the window, and when asked if it appeared to her that he intentionally put his arm through the window, she answered “[y]es.”

Blackwood testified that “I’m standing at the window and she lunges at me with a knife. By that time this happened so fast I actually tried to jump out of the way but in moving I twist my body real fast and accidently bounce into the window and it broke.”

“On appeal from a criminal conviction, the evidence must be viewed in the light most favorable to the verdict, and the [defendant] no longer enjoys the presumption of innocence; moreover, an appellate court does not weigh the evidence or determine witness credibility but only determines whether the evidence is sufficient under the standard of Jackson v. Virginia, [supra]. Howard v. State, 261 Ga. 251, 252 (403 SE2d 204) [(1991)]; King v. State, 213 Ga. App. 268, 269 (444 SE2d 381) [(1994)].” Dolphus v. State, 218 Ga. App. 565, 566 (462 SE2d 453) (1995).

That there are conflicts and inconsistencies in the testimony of witnesses, including the State’s witness, is a matter of credibility for the jury to resolve. King v. State, 213 Ga. App. 268, 269 (444 SE2d 381) (1994). As long as there is some competent evidence, though contradicted, to support each fact necessary to make out the State’s case, a jury’s verdict will be upheld. Brewer v. State, supra.

The evidence here was sufficient. Dupree v. State, 217 Ga. App. 684 (1) (458 SE2d 698) (1995); Taylor v. State, 178 Ga. App. 817 (1) (344 SE2d 748) (1986).

2. Blackwood contends that his trial counsel was ineffective on several bases.

“A trial court’s finding that a defendant has been afforded effective assistance of counsel must be upheld unless that finding is clearly erroneous. [Cit.]” Garrett v. State, 196 Ga. App. 872, 874 (1) (397 SE2d 205) (1990). A conviction will not be reversed on the basis of ineffective assistance of counsel unless “‘counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.’ ” Carter v. State, 176 Ga. App. 632, 633 (337 SE2d 413) (1985), quoting from Strickland v. Washington, 466 U. S. 668, 669 (104 SC 2052, 80 LE2d 674) (1984).

(a) Blackwood contends counsel was ineffective in not providing written notice to the State of her intent to introduce evidence of prior violent acts of the victim, in failing to present the defense of justification, and in failing to request a jury charge on this defense.

As reflected above, Blackwood testified at the trial that the incident was an accident, that he did not intentionally break the window. He also denied intentionally breaking the window at the hearing on his motion for new trial.

“ ‘The defenses of self-defense and accident are inconsistent. (Cit.)’ Wilkerson v. State, 183 Ga. App. 26, 28 (3) (357 SE2d 814) (1987).” Daniel v. State, 205 Ga. App. 737, 738 (423 SE2d 432) (1992). Trial counsel testified at the hearing that she discussed both justification and accident with Blackwood. Based on Blackwood’s statement of what happened and because Blackwood had previously hit Smith, counsel made the tactical decision not to introduce into evidence Smith’s prior acts against Blackwood for fear they would open the door to his actions against her.

Decided February 4, 1997.

Johnson & Benedict, Richard E. Johnson, for appellant.

Although appellate counsel may disagree with it, such a tactical decision does not equate with ineffective assistance of counsel. Hammond v. State, 264 Ga. 879, 882 (4) (452 SE2d 745) (1995); Strong v. State, 264 Ga. 837 (1) (452 SE2d 97) (1995); Riser v. State, 222 Ga. App. 348, 349 (474 SE2d 632) (1996); Williams v. State, 218 Ga. App. 785, 788 (3) (463 SE2d 372) (1995).

Since the decision to go with the defense of accident was not ineffective assistance, neither was the failure to give notice of justification nor the failure to request a jury instruction on it. Compare Printup v. State, 217 Ga. App. 495 (3) (458 SE2d 662) (1995).

(b) Blackwood also contends that counsel was ineffective in failing to object or reserve objections to the court’s charge and failing to adequately consult with Blackwood.

In addition to the failure to charge on justification, discussed above, Blackwood contends that the court did not adequately charge on intent because no charge was given on the definition of malice, citing Wade v. State, 258 Ga. 324, 330 (11) (d) (368 SE2d 482) (1988).

In Wade, however, the court incorrectly defined “maliciously” during its charge to the jury. Here, the court charged the jury the language of OCGA § 16-5-24 (a), that “a person commits the offense of aggravated battery when he or she maliciously causes bodily harm to another by depriving him or her of a member of his or her body. . . .” There was no error since the court correctly charged the elements of the offense and the State must prove each element beyond a reasonable doubt. Taylor v. State, 178 Ga. App. 817, 818 (2) (344 SE2d 748) (1986).

While Blackwood contends that his trial counsel spent inadequate time preparing his case, counsel testified at the motion for new trial hearing that she was appointed in April 1995, the case was not tried until the next January, and she had spoken with him “many, many times” about the case, including the issues discussed above. Communicating with him was somewhat difficult because he was out on bond and did not give her a correct address or phone number. The State opened its file to trial counsel.

After reviewing the record, the trial court’s conclusion that counsel was not ineffective was not clearly erroneous. Stewart v. State, 263 Ga. 843, 846 (6) (440 SE2d 452) (1994); Linson v. State, 221 Ga. App. 691, 693 (2) (472 SE2d 690) (1996).

Judgment affirmed.

Pope, P. J, and Senior Appellate Judge Harold R. Banke concur.

Robert E. Keller, District Attorney, Todd E. Naugle, Assistant District Attorney, for appellee.

       See generally Farley v. State, 265 Ga. 622 (2) (458 SE2d 643) (1995).


author: Pope, Presiding Judge.

text:
    A96A1886.
    KONDO et al. v. MARIETTA TOYOTA, INC. et al.
    (480 SE2d 851)
   Pope, Presiding Judge.

On or about October 15, 1994, plaintiffs/appellants Masuo and Chiyo Kondo, husband and wife, went to defendant Marietta Toyota Inc.’s dealership (“Marietta Toyota”) to look at cars. Because plaintiffs were Japanese and limited in their ability to read and understand written English, they brought a friend with them to act as interpreter. After plaintiffs selected a 1994 Toyota Previa van, they were taken to the manager’s office to sign paperwork. During that time, they became separated from their interpreter who had gone to another office to help obtain verification of plaintiffs’ automobile insurance.

Although plaintiffs contend it was their belief they were purchasing rather than leasing the vehicle, the document they signed was clearly labeled “Closed End Motor Vehicle Lease Agreement.” The lease agreement required plaintiffs to pay Marietta Toyota, as lessor, a non-refundable cash payment of $4,000 and thereafter 60 monthly payments of $387.44 each, equaling $23,246.40. Thus, the total of plaintiffs’ payments under the lease was $27,246.40. The lease document also specifically provided that Marietta Toyota would be assigning the lease and vehicle to defendant VT Inc., as Trustee for defendant World Omni Financial Corporation (collectively “WOFC”), and plaintiffs acknowledged and agreed to that assignment.

The lease agreement listed the vehicle as “new” but also disclosed that the mileage on the odometer at the time of the transfer was 6,650 miles. This same mileage was listed on the Odometer Disclosure Statement also signed by plaintiffs. Additionally, plaintiffs signed an “Acknowledgment of Disclosure by Dealer of Damage to Motor Vehicle” which stated that the vehicle had been previously damaged and received repairs totaling $1,912.35. The record reveals that although the van had never been titled to any person other than Marietta Toyota, it had been used as a demonstrator by the dealership. The vehicle was being driven by the wife of one of Marietta Toyota’s sales managers at the time it sustained damage.

In May 1995, plaintiffs filed this lawsuit in the State Court of Fulton County, alleging violations of the federal Consumer Leasing Act (Count 1) and the Georgia Fair Business Practices Act (Count 2). After defendants filed their motion for summary judgment, plaintiffs amended their complaint, adding a count seeking rescission of the lease on the grounds of unconscionability (Count 3) as well as a claim for attorney fees and expenses (Count 4). They also filed a motion to strike the only affidavit filed by defendants in support of their motion for summary judgment. The trial court denied plaintiffs’ motion to strike and granted defendants’ motion for summary judgment. Plaintiffs now bring this appeal alleging four enumerations of error.

1. Plaintiffs first allege the trial court erred in ruling that the federal Consumer Leasing Act (“CLA”) did not apply in this case because the total amount of plaintiffs’ payments under the lease was $27,246.40, exceeding the $25,000 jurisdictional ceiling imposed by the Act.

The CLA applies to leases of personal property “for a total contractual obligation not exceeding $25,000. . . .” 15 USCA § 1667 (1). Although the term “total contractual obligation” is not defined in the CLA or in any of its regulations, federal courts have held that with respect to closed-end leases, the term “total contractual obligation” includes the total of all monthly payments due under a vehicle lease as well as any non-refundable cash payments made at the inception of the lease. Easterwood v. General Elec. Capital Auto Lease, 825 FSupp. 306, 310 (N.D. Ga. 1993). See also Sanders v. Gold Key Lease, 906 FSupp. 197 (SDNY 1995).

In this case, plaintiffs’ total contractual obligation consisted of the $4,000 non-refundable cash payment paid at the time they entered into the lease plus $23,246.40 in monthly installments, totaling $27,246.40. “As such, the lease in issue does not come within the reach of the Consumer Leasing Act and, therefore, is not unlawful and void under federal law.” Easterwood v. General Elec. Capital Auto Lease, 825 FSupp. at 310.

We reject plaintiffs’ argument that because Marietta Toyota received the $4,000 cash payment before the assignment of the lease and WOFC will receive the balance of the lease payments totaling $23,246.40 after assignment, two separate contractual obligations were created by the lease document, each coming under the $25,000 ceiling imposed by the CLA. Plaintiffs signed just one document obligating them to pay a total of $27,246.40 for the lease of their van. Marietta Toyota was the original lessor named in the lease and initially entitled to receive plaintiffs’ lease payments but, upon assignment, the right to receive future lease payments vested in WOFC. The assignment from Marietta Toyota transferred title in the lease and vehicle to WOFC (see generally OCGA § 44-12-22; Chattahoochee Holdings v. Marshall, 146 Ga. App. 658 (1) (247 SE2d 167) (1978)) and did not create two separate contractual obligations as alleged by plaintiffs. Accordingly, the trial court did not err in granting summary judgment on Count 1 of plaintiffs’ amended complaint.

2. Plaintiffs next allege the trial court erred in ruling that their van, which was leased to them as “new” but had been driven 6,650 miles and had been involved in a collision, was a “new” car.

Georgia’s Used Motor Vehicle Dealers’ and Used Motor Vehicle Parts Dealers’ Registration Act (OCGA § 43-47-1 et seq.) defines a “used motor vehicle” or “used car” as “any motor vehicle or car other than a motor vehicle which has never been the subject of a retail sale by a new motor vehicle dealer or a used motor vehicle dealer and which is the subject of a retail sale to a consumer for his or her own use or of a resale to another licensed dealer.” OCGA § 43-47-2 (16). The Georgia statute that governs the identification of and purchase and resale of motor vehicles and parts (OCGA § 40-4-1 et seq.) defines a “new passenger car” as “any passenger car which has never been the subject of a sale at retail to the general public.” OCGA § 40-4-1 (2). And the Georgia Motor Vehicle Warranty Rights Act (OCGA § 10-1-780 et seq.) considers a “new motor vehicle” as one “that was leased or purchased in this state or registered by the original consumer in this state and on which the original motor vehicle title was issued to the lessor or purchaser without having been previously issued to any person other than the selling dealer. . . . The term ‘new motor vehicle’ includes a demonstrator or lease-purchase, as long as a manufacturer’s warranty was issued as a condition of sale, unless specifically excluded under this definition.” OCGA § 10-1-782 (11).

Because plaintiffs’ van was always titled in Marietta Toyota and was never before the subject of a retail sale or lease to a consumer, it clearly fit the statutory definition of a “new car” under Georgia law. Therefore, Marietta Toyota did not engage in a fraudulent or unfair business practice by listing the vehicle as “new” on the lease agreement. See Toirkens v. Willett Toyota, 192 Ga. App. 109, 110 (1) (384 SE2d 218) (1989).

Relying on Bennett v. D. L. Claborn Buick, 202 Ga. App. 308 (2) (414 SE2d 12) (1991), plaintiffs argue that notwithstanding the foregoing statutory provisions, the question of whether the vehicle delivered to plaintiffs was “new” was one of fact for the jury because “it may be considered an intrinsic quality of a car sold as new that it has been neither damaged nor used to any significant extent.” (Citations, punctuation and emphasis omitted.) Bennett at 309. However, in Bennett, the vehicle at issue was represented by the sales person to be “new” in the sense of it never having been significantly driven, and the plaintiffs in that instance had no actual knowledge that the vehicle had been used as a demonstrator. In this case, the vehicle leased by plaintiffs was not represented to be “new” in the sense of it not having been damaged nor used to any significant extent. Rather it was listed as “new” in compliance with Georgia law because the vehicle had not been the subject of a previous sale or lease. Additionally, in this case, plaintiffs signed three separate documents stating the exact extent of the vehicle’s previous use and the extent of the collision damage that resulted from that use. Under these circumstances, we find that the trial court did not err in dismissing plaintiffs’ claims under the Georgia Fair Business Practices Act. See Henderson v. Martin Burks Chevrolet, 183 Ga. App. 868 (1) (360 SE2d 430) (1987).

3. Plaintiffs next allege the trial court erred when it denied their motion to strike the only affidavit submitted by defendants in support of their motion for summary judgment. However, plaintiffs’ argument that the affidavit was defective because it did not specifically recite that it was made from the affiant’s personal knowledge is without merit.

Defendants presented the sworn statement of Marietta Toyota’s general manager setting forth his title and responsibilities and attaching those documents relevant to plaintiffs’ leasing of the vehicle. The affidavit specifically recited that each of the documents in question was made and kept in the ordinary course of business of Marietta Toyota. “Since OCGA § 24-3-14 (b) specifically provides that a proper business record is ‘admissible in evidence in proof of the act, transaction, occurrence, or event’. . ., we find no merit in [plaintiffs’] argument that [defendants’] affidavit was insufficient because it failed to reflect the affiant’s personal knowledge [of this lease transaction].” Intl. Business Consulting v. First Union Nat. Bank of Ga., 192 Ga. App. 742, 743 (386 SE2d 400) (1989). Additionally, the information contained in the affidavit is consistent with and cumulative of deposition testimony and other evidence contained in the record and was uncontroverted by plaintiffs. Therefore, it was not error for the trial court to deny plaintiffs’ motion to strike the affidavit. Lott v. Liberty Mut. Ins. Co., 154 Ga. App. 474 (2) (268 SE2d 686) (1980).

4. Plaintiffs lastly argue the trial court’s grant of summary judgment on Count 3 of plaintiffs’ amended complaint alleging unconscionable conduct under OCGA § 11-2A-108 was premature because the amended complaint was filed just two days before the hearing on defendants’ original motion for summary judgment, and the issue of unconscionability had not been briefed by the parties.

“[U]nless the record unequivocally demonstrates that the nonmovant’s defenses to the motion are wholly meritless and frivolous or the non-movant fails to raise the procedural defect at the hearing . . . the trial court’s entry of an order on the motion [for summary judgment] prior to the expiration of thirty days from its service is reversible error, even though the trial court may ultimately determine on renewed motion that the movant is entitled to summary judgment.” (Emphasis supplied.) Dixon v. Midland Ins. Co., 168 Ga. App. 319, 320 (2) (309 SE2d 147) (1983).

Decided January 13, 1997

Reconsideration denied February 5, 1997

Phillip J. Walsh, for appellants.

Awtrey & Parker, Toby B. Prodgers, Robert B. Silliman, Harvey D. Harkness, Levine & Block, Stephen H. Block, for appellees.

Our review of the transcript of the hearing reveals that when defendants’ counsel asked the court to grant summary judgment on all counts contained in plaintiffs’ amended complaint, plaintiffs’ attorney failed to raise any objections and instead chose to argue the merits of the unconscionability claim. We find, therefore, that plaintiffs have waived any defect as to the timeliness of the granting of summary judgment on their amended complaint. See Mobley v. Coast House, 182 Ga. App. 305, 309 (355 SE2d 686) (1987).

Accordingly, we need not address the merits of plaintiffs’ unconscionability claim or the jurisdiction of the State Court to grant the relief sought by plaintiffs in Count 3 of the amended complaint.

Judgment affirmed.

Andrews, C. J, and Smith, J., concur.


text:
    A96A2106.
    DOE v. DEPARTMENT OF CORRECTIONS.
    (481 SE2d 837)
   Order of Court.

Appellant Jane Doe No. 102 brought this action under the Georgia Tort Claims Act, OCGA § 50-21-20 et seq., claiming personal injuries arising out of the alleged mistreatment of inmates at the State Women’s Prison at Hardwick in Baldwin County. Among other grounds of appeal, she asserts that OCGA § 50-21-28, the portion of the 1992 Georgia Tort Claims Act which places venue in the state or superior court of the county where the loss occurred, is in direct conflict with the venue provisions of Ga. Const., Art. VI, Sec. II, Par. VI, placing venue in the county where the defendant resides. The Supreme Court has exclusive appellate jurisdiction of such an issue. Ga. Const., Art. VI, Sec. VI, Par. II (1). Beauchamp v. Knight, 261 Ga. 608, 609-610 (409 SE2d 208) (1991), cited by Doe, is inapposite because that decision involved the Supreme Court’s general equity jurisdiction, Ga. Const., Art. VI, Sec. VI, Par. III (2), not its exclusive jurisdiction to rule on the constitutionality of statutes.

The question was properly raised and preserved in the trial court, to the extent that Doe could do so, which is a prerequisite to consideration of such an issue on appeal. Hardison v. Haslam, 250 Ga. 59, 61 (3) (295 SE2d 830) (1982); Walker v. Hall, 226 Ga. 68, 69 (172 SE2d 411) (1970). Doe did everything she could to obtain a ruling on the question of venue even before it was raised by the Department’s motion. She filed three separate pleadings on the issue of venue, including two briefs addressing her constitutional claims. In those pleadings, Doe has shown the challenged part of the statute with fair precision, she has shown the provision of the constitution which she claims is violated by the statute, and she has shown how the statute violates the constitutional provision, thus fulfilling the requirements of Blackston v. Dept. of Natural Resources, 255 Ga. 15, 18 (334 SE2d 679) (1985).

This case does not appear to fall within any of the grounds for jurisdiction in the Court of Appeals as enumerated in Atlanta Independent School System v. Lane, 266 Ga. 657, 658 (1) (469 SE2d 22) (1996). The Fulton County trial court’s preprinted form order transferring the case, and the Baldwin County trial court’s order adopting the earlier order, necessarily found OCGA § 50-21-28 constitutional, although they did not expressly so state. This is not a case in which the trial court did not “distinctly pass” upon an issue of constitutionality because it based its decision upon alternative grounds and thus found it unnecessary to reach the constitutional question. See, e.g., Ga. Bd. of Dentistry v. Pence, 223 Ga. App. 603, 604 (1) (478 SE2d 437) (1996). Nor is this a case in which the constitutional issue became moot. See, e.g., In the Interest of I. B., 219 Ga. App. 268, 269 (464 SE2d 865) (1995). Nor has the constitutional issue been previously resolved by the Supreme Court, as this is a case of first impression involving a newly enacted statute. Compare Hoffman v. Dept. of Corrections, 218 Ga. App. 363 (460 SE2d 882) (1995) (decision prior to enactment of OCGA § 50-21-28). This is a significant and clearly presented constitutional conflict with a recently enacted statute, appropriate for resolution by the Supreme Court rather than this Court.

Accordingly, it is hereby ordered that this case be transferred to the Supreme Court.