text:
    A01A2455.
    DIKEMAN v. MARY A. STEARNS, P.C.
    (560 SE2d 115)
   Miller, Judge.

A law firm sued a client to collect unpaid legal invoices. Claiming the firm’s invoices were inflated, the client refused to pay and asserted a Georgia Racketeer Influenced & Corrupt Organizations (RICO) Act counterclaim on the ground that two predicate acts of overbilling through the mail existed. The court (1) refused to compel the firm to produce documents reflecting its billings to other clients, (2) entered summary judgment in favor of the firm on the RICO counterclaim, and (3) ordered the parties to mediate. Inasmuch as that the client’s challenges to these three orders are meritless, we affirm.

Sidney Dikeman paid only a portion of the legal invoices of Mary A. Stearns, P.C., the firm that represented Dikeman in a divorce action. When Stearns sued to recover the outstanding fees, Dikeman contended that the invoices were inflated and counterclaimed under federal and Georgia RICO law that Stearns had committed acts of mail fraud by sending inflated invoices through the mail to her and others.

Dikeman propounded discovery seeking information on other clients of Stearns. When Stearns objected, Dikeman moved to compel, and Stearns in turn moved for a protective order. Stearns also requested discovery of those documents Dikeman intended to use as evidence at trial, which request became a subject of a motion to compel by Stearns. The court ruled in Stearns’s favor on all these discovery issues.

Stearns moved for summary judgment on Dikeman’s RICO counterclaim, which the court granted on the ground that Dikeman did not show evidence of two predicate acts. The court also ordered the parties to engage in mediation. Dikeman appeals the discovery, summary judgment, and mediation orders.

1. We review the court’s discovery order under an abuse of discretion standard. “The trial courts have broad discretion to determine what is and what is not discoverable, and this court will not interfere with those decisions absent a clear abuse.”

(a) Information Regarding Other Clients. The first portion of the discovery order concerns Dikeman’s attempt to obtain information about Stearns’s bills to other clients. Interrogatories sought the names and addresses of all of Stearns’s clients receiving bills at any time during a 16-month period as well as the invoice numbers of all those bills. Requests to produce sought Stearns’s calendars, timekeeping computer database, a full and complete copy of the hard drive of Stearns’s computers that generated documents pertaining to Dikeman, copies of all bills sent by Stearns to any client since January 1999, and all documents or notes reflecting communications within the firm. Finally, Dikeman asked Stearns to list and describe each individual photocopy Steams made and billed to Dikeman as well as the number of photocopies billed to all clients, on a per day and per photocopier basis, over a five-month period.

The trial court found these discovery requests to be overbroad, oppressive, and annoying and to require undue burden and expense. The court also found that the requests invaded privacy expectations of Stearns’s other clients. We discern no abuse of discretion. Beyond the overreaching nature of these requests, “[c]ertainly the competing interest in an individual’s right to privacy must be accommodated in the discovery process.” As this is particularly true where the information pertains to nonparties, confidentiality concerns may justify protecting other clients’ bills, not specifically related to the asserted cause of action, from discovery.

(b) Documents to be Used at Trial. In the next portion of the discovery order, the court required Dikeman to produce those documents she intended to use at trial. Citing E. H. Siler Realty &c. v. Sanderlin, Dikeman urges that this request was overbroad. Since Sanderlin, however, the Uniform Superior Court Rules became effective and require all parties as part of the pre-trial order to list “all documentary and physical evidence that will be tendered at the trial.” The trial court did not clearly abuse its discretion in requiring the production of this same evidence during discovery.

2. The court’s summary judgment order dismissing the RICO counterclaim focused on Dikeman’s inability to present evidence of two predicate acts. Dikeman freely admits that she has no such evidence. Whether under the Georgia or federal RICO Act, this defect is fatal. Dikeman’s post-summary judgment attempt to recharacterize the counterclaim as a common law claim for fraud is ineffectual.

Dikeman also claims that in its summary judgment order, the court should have declared the written attorney fees contract between her and Stearns unenforceable. Specifically, Dikeman argues that a provision, in which she waives her right to contest invoice amounts unless she complains in writing within 30 days of billing, is unconscionable. We have previously stated that parties are free to agree to such and have upheld this provision in a legal services contract; we see no reason to vary from that conclusion here.

Decided February 11, 2002

Vincent D. Sowerby, for appellant.

Mary A. Stearns, Christy E. Draper, for appellee.

3. Dikeman claims the court had no authority to order her to participate in a mediation. Effective April 15, 1993, however, the Alternative Dispute Resolution Rules promulgated by the Supreme Court of Georgia provide that “the parties may be ordered to attend a mediation session. . . ,” The court was therefore authorized to order the parties to attempt mediation.

Judgment affirmed.

Andrews, P. J, and Eldridge, J., concur.

       (Citations omitted.) Apple Investment Properties v. Watts, 220 Ga. App. 226, 227 (1) (469 SE2d 356) (1996); see Hudgins v. Bawtinhimer, 196 Ga. App. 386, 390 (5) (395 SE2d 909) (1990).

       (Citation and punctuation omitted.) E. H. Siler Realty &c. v. Sanderlin, 158 Ga. App. 796, 797 (1) (282 SE2d 381) (1981).

       See Hudgins, supra, 196 Ga. App. at 390 (5); Reece v. Selmonosky, 179 Ga. App. 718-719 (2) (347 SE2d 649) (1986).

       Supra, 158 Ga. App. at 798 (2).

       Uniform Superior Court Rule 7.2, Par. 14; see Uniform State Court Rules, which adopt the Uniform Superior Court Rules as applicable in state courts with only a few exceptions that do not pertain to Rule 7.2.

        Sedima, S.P.R.L. v. Imrex Co., 473 U. S. 479, 497, n. 14 (105 SC 3275, 87 LE2d 346) (1985); Mullen v. Nezhat, 223 Ga. App. 278, 282 (3) (477 SE2d 417) (1996).

       Cf. City of Atlanta v. Jackson, 263 Ga. 426, 428 (6) (435 SE2d 212) (1993).

        Loveless v. Sun Steel, 206 Ga. App. 247, 249 (2) (424 SE2d 887) (1992).

       Aternative Dispute Resolution Rule I (defining “Mediation”); see also id., Appendix A, Rule 2.6.


source: Caselaw Access Project

author: Miller, Judge.

license: Public Domain

text:
    A01A2479.
    SMART v. THE STATE.
    (560 SE2d 92)
   Miller, Judge.

Following a jury trial, Samuel Smart was convicted of possession of cocaine with intent to distribute and sentenced as a recidivist to life without parole. He asserts 25 enumerations of error on appeal, including arguments that the evidence was insufficient to sustain his conviction and that his trial counsel was ineffective. We discern no reversible error and affirm.

Viewed in the light most favorable to the verdict, the evidence reveals that on November 4, 1997, the police used a confidential informant to perform a controlled buy of suspected cocaine at a local lounge. Smart was identified as the person who sold a white powdery substance to the confidential informant at the bar. Based on the information gathered by the informant, the police obtained a search warrant and returned to the lounge on November 25 to investigate suspected drug activity. The police found Smart in the back room of the club with several other men who were gambling. Smart was standing near a cigar box as if he were trying to protect it and its contents. The police found a marijuana cigarette on top of the cigar box and 19 bags of cocaine and $32 inside the box. The police also found $700 on Smart and then arrested him.

While Smart was out on bond, the police conducted additional controlled buys from him through confidential informants and on September 16, 1998, executed a search warrant for Smart’s home. The police found Smart in his bedroom and a bag of cocaine that was wrapped in the same manner as the bags that were found in the cigar box at the lounge on November 25. The cocaine had a street value of $700, and police testimony later revealed that the drugs were more likely to be used for distribution than personal use. Eight hundred thirty-two dollars and a digital scale were also found on Smart’s nightstand. Smart was arrested and charged with possession of cocaine with intent to distribute.

Prior to trial, Smart moved to suppress the evidence found in the cigar box because he was not the owner of the lounge. The State argued that because Smart alleged that he did not own the bar, he did not have standing to challenge the seizure of any evidence from the lounge. The trial court agreed and dismissed Smart’s motion to suppress.

The State also moved for the admission of similar transaction evidence based on the September 16 arrest at Smart’s home. The trial judge admitted this evidence over objection from defense counsel for the limited purpose of showing bent of mind or course of conduct.

At trial, the State presented evidence that Smart owned the lounge, and defense counsel did not object to the presentation of this evidence. The State also presented evidence that Smart had been seen several times at the bar, as if he were the manager or owner, and that Smart even asked someone at the bar to lock up the bar for him on the night that he was arrested. The judge later charged the jury on reasonable doubt and the inference of possession for drugs found on premises owned or leased by the defendant, again with no objection from defense counsel.

The search warrants for the lounge and Smart’s residence were allowed to go to the jury room during deliberations. Defense counsel did not object to this evidence going out with the jury. The jury returned a guilty verdict against Smart for possession of cocaine with intent to distribute.

At the sentencing hearing, the State introduced evidence of four prior felony guilty pleas to satisfy the recidivist count of the State’s case. The voluntariness questions for three of the guilty pleas were covered in one transcript, as the guilty pleas for all three of these felonies were taken on the same day in 1985. Although the indictment numbers for all three felonies were listed on the single list of voluntariness questions, the list was attached to only two of the three actual indictments for these offenses. Defense counsel objected only to the admission of the one conviction that did not have the list of voluntariness questions attached. The court allowed the admission of all of the prior felonies in aggravation of Smart’s sentence.

The State then argued that Smart should be sentenced as a recidivist to life without parole pursuant to OCGA § 17-10-7 (c). The court informed Smart that, as a recidivist, he would have to serve his sentence without parole pursuant to OCGA § 17-10-7, and that pursuant to OCGA § 16-13-30, he was being sentenced to life.

New counsel for Smart filed a motion for new trial, in which he argued that his trial counsel was ineffective and that the trial court erred in its jury charges and its use of Smart’s prior convictions in aggravation of his sentence. After a hearing, the court denied the motion, and this appeal followed.

1. Smart claims that the trial court erred by dismissing his motion to suppress due to lack of standing. We disagree.

Rights conferred by the Fourth Amendment are personal in nature, and a person who does not have a reasonable expectation of privacy in the place to be searched is not afforded vicarious protection. “When an individual has no ownership or possessory interest in the premises, the individual has no expectation of privacy, and therefore, lacks standing to challenge the validity of a search.”

Smart argued that he did not own the bar that was searched and therefore essentially conceded that he lacked standing to challenge the seizure of evidence from the bar. Indeed, even if the trial court erred in dismissing Smart’s motion to suppress, such error was induced by Smart’s own actions in arguing that he did not own the bar, and he will not be heard to complain of the results here.

2. Smart argues that the trial court erred by allowing the State to argue at the motion to suppress hearing that Smart did not own the lounge, but later to argue at trial that Smart was in fact the owner. As noted in Division 1, it was not the State, but rather Smart, who argued at the motion to suppress hearing that he did not own the bar. In any case, Smart failed to object to the State’s presentation of evidence or argument at trial that Smart owned the bar and has therefore failed to preserve this issue for appellate review.

3. In two enumerations, Smart asserts that the trial court erred in its charges on reasonable doubt and the inference of possession for drugs found on premises owned or leased by the defendant. Smart failed to object or reserve objections to these charges at trial and has therefore presented nothing for this court to review.

4. In enumerations of error 4, 5, and 6, Smart alleges that the trial court erred by admitting evidence of the November 4,1997 controlled buy at the lounge and the September 16, 1998 arrest at Smart’s residence as similar transactions. We disagree.

As an initial matter, we note that the November 4 incident was not admitted as a similar transaction. It was admitted as evidence of a controlled buy at the lounge that led to the issuance of a search warrant. In any event, Smart did not object to the admission of this evidence at the time that it was introduced and has therefore presented nothing for this court to review on appeal.

With respect to the September 16 incident, evidence of similar drug crimes is admissible to show bent of mind or course of conduct. A judge’s decision to admit such transactions will not be disturbed on appeal absent an abuse of discretion. Smart does not argue that the September 16 incident was admitted for an improper purpose, but that the incident was not sufficiently similar to the offense charged in this case because the arrest took place at a residence rather than a place of business. We disagree.

The two incidents need not be identical for the similar transaction to be admissible. We do not simply test for the number of similarities, because similar transaction evidence may be admitted if it is substantially relevant for some purpose other than to show a likelihood that the defendant committed the crime on trial because he is a person of criminal character. Here, both incidents involved the police gathering information through controlled buys with confidential informants, Smart having large amounts of cash at the time of his arrest, and cocaine being packaged in a similar manner. The incidents were similar enough to show Smart’s method of conducting the business of distributing cocaine, and we find no abuse of discretion from the trial court admitting it.

5. In his seventh, eighth, and ninth enumerations, Smart argues that the trial court erred by sentencing him to life without parole. More specifically, he contends that because the court did not specifically mention that it was sentencing him pursuant to OCGA §§ 17-10-7 (c) and 16-13-30 (d), it must have erroneously sentenced him pursuant to OCGA §§ 17-10-7 (a) and 16-13-30 (d). Smart further argues that the trial court did not exercise proper discretion in sentencing him and misled him into believing that he could receive a lighter sentence. We find these arguments to be without merit.

The burden is on appellant to show error affirmatively from the record, and we will not presume error where the record is silent. The record does not indicate that the trial judge sentenced Smart pursuant to OCGA § 17-10-7 (a) instead of § 17-10-7 (c), only that the judge sentenced him pursuant to OCGA § 17-10-7. We will not assume that the judge intended to sentence Smart pursuant to subsection (a) instead of subsection (c), and Smart has not shown otherwise from the record.

Moreover, the record reveals that Smart was informed of the possibility of receiving life without parole before his case went to trial. As a recidivist with a prior conviction for possession of cocaine with intent to distribute, the judge was authorized to sentence Smart to life pursuant to OCGA § 16-13-30 (d). With five total felony convictions, the judge was authorized to require Smart to serve his sentence without parole pursuant to OCGA § 17-10-7 (c). We find no error here.

6. In his tenth and eleventh enumerations, Smart argues that the trial court erred by using his previous felony convictions to enhance his sentence because no factual basis existed for these prior felonies and Smart had not been informed of the maximum and minimum sentences associated with these prior felonies. Since Smart objected below only to the admission of the prior conviction that did not have a list of voluntariness questions attached to it, he has waived his arguments on appeal related to the other convictions used to enhance his sentence. We will therefore address only the admission of the one prior conviction that did not have a list of voluntariness questions attached.

An invalid guilty plea under Boykin v. Alabama cannot be used to enhance punishment in a subsequent trial, and after the defendant has raised an issue regarding the intelligent and voluntary waiver with respect to the prior guilty plea, the State then bears the burden to establish a valid waiver.

Although one of the 1985 convictions used to enhance Smart’s sentence did not have a list of voluntariness questions attached to it, the voluntariness questions themselves listed the indictment number of this conviction and two others, indicating that the questions covered all three of the pleas that Smart entered that day. The questions and answers indicated that Smart understood the nature of his plea and that he was waiving his right to a trial by jury, his right to cross-examine his accusers, and his right against self-incrimination. We find that the trial court did not err in concluding that this prior guilty plea was made knowingly and voluntarily.

Even if the trial court erred in admitting this prior conviction for sentencing purposes, such error would have been harmless because the sentence imposed would still have been authorized even without the admission of this conviction. Smart’s current conviction for possession of cocaine with intent to distribute was his second for that offense, and even if only two of the remaining three prior felony convictions used to enhance his sentence had been admitted, Smart still would have had the requisite number of felony convictions to authorize a sentence of life without parole.

7. Smart contends in his thirteenth enumeration that the evidence was insufficient to sustain his conviction. We disagree.

On appeal from a criminal conviction, we view the evidence in the light most favorable to the jury’s verdict, and the defendant no longer enjoys the presumption of innocence. We do not weigh the evidence or determine witness credibility, but only determine if the evidence was sufficient for a rational trier of fact to find the defendant guilty of the charged offense beyond a reasonable doubt.

The evidence here reveals that Smart was the only person exercising control over the cigar box containing the 19 bags of cocaine. The State also presented evidence that Smart may have had a possessory interest in the bar where the drugs were found. In addition, Smart was found carrying large amounts of cash, and the arresting officer testified that in his experience the amount of cocaine found was more than is normally used for personal use. Furthermore, the jury was authorized to consider the September 16 similar transaction as evidence of Smart’s bent of mind or course of conduct. The evidence was sufficient to sustain the conviction.

8. Smart contends in two enumerations that the trial court erred by allowing search warrants of his residence and the lounge to go out with the jury during deliberations. Smart failed to object to this evidence going out with the jury and has therefore failed to preserve these issues for appellate review.

9. Smart argues in his seventeenth enumeration of error that the trial court erred by allowing the State to present a transcript of voluntariness questions at his sentencing hearing that allegedly related to only one of the three indictments listed on the questions. However, since Smart raises this issue for the first time on appeal, we will not consider it here.

10. All of Smart’s remaining enumerations relate to his contention that his trial counsel was ineffective. More specifically, Smart argues that his trial counsel was ineffective because (a) he failed to object to the introduction of the prior convictions used to enhance Smart’s sentence on the bases asserted in this appeal (enumerations of error 16 and 23), (b) he failed to subpoena a witness who would have testified that she owned the lounge (enumeration of error 18), (c) he failed to introduce into evidence a videotape of the lounge made after Smart’s arrest (enumeration of error 19), (d) he failed to introduce evidence that someone other than Smart owned the cigar box found at the lounge (enumeration of error 20), (e) he advised Smart not to testify (enumeration of error 21), (f) he failed to object to the jury charges on reasonable doubt and the inference of possession for drugs found on premises owned or leased by the defendant (enumerations of error 22 and 25), and (g) he failed to obtain the name of the confidential informant who conducted the November 4, 1997 controlled buys at the lounge (enumeration of error 24).

To prove ineffective assistance, Smart was required to show that counsel’s performance was deficient and that this deficient performance prejudiced his defense. The trial court’s determination with respect to counsel’s effectiveness will be upheld on appeal unless clearly erroneous. Evidence supported the trial court’s finding that Smart did not meet his burden of showing deficient performance or prejudice based on his counsel’s actions.

(a) Trial counsel testified that he reviewed the prior convictions with Smart to ensure that the prior pleas were made voluntarily. Even Smart himself testified at the motion for new trial hearing that his prior pleas were made voluntarily. Further, as we held in Division 6, the evidence presented at the sentencing hearing supports the conelusion that Smart’s prior pleas were made voluntarily. Since there was no basis for a valid objection to the introduction of these prior convictions for sentencing purposes, we find that evidence supports the trial court’s conclusion that Smart did not meet his burden of proving ineffective assistance.

(b) The evidence reveals that trial counsel spoke with Smart about what witnesses to call, although he had no specific recollection of a conversation about a witness who was in prison and who was the alleged owner of the lounge. Strategic decisions regarding what witnesses to call after consultation with the client are virtually unchallengeable and do not amount to ineffective assistance. Moreover, trial counsel extensively cross-examined the State’s witnesses to raise the issue that someone other than Smart owned the lounge, countering the inference that the failure to call this other witness resulted in any prejudice to Smart. We hold that the trial court did not clearly err in concluding that Smart failed to meet his burden of showing ineffective assistance here.

(c) Trial counsel testified that he would have discussed the use of any videotape with Smart. Further, the trial transcript reveals that the contents of the videotape were the same as what was reflected in the pictures taken at the crime scene on the night of Smart’s arrest. Thus, the evidence was cumulative. The trial transcript further reveals that the decision to cross-examine the State’s witness on the absence of the video at trial rather than move for the inclusion of the video could have been a strategic one. Strategic and tactical decisions are the exclusive province of the attorney after consultation with the client. We hold that evidence supports a finding that Smart has failed to show deficient performance or prejudice based on his counsel’s actions.

(d) Trial counsel discussed with Smart the possibility that another person owned the cigar box found in the lounge. However, Smart failed to give his attorney the address of this person to enable his counsel to subpoena the witness. In addition, trial counsel cross-examined State’s witnesses in order to raise the possibility that someone other than Smart could have been selling the drugs in the cigar box. Again, strategic decisions regarding what witnesses to call after consultation with the client are virtually unchallengeable. The evidence supports a finding that trial counsel’s performance was not deficient and that his actions did not prejudice Smart’s defense.

(e) Trial counsel testified that he discussed with Smart the pros and cons of Smart testifying, and Smart informed his trial counsel that he did not want to testify at trial. The decision for Smart not to testify was a strategic one made after consultation between Smart and his attorney, and we hold that the trial court did not clearly err in determining that Smart did not carry his burden to show ineffective assistance.

Decided February 11, 2002

Mark J. Nathan, for appellant.

Spencer Lawton, Jr., District Attorney, Christine S. Barker, Assistant District Attorney, for appellee.

(f) The State presented evidence that Smart may have had some possessory interest in the bar in which the drugs were found, which could* have authorized a charge on the inference of possession of drugs found on premises owned or leased by the defendant, or at the very most resulted in harmless error from such a charge. Further, viewing the charge as a whole, we find that the court properly charged the jury on reasonable doubt. Therefore, the failure to object to the jury charge does not amount to ineffective assistance. Accordingly, we hold that the trial court did not clearly err in concluding that Smart has not shown ineffective assistance here.

(g) Smart was arrested for possession of cocaine with intent to distribute based on the cocaine that was found in a cigar box in the back room of the lounge, and not based on any of the controlled buys done by the confidential informant. The confidential informant did not participate in any way in the transaction upon which Smart’s conviction was based. Since the identity of the confidential informant was irrelevant to the issue of Smart’s guilt or innocence for the charged offense, we hold that evidence supports the trial court’s ruling that Smart has not shown ineffective assistance here.

Judgment affirmed.

Andrews, P. J., and Eldridge, J., concur.

        Thomas v. State, 274 Ga. 156, 159 (3) (549 SE2d 359) (2001).

       (Citations omitted.) Id.

       See, e.g., Hathaway v. State, 241 Ga. App. 790 (1) (527 SE2d 894) (2000) (“One cannot complain of a judgment, order, or ruling that his own procedure or conduct procured or aided in causing”) (punctuation and footnote omitted).

       See, e.g., McRae v. State, 252 Ga. App. 100, 102-103 (3) (555 SE2d 767) (2001) (“A party cannot during the trial ignore what he thinks to be an injustice, take his chance on a favorable verdict, and complain later”) (punctuation and footnote omitted).

        Spear v. State, 270 Ga. 628, 631 (5) (513 SE2d 489) (1999).

       See Durrance v. State, 250 Ga. App. 185 (1) (549 SE2d 406) (2001) (“Objections presented for the first time on appeal furnish nothing for us to review, for this court is a court for correction of errors of law committed by the trial court where proper exception is taken”) (punctuation and footnote omitted).

       See Gay v. State, 233 Ga. App. 738, 740 (3) (505 SE2d 29) (1998).

       Id.

        Nesbitt v. State, 215 Ga. App. 271, 272 (1) (450 SE2d 310) (1994).

       See id.

       See Merrill v. State, 201 Ga. App. 671, 672 (1) (411 SE2d 750) (1991).

       See Moore v. State, 181 Ga. App. 548, 549 (2) (352 SE2d 821) (1987).

       395 U. S. 238 (89 SC 1709, 23 LE2d 274) (1969).

        Postell v. State, 238 Ga. App. 79, 80 (2) (517 SE2d 789) (1999); Miller v. State, 214 Ga. App. 393, 394 (2) (448 SE2d 20) (1994).

       See Postell, supra, 238 Ga. App. at 80 (2).

       See OCGA §§ 16-13-30 (d); 17-10-7 (c).

        Short v. State, 234 Ga. App. 633, 634 (1) (507 SE2d 514) (1998).

       Id.; see also Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

       See, e.g., Jackson v. State, 246 Ga. App. 133, 134 (1) (539 SE2d 849) (2000); Gay, supra, 233 Ga. App. at 741 (5).

       See White v. State, 137 Ga. App. 9, 10 (1) (223 SE2d 24) (1975) (“An enumeration of error complaining of admission of evidence or of documents going out with the jury presents nothing for decision by this court where no objection was made at the trial.”) (citations omitted).

        Moore, supra, 181 Ga. App. at 549 (2).

        Ellison v. State, 242 Ga. App. 636, 638 (7) (530 SE2d 524) (2000), citing Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984).

        Jackson v. State, 209 Ga. App. 53, 56 (7) (432 SE2d 649) (1993).

        Mack v. State, 242 Ga. App. 256, 258 (2) (c) (529 SE2d 393) (2000).

        Joiner v. State, 245 Ga. App. 415, 416 (2) (537 SE2d 792) (2000).

        Mack, supra, 242 Ga. App. at 258.

       See Hamilton v. State, 274 Ga. 582, 589 (13) (555 SE2d 701) (2001).

       See McGinnis v. State, 208 Ga. App. 354, 355-356 (3) (430 SE2d 618) (1993).

       See Roberson v. State, 236 Ga. App. 654, 655 (1) (a) (512 SE2d 919) (1999).

       See id. at 656 (2).

       Cf. Gant v. State, 197 Ga. App. 351, 352-353 (3) (398 SE2d 301) (1990).


author: Pope, Presiding Judge.

text:
    A01A2538.
    HILL v. THE STATE.
    (560 SE2d 88)
   Pope, Presiding Judge.

Paul Gregory Hill appeals following his conviction on one count of trafficking in methamphetamine.

Viewed in the light most favorable to the verdict, the evidence showed that Hill rented a trailer in a small, secluded trailer park in Crawford County. At one point, his next-door neighbors and their visitors began to notice an unusual ammonia or ether smell coming from Hill’s trailer and saw a lot of cars going in and out of the area of the trailer. Hill was seen at his trailer on at least one occasion when this peculiar odor was present. On another occasion, Hill told one of the neighbors that he had “cooked” “crystal meth,” and explained the amount of profit he received from making the drug. The neighbors contacted Harry Colbert, a drug enforcement officer with the Bibb County Sheriff’s Department, about the situation and began helping him by recording tag numbers from the cars going in and out. The neighbors also paged Colbert whenever they noticed the odor from Hill’s trailer.

On December 30, 2000, the neighbor’s brother and his wife smelled the ammonia/ether odor. The brother later became involved in an altercation with a visitor to Hill’s trailer. The neighbors reported the incident to the Crawford County Sheriff’s Department, and they also called Officer Colbert. They then told Hill’s minor son that the police were on the way, and the son and two young girls began removing items from the trailer and putting them in the woods. Among the items was at least one large glass pickle jar. The neighbors later directed Officer Colbert to where Hill’s son and the others had placed these items. The officer retrieved a large pickle jar and empty starter fluid cans with holes in the bottom of them from those locations. The glass jar contained a white residue.

Officer Colbert also collected metal pots and additional jars from around Hill’s trailer and observed more starter fluid cans with holes in them lying under the trailer. The pots contained a dried residue, which appeared to be from where something had been cooked in them. The pots also bore the odor the neighbors had previously noticed. In addition, the neighbor’s brother discovered syringes and boxes of Sudafed in a common driveway, which he turned over to police.

None of the witnesses saw Hill at his home at the time of these events, but Hill’s van was parked nearby.

At trial Officer Colbert testified that a popular method of manufacturing methamphetamine called “cold cooking” involves the use of Sudafed and starter fluid, among other substances. He noted that it is common to punch a hole in the bottom of starter fluid cans to let all the liquid drain out of the can for use in the process. There was also evidence that Hill’s property contained a propane tank, the spigot of which showed signs that anhydrous ammonia had been stored there. Anhydrous ammonia is another ingredient commonly used in the cold cooking process.

At trial, Officer Colbert testified that the glass jars from in and around Hill’s property contained a liquid, with a solid white substance in the bottom which appeared consistent with the methamphetamine manufacturing process. He took them back to his office to allow them to dry out so the substance could be tested for methamphetamine. In addition, he scraped down the sides of the metal pots and collected the scrapings. Once the residue from the pickle jars dried out, Officer Colbert combined the materials from both the jars and the metal pots into the same bag for testing. These materials tested positive for methamphetamine and had a combined weight of 90.5 grams.

1. Hill first contends that the trial court erred in denying his motion for directed verdict and motion for new trial on the ground of equal access. He asserts that there was no proof directly linking him to any methamphetamine, noting that all the containers were found outside of his home, where anyone could have had access. Hill also notes that the items removed from his home were moved by his son and the two females when Hill was not at home.

“A rebuttable presumption arises when one leases premises, and contraband is found therein, that the lessee is in possession of the entire premises and all the property found on the premises.” (Citation and punctuation omitted.) Emerson v. State, 220 Ga. App. 485, 487 (2) (469 SE2d 520) (1996). This presumption can be overcome by evidence that “persons other than the defendant and members of his immediate household had equal opportunity to commit the crime.” (Citation, punctuation and emphasis omitted.) Childers v. State, 218 Ga. App. 457, 458 (1) (462 SE2d 412) (1995). The question of whether the presumption is overcome by evidence of equal access is for the jury. Emerson v. State, 220 Ga. App. at 487 (2).

Here, the evidence showed that Hill resided in the trailer with his 14-year-old son. On the day the materials were confiscated, only Hill’s son and two young females were seen moving items from the trailer into the woods. The witnesses described these females as “kids” and as being younger than Hill’s son. One was described to police as looking about nine years old. At least one of the items moved by Hill’s son was a glass pickle jar confiscated by police, along with the other jars and metal pots found in the immediate vicinity of the trailer. It is undisputed that at least one of the jars or pots contained methamphetamine. And the lab results showed methamphetamine in the combined residue.

And although the jar removed by Hill’s son from the trailer was not proven definitely to have contained methamphetamine, Officer Colbert testified that the appearance of the residue inside was consistent with at least one stage of the process of making the drug. The jury could have inferred that the jar taken from the trailer was connected to the nearly identical jar found outside the trailer. And in turn, that the jars were connected with the metal pots found there.

Although these items were found in the open where others could have had access, the jury could have found that no one had an opportunity equal to that of Hill, as the only adult in residence, to have possessed the numerous containers that were in and around his trailer. See Sears v. State, 244 Ga. App. 718, 719 (536 SE2d 605) (2000). Or the jury could have found that Hill possessed these containers jointly with his son. See Childers v. State, 218 Ga. App. at 458 (1).

Such findings were bolstered by evidence that Hill had been present on earlier occasions when the ammonia/ether smell was coming from the trailer, and he had admitted to cooking “crystal meth” on the premises.

Accordingly, we find that there was sufficient evidence to connect Hill to the various containers found on his premises and that the equal access rule did not bar his conviction.

2. Hill also argues that the trial court erred in denying his motions for directed verdict and new trial on the ground that the evidence was commingled, altered, adulterated, substituted, and tampered with by police. This ground can be summarized as an assertion that the state should not have mixed the evidence from the individual containers before testing.

As an initial matter, we note that the state proved the chain of custody of this evidence from in and around Hill’s residence through the testing procedure at the state crime lab and into evidence at trial. Therefore, there is nothing to indicate that the state submitted materials other than those collected from around Hill’s trailer to the crime lab. Nevertheless, we find that because the materials from all the jars and pots were combined into one bag, there is insufficient evidence to show that Hill possessed the required quantity of methamphetamine mixture to support his conviction for methamphetamine trafficking.

Hill was charged with possessing 28 grams or more of a mixture of methamphetamine with the intent to distribute it. Under OCGA § 16-13-31 (e), “[a]ny person who knowingly sells, manufactures, delivers, or brings into this state or has possession of 28 grams or more of methamphetamine, ... or any mixture containing . . . methamphetamine . . . commits the felony offense of trafficking in methamphetamine. . . .” (Emphasis supplied.) There is no requirement that a specific quantity of methamphetamine be present in the mixture in order to constitute a violation of the statute. See Belcher v. State, 161 Ga. App. 442, 443 (1) (288 SE2d 299) (1982). We note, however, that the trial court charged that the jury had to find that Hill possessed 28 grams of methamphetamine, not a mixture thereof, in order to convict him for trafficking. This instruction set a higher standard of proof than required by the indictment. See generally Daniel v. State, 251 Ga. App. 792, 793 (555 SE2d 154) (2001).

The evidence showed that the mixture of materials from all the containers contained some unknown quantity of methamphetamine and weighed a total of 90.5 grams. But Officer Colbert testified that the material in the pickle jars could have come from any stage in the manufacturing process, including the initial stage. In the first stage, Sudafed tablets are soaked in denatured alcohol to separate the principal ingredient, which Officer Colbert stated was ephedrine, from the bonding agents in the Sudafed tablets. From that point, a number of steps must be taken to trigger the chemical reactions eventually resulting in methamphetamine. Thus, the material in the pickle jars could have been nothing more than a mixture of alcohol and Sudafed, which when dried left simply ephedrine or an ephedrine mixture of some kind. Therefore, while it is undisputed that at least one of the containers contained methamphetamine, the state did not establish that each container held the drug.

And while the combined residue from the containers weighed 90.5 grams, there was no evidence as to how much the residue from each container weighed. Officer Colbert estimated that he took equal amounts from each container, but there was no evidence as to the relative weight of these amounts. The record is also devoid of evidence as to the relative weight of the materials found at the various stages in the methamphetamine cooking process. As a result, it cannot be determined, for example, if an amount of ephedrine would weigh more or less than an equal amount of methamphetamine. And because the combined mixture was not tested to determine the percentage of methamphetamine it contained, the relative weight of the drug cannot be determined. See, e.g., Barnett v. State, 204 Ga. App. 491, 496 (3) (420 SE2d 43) (1992). It is impossible, therefore, to determine how much of these materials was methamphetamine and how much may have been simply ephedrine or something else. Therefore, there was insufficient evidence to support a conviction based upon the jury charge.

Decided February 11, 2002.

F. Robert Raley, for appellant.

Howard Z. Simms, District Attorney, Sharell F. Lewis, Assistant District Attorney, for appellee.

Nor was there sufficient evidence to support a trafficking conviction as alleged in the indictment. While the statute does not require that a methamphetamine mixture contain any particular percentage of the drug, it does require that the defendant possess the mixture. Here, Hill did not possess the mixture sent to the lab for testing. He merely possessed the component parts of that mixture. It was Officer Colbert who combined the components to create the mixture. And when he combined the components, it became impossible to determine if Hill had possessed 28 grams of methamphetamine or even a 28-gram mixture containing methamphetamine. The only thing that the state proved is that Hill possessed some unknown quantity of the drug.

Since this evidence was sufficient to support a verdict on the lesser included offense of possession of methamphetamine, OCGA § 16-13-30 (a), we remand the case with direction that the judgment of Hill’s conviction for trafficking in methamphetamine be vacated and a judgment and sentence for possession of methamphetamine be entered. See generally Greene v. State, 230 Ga. App. 155, 157 (2) (495 SE2d 634) (1998); McNair v. State, 226 Ga. App. 516, 518 (1) (487 SE2d 100) (1997).

3. We find no merit in Hill’s remaining enumeration of error.

Judgment vacated and case remanded with direction.

Blackburn, C. J., and Mikell, J., concur.

       A man and woman also had visited Hill’s trailer earlier for a brief period. The man was the one who later got into the altercation with the neighbor’s brother. These individuals were seen going into the trailer and coming right back out to their car where they appeared to be “doing drugs.” We have previously held under similar facts that “[m]erely being somewhere within the premises for a relatively short but unspecified time before drugs subsequently are found therein does not reasonably raise the defense of equal access.” Jones v. State, 200 Ga. App. 519, 520 (2) (b) (408 SE2d 823) (1991).

       The Belcher case was construing a pre-1986 version of the cocaine trafficking provision, currently codified at OCGA § 16-13-31 (a). That provision was amended in 1986 to require a “mixture with a purity of 10 percent or more of cocaine” in order to constitute a trafficking violation. Ga. L. 1986, p. 397, § 1. The methamphetamine provisions contain no such requirement.


author: Ruffin, Judge.

text:
    A01A1770.
    LIONHEART LEGEND, INC. v. NORWEST BANK MINNESOTA NATIONAL ASSOCIATION.
    (560 SE2d 120)
   Ruffin, Judge.

Norwest Bank Minnesota National Association sued Jacqueline Fowler and Lionheart Legend, Inc. to set aside an allegedly fraudulent security deed. Norwest Bank moved for partial summary judgment, and the trial court granted the motion. Lionheart Legend appeals, and for reasons that follow, we affirm.

A trial court properly grants summary judgment “when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law.” In reviewing a trial court’s grant of summary judgment, “[w]e apply a de novo standard of appellate review and view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant.”

Viewed in this light, the evidence shows that in 1994, Fowler incorporated Lionheart Legend, and she and her mother were the company’s two initial shareholders. Fowler personally loaned Lion-heart Legend the money to purchase an investment property, and in May 1997, Lionheart Legend purchased property located at 490 West Paces Ferry Road for approximately $1.3 million. Under an agreement between Fowler and Lionheart Legend, Fowler and her mother were to provide the funding for renovating the property, and Lion-heart Legend was “to provide time, blueprints, estimates, bids, design time, interior design time, supervision, maintenance, [and] construction expertise” for work done on the property.

In June 1995, Lionheart Legend quitclaimed the property to Fowler and her mother so that they could obtain a loan using the property as collateral. Fowler obtained a $900,000 loan from Merrill Lynch, the proceeds of which were transferred to Lionheart Legend, and pledged the property as collateral in a security deed (the “Merrill Lynch security deed”). After obtaining the loan, Fowler executed a quitclaim and warranty deed conveying the property back to Lion-heart Legend. Evidently, this deed was never recorded, and Fowler remained the record owner of the property. Fowler subsequently transferred her shares in Lionheart Legend to James Holloway, her ex-husband.

Almost two years later, in April 1997, Fowler issued a promissory note to Lionheart Legend in the amount of $3,000,000. In June 1997, Fowler executed a security deed in favor of Lionheart Legend pledging the property to secure the debt (the “Lionheart Legend security deed”). It is undisputed that no money changed hands between Fowler and Lionheart Legend. According to Fowler, she executed the promissory note as a means of compensating Lionheart Legend for work done on the property.

Lionheart Legend did not file the security deed until November 19, 1997. At that time, Fowler was in the process of obtaining another loan using the property as collateral. Fowler completed several applications with American Federated, a mortgage company. None of the loan applications reflected the existence of the Lionheart Legend security deed. Fowler alleges that she told Renee Bonds, vice president of the mortgage company, that Lionheart Legend had a security interest in the property. Bonds, however, denies this allegation.

Norwest agreed to lend Fowler $1,000,000, and the loan closed on December 30, 1997. Fowler executed a security deed pledging the property as collateral in favor of Norwest (the “Norwest security deed”). Under the express terms of the agreement, the Norwest security deed was to be a second mortgage, junior in priority only to the Merrill Lynch security deed.

Fowler defaulted on the loan, and Norwest accelerated the debt. Evidently, Norwest was unable to collect on the debt. Merrill Lynch foreclosed on the property, and the sale rendered surplus proceeds. In order to recover the surplus, Norwest sued Fowler and Lionheart Legend, alleging claims for fraud, negligent misrepresentation, and breach of contract. Among other relief requested, Norwest sought to have the Lionheart Legend security deed set aside as a fraudulent conveyance.

Norwest moved for partial summary judgment, requesting that the trial court

enter an order: (1) granting judgment against Ms. Fowler in the total amount of $1,414,577.29 for her breaches of contract and of warranties; (2) declaring the Lionheart Security Deed to be mill and void as a fraudulent conveyance; and (3) declaring that Norwest is entitled to all foreclosure surplus funds.

The trial court granted Norwest’s motion, ordering Fowler to pay “the total amount of $1,414,577.29 with interest continuing to accrue thereon at 12% per annum.” The trial court further concluded that the Lionheart Legend security deed constituted a fraudulent conveyance, declared the deed null and void, and found that Norwest is entitled to all surplus proceeds. It is this ruling that Lionheart Legend appeals.

OCGA § 18-2-22 (2) provides that the following acts by debtors shall be fraudulent in the law against creditors and others and as to them shall be null and void:

Every conveyance of real or personal estate, by writing or otherwise, and every bond, suit, judgment and execution, or contract of any description had or made with [the] intention to delay or defraud creditors, where such intention is known to the taking party; [but] a bona fide transaction on a valuable consideration, where the taking party is without notice or ground for reasonable suspicion of said intent of the debtor, shall be valid.

To establish a claim of fraud under this Code section, a creditor must prove both that the grantor had fraudulent intent and that the grantee either had actual knowledge or reason to believe that the grantor’s intent was fraudulent. As a general rule, “it is peculiarly the province of the jury to pass on these circumstances showing fraud. Except in plain and indisputable cases, scienter in actions based on fraud is an issue of fact for jury determination.” Thus, the issue before us is whether this is one of those rare cases in which the evidence of fraud is indisputable. We agree with Lionheart Legend that it is not.

Norwest contends that Fowler’s actions in failing to disclose the Lionheart Legend security deed proves that the conveyance was fraudulent. We disagree. In determining whether a conveyance is fraudulent, we look to the intention of the parties, which is ascertained from the facts and circumstances at the time of the conveyance. Here, Fowler’s alleged failure to disclose the existence of the Lionheart Legend security deed six months after she executed the deed constitutes circumstantial evidence that the prior conveyance was fraudulent. And it may also establish that Fowler was engaging in fraud at the time she closed the loan with Norwest. But it does not establish, as a matter of law, that the earlier conveyance was fraudulent at the time made.

On appeal, Norwest also points to the inadequacy of consideration for the Lionheart Legend security deed and Fowler’s five-month delay in filing the deed as evidence of fraud. As with Fowler’s alleged failure to inform Norwest of the security deed, these factors are indicators — possibly strong indicators — that Fowler’s intent was fraudulent. But they are subject to explanation. Accordingly, such evidence cannot serve as the basis for a grant of summary judgment on Norwest’s fraudulent concealment claim.

Norwest argues that the security deed is also a fraudulent conveyance under OCGA § 18-2-22 (3). Pursuant to this subsection, a voluntary conveyance is deemed fraudulent if it is “not for a valuable consideration [and is] made by a debtor who is insolvent at the time of the conveyance.” Norwest asserts that the Lionheart Legend security deed was made without valuable consideration. Specifically, Norwest points to the fact that, at the time of the conveyance, Fowler had already loaned considerable sums to the company that she had not been repaid. According to Norwest’s accounting, “Lionheart actually owed [Fowler] more than $2.2 million” when she signed the promissory note for an additional $3 million. Thus, Norwest reasons, the promissory note was a sham, given for the sole purpose of defrauding creditors. Again, we disagree.

“A valuable consideration is founded on money or something convertible into money or having a value in money.” It follows that the performance of services can constitute valuable consideration. Here, the record indicates that Lionheart Legend performed work on the property and, in exchange for its work, was to receive 33 percent of the appraised value of the property. According to Fowler, the property appraised for $8.25 million and $9 million, which is how she determined the amount of her promissory note — 33 percent of $9 million. Although a jury certainly would not be required to believe that the promissory note was in exchange for work performed, there is sufficient evidence of valuable consideration to create an issue of fact. Accordingly, the trial court erred in granting Norwest’s motion for partial summary judgment on the basis that it was a fraudulent conveyance.

Finally, Norwest argues that it was entitled to summary judgment because the Lionheart Legend security deed was a nullity. The record establishes that, after executing the Merrill Lynch security deed in June 1995, Fowler signed a quitclaim and warranty deed conveying the property back to Lionheart Legend, which she then gave to the closing attorney. Although the deed was never recorded, Norwest asserts that, as a result of this conveyance, “[a]s between Lionheart and [Fowler], Lionheart has held the title to the Property since June 1995.” Accordingly, Norwest reasons that Fowler lacked title to the property, and thus, the Lionheart Legend security deed is a nullity.

“A deed not executed in precisely the manner prescribed in OCGA § 44-5-30 is not properly recordable and therefore does not give constructive notice to all the world. As between the parties themselves, however, the deed is valid and binding.” Thus, absent evidence of fraud, or duress, or some other coercive action, courts will uphold such unrecorded deeds between the parties. Granted, the context in which such deeds are enforced generally involves the parties, themselves. This is so because, in most cases, a third party would have no reason to know of the existence of such deed. Thus, the initial inquiry is whether a third party may assert the existence of an unrecorded deed. We see no reason why not.

“Georgia’s recording acts are intended to protect bona fide purchasers of property who first record their deed without notice of a prior unrecorded interest in the same property.” Since the recording requirement is intended to protect innocent parties, it would produce an anomalous result to allow the parties to an unrecorded deed to profit by their failure to record the deed. Accordingly, we agree with Norwest that, if the evidence shows that Fowler signed and delivered a quitclaim and warranty deed conveying the property back to Lion-heart Legend, the deed would be binding as between those two parties.

Decided February 12, 2002.

Fellows, Johnson & La Briola, Henry M. Quillian III, Chandler W. Mason, Shattuck Ely, for appellant.

Smith, Gambrell & Russell, Thomas M. Barton, Edward D. Burch, Jr., McCalla, Raymer, Padrick, Cobb, Nichols & Clark, John G. Aldridge, Jr., for appellee.

Here, it is undisputed that Fowler signed such deed, intending to convey the property back to Lionheart Legend. Indeed, Lionheart Legend does not even argue otherwise on appeal. Rather, it simply asserts that implicit in the trial court’s order is a finding that Fowler did have title. But where such factual finding is unsupported by the record, it is subject to reversal. Because the record shows that Fowler signed the deed in favor of Lionheart Legend, as between Fowler and the corporation, the corporation had title to the property.

Norwest asserts that, because Fowler lacked title, the Lionheart Legend security deed was a nullity. Again, we agree. “One cannot transfer or convey an interest in real property greater than [she] has.” Because Fowler already had conveyed her interest in the property to the corporation, Lionheart Legend, she lacked any title to transfer via the Lionheart Legend security deed. It follows that the Lionheart Legend security deed was void as a nullity. And, as a judgment right for any reason will be affirmed, we affirm the trial court’s grant of summary judgment in favor of Norwest.

Judgment affirmed.

Johnson, P. J., and Ellington, J., concur.

       Although the original action was brought by Delta Funding Corporation, which originated the loan, the loan subsequently was assigned to Norwest Bank, which was substituted as the plaintiff in interest. For the sake of clarity, we refer to only the current plaintiff in interest.

       (Punctuation omitted.) Jackson v. Ford, 252 Ga. App. 304 (1) (555 SE2d 143) (2001).

       (Punctuation omitted.) Id.

       Norwest contends that we cannot consider the agreement between Fowler and Lion-heart Legend, which was presented for the first time at the hearing on its motion for summary judgment. According to Norwest, “[t]he trial court properly refused to consider [this evidence] in ruling on the motion for summary judgment.” Although Norwest moved to strike evidence of the agreement, the trial court never ruled on the motion. It is incumbent upon counsel to obtain a ruling on a motion. See Ware v. Fidelity Acceptance Corp., 225 Ga. App. 41, 42 (1) (482 SE2d 536) (1997). Absent such ruling, we will not merely assume the trial court refused to consider such evidence.

       In its brief, Lionheart Legend contends that Fowler sold the stock to her husband. However, Fowler’s deposition testimony shows that she received no compensation for the stock.

       Oddly, the record contains no evidence substantiating the foreclosure, but it is evident from the trial court’s order that such foreclosure took place and the parties do not dispute the existence of surplus proceeds from the sale.

       Norwest also sought injunctive relief, declaratory judgment, attorney fees, expenses of litigation, and punitive damages.

       As Fowler has not appealed, we do not address the trial court’s ruling in this regard.

       See Stokes v. McRae, 247 Ga. 658, 659 (2) (278 SE2d 393) (1981).

        ReMax North Atlanta v. Clark, 244 Ga. App. 890, 894-895 (537 SE2d 138) (2000).

       See Oxford v. Hasty, 213 Ga. App. 539, 541 (445 SE2d 276) (1994) (addressing whether conveyance fraudulent under OCGA § 18-2-22 (3)).

       See Burkhalter v. Glennville Bank, 184 Ga. 147, 155 (2) (190 SE 644) (1937) (“Badges of fraud do not in themselves constitute fraud”).

       See United States v. McMahan, 392 FSupp. 1159, 1166 (N.D. Ga. 1975).

       See Burkhalter, supra.

       (Punctuation omitted.) Maynard v. State of Ga., 217 Ga. App. 344, 347 (2) (457 SE2d 253) (1995).

       See Avary v. Avary, 202 Ga. 22, 33-34 (6) (41 SE2d 314) (1947).

       (Citation omitted.) Duncan v. Ball, 172 Ga. App. 750, 752 (2) (324 SE2d 477) (1984).

       See Hoover v. Mobley, 198 Ga. 68, 71-72 (31 SE2d 9) (1944).

        Hardin v. City Wide Wrecker Svc., 232 Ga. App. 617, 618 (1) (a) (502 SE2d 548) (1998).

       See Pettus v. Smith, 174 Ga. App. 587, 589 (5) (330 SE2d 735) (1985).

       On appeal, Lionheart Legend contends that the deed was invalid because it was never delivered. We disagree. “ A deed is delivered in the sense of the law when the person who makes it puts it in the possession of the person to whom it is made with the intention that it shall pass title to such person.’ ” Jones v. Phillips, 227 Ga. App. 94, 95 (1) (488 SE2d 692) (1997). Here, Fowler was the president of Lionheart Legend at the time she signed the quitclaim and warranty deed conveying the property to the corporation. Thus, the deed essentially was delivered as soon as it was signed. Indeed, Lionheart Legend does not argue that there is any other person to whom the deed could have or should have been delivered.

        Clarence L. Martin, P.C. v. Wallace, 248 Ga. App. 284, 288 (1) (546 SE2d 55) (2001).

       See Atlanta-East, Inc. v. Laird, 269 Ga. 665, 668 (501 SE2d 202) (1998).

         See Southern Electronics Distrib. v. Anderson, 232 Ga. App. 648, 650 (2) (502 SE2d 257) (1998).


text:
    A01A1790.
    In the Interest of M. V. et al., children.
    (560 SE2d 125)
   Ruffin, Judge.

The Whitfield County Juvenile Court terminated the parental rights of the natural mother of M. V., R. M., and J. V. In her sole enumeration of error, the mother argues that the juvenile court lacked clear and convincing evidence that her rights should be terminated. We disagree and thus affirm.

In reviewing a juvenile court’s termination of parental rights, we view the evidence in the light most favorable to that court’s decision, and we will affirm if the record demonstrates that any rational trier of fact could have found by clear and convincing evidence that the parent’s right to custody has been lost. So viewed, the record shows that the mother had four children, M. V., R. M., J. V., and K. G. In April 1999, before K. G. was bom, the Department of Family & Children Services (DFACS) became involved with the mother’s family after receiving a report that M. V. and R. M. had bruises. According to the report, the bruises were believed to have been caused by Moises Garcia, the mother’s live-in boyfriend, who had fathered the two youngest children, J. V. and K. G. A DFACS investigator interviewed the mother and Garcia, who both denied injuring the children.

In April 2000, the mother went with her children to a crisis center for battered women. Although the mother claimed that she had not been abused for several years, she was allowed to stay at the center based upon the recommendation of DFACS. Kim Harrison, a children’s advocate at the center, saw that the mother’s infant, K. G., had a bite mark on her face. She picked up the baby and discovered that the back of her head was abnormal and swollen. The mother attributed the head injury to J. V., claiming the child pulled the baby off of a bed. When Harrison asked the mother about the bite mark, she indicated that it was the result of a kiss. At Harrison’s insistence, they took the baby to the emergency room, where she was admitted for a skull fracture.

The mother left the crisis center on April 20, 2000. Prior to her departure, she signed a DFACS “safety plan,” which required her to “check with DFACS before [Garcia was] allowed back in the home.”

On May 3, 2000, DFACS received notice that M. V., who was ten, had missed school because she was home caring for her three younger siblings. A DFACS investigator went by the mother’s house on May 10, but found no one at home. The next day, DFACS learned that the mother and Garcia were at the hospital with their baby, K. G., who had died as a result of blunt trauma to her skull. According to a doctor who examined the body, the baby showed signs of a recent blow to the head in addition to the previous skull fracture. At the hospital, neither the mother nor Garcia provided any explanation for how the baby had been injured. When law enforcement officers attempted to interview them on a later date, Garcia indicated that they would not speak to the officers without their lawyer present.

Law enforcement officers interviewed M. V. and her eight-year-old sister, R. M., following their sister’s death. M. V. reported seeing Garcia hit the baby on her head, and R. M. said that she saw Garcia throw the baby. Both the mother and Garcia were charged with cruelty to children.

DFACS took the mother’s surviving children into protective custody on May 11, 2000. Shortly thereafter, DFACS filed a deprivation petition, and the juvenile court conducted a hearing on June 22, 2000. The mother and Garcia both appeared at the hearing, but refused to testify, asserting their Fifth Amendment right against self-incrimination. Following the hearing, the juvenile court found that Garcia likely had caused the baby’s death, but that the mother also was culpable for having exposed her children to abuse. Thus, the court ruled that the children were deprived, and the mother has not appealed this ruling.

At the juvenile court’s direction, DFACS created a case plan for the mother, which set forth several goals for her, including maintaining stable housing and income, developing improved parenting skills, and complying with recommended psychological treatment. Evidently, the mother failed to fully comply with the plan, and DFACS filed a petition to terminate her parental rights. Rather than holding a new hearing, the parties stipulated that the evidence would consist of the transcript from the deprivation hearing, psychological evaluations of the mother and Garcia, and the DFACS case plan and progress reports. On February 27, 2001, the juvenile court entered an order terminating the mother’s parental fights.

On appeal, the mother asserts that the trial court erred in terminating her rights because “[t]here was no probative evidence or even hearsay to suggest that [the mother] had injured [her baby] in any matter . . . [and] the evidence was not clear and convincing that [the mother] aided and abetted in any abuse inflicted upon the baby.” We disagree.

In a termination of parental rights proceeding, the juvenile court employs a two-step process. First the juvenile court must determine whether there is clear and convincing evidence of parental misconduct or inability, which shall be proved by demonstrating

that (1) the child is deprived; (2) such deprivation is caused by the lack of proper parental care or control by the parent in question; (3) the deprivation is likely to continue; and (4) the continued deprivation will cause or is likely to cause serious physical, mental, emotional, or moral harm to the child. Once the trial court establishes a lack of parental care and control, the second part of the test for determining whether parental rights should be terminated is whether such termination is in the best interest of the child, after considering the physical, mental, emotional, and moral condition and needs of the child who is the subject of the proceeding, including the need for a secure and stable home.

With regard to the first factor, the unappealed deprivation order establishes that the children are deprived. As to the second factor, the juvenile court was authorized to “consider evidence of past egregious conduct of the parent toward the child [ren] of a physically cruel or abusive nature.” Here, the record demonstrates that one of the mother’s children was beaten to death. Even if the evidence does not suggest that the mother administered the beating, it certainly supports the juvenile court’s conclusion “that the injuries were attributable to her inability to protect her child, which also constitutes lack of proper parental care and control.”

Contrary to the mother’s contention on appeal, the record is not devoid of evidence demonstrating her culpability. At the deprivation hearing, the mother did not testify, but invoked her Fifth Amendment privilege against self-incrimination. The Fifth Amendment, which clearly can be invoked in such civil context, “shields against compelled self-incrimination, not legitimate inquiry, in the truth-seeking process.” Thus, a litigant in a civil case may risk disadvantage “by refusing to provide material facts for fear of self-incrimination in a pending criminal case.” In a termination of parental rights case, if a party invokes the Fifth Amendment, the trial court may infer that a truthful answer would be harmful.

Decided February 12, 2002.

Michael R. McCarthy, for appellant.

Thurbert E. Baker, Attorney General, Dennis R. Dunn, Deputy

Here, the statements of the mother’s older two children suggest that Garcia beat the baby. But the mother’s refusal to testify permits an inference that she knew about the abuse and failed to protect her infant, resulting in the child’s death. Under these circumstances, we agree with the juvenile court that the mother’s children are deprived and that such deprivation originated from the mother.

The record also demonstrates that the deprivation is likely to continue. “It is well established that in addition to present parental misconduct or inability, evidence of past conduct may be considered in determining whether the deprivation would be likely to continue.” Here, the mother has demonstrated passivity in the face of deadly child abuse. The juvenile court was not required to return the mother’s other children to her custody until one of them suffered a serious injury or possibly death. Moreover, the record further reveals that the mother did not fully comply with the reunification plan, which was a prerequisite to retaining her parental rights. It follows that the trial court was authorized to find that the deprivation was likely to continue.

Finally, the juvenile court was authorized to conclude that the termination of the mother’s parental rights was in the children’s best interests. In looking at this second prong, the court may consider the same factors that supported its finding of parental inability. For the reasons discussed above, the trial court had ample evidence from which to conclude that termination of parental rights was in the best interests of the children.

Judgment affirmed.

Johnson, P. J., and Ellington, J., concur.

Attorney General, William C. Joy, Senior Assistant Attorney General, Shalen S. Nelson, Assistant Attorney General, Richard K. Murray, for appellee.

       The juvenile court also terminated the parental rights of both natural fathers, neither of whom appealed the order.

       See In the Interest of J. M. M., 244 Ga. App. 171 (534 SE2d 892) (2000).

       M. V. and R. M. were fathered by another man who evidently resides in Mexico.

       J. V., the other surviving child, was 21 months old.

       The juvenile court also left the record open for three weeks for the addition of deposition transcripts and medical reports. It does not appear, however, that any additional evidence was tendered.

       See In the Interest of K. L., 234 Ga. App. 719, 722 (507 SE2d 542) (1998).

       (Punctuation omitted.) In the Interest of D. P., 244 Ga. App. 553, 554 (536 SE2d 225) (2000).

       See In the Interest of S. H. R., 243 Ga. App. 720, 722 (1) (a) (534 SE2d 161) (2000).

       (Punctuation omitted.) In the Interest of V. M. T., 243 Ga. App. 732, 736 (3) (534 SE2d 452) (2000).

       Id.

       (Punctuation omitted.) Anderson v. Southern Guaranty Ins. Co., 235 Ga. App. 306, 310 (508 SE2d 726) (1998).

       Id. at 311.

       See In the Interest of S. B., 242 Ga. App. 184, 186-187 (1) (528 SE2d 278) (2000) (invocation of privilege “is an implied admission that a truthful answer would tend to prove that the witness had committed the act”).

       See id. at 187.

       Id. at 188 (2).

       See V. M. T., supra at 736.

       See S. B., supra; see also In the Interest of M. C. L., 251 Ga. App. 132, 135 (1) (a) (553 SE2d 647) (2001) (“Repeated failure to comply with [case plan] goals may show that the cause of the deprivation is likely to continue”).

       See In the Interest of C.T, 247 Ga. App. 522, 524 (1) (544 SE2d 203) (2001).


author: Johnson, Presiding Judge.

text:
    A01A2267.
    SHAW et al. v. BRANNON et al.
    (560 SE2d 289)
   Johnson, Presiding Judge.

On March 12, 1998, Danny Shaw was driving a milk delivery truck for Mayfield Dairy Farms, Inc. Shaw received a message on the beeper attached to his belt. As he looked down to check the beeper, he steered the truck partially off the highway. Shaw tried to bring the truck back onto the road, but lost control, and the truck flipped. The truck slid for over 100 feet, across the center of the highway and into the path of oncoming traffic.

Dr. David Brannon, an anesthesiologist, was driving his 11-year-old daughter, Britni Brannon, to school when he saw the swerving milk truck coming at him. He tried to drive off the road to avoid the truck, but was unable to maneuver his car completely off the road before the truck hit it. Dr. Brannon and his daughter were both injured in the accident.

Dr. Brannon and his wife, Cheryl Brannon, filed a lawsuit, in their individual capacities and on their daughter’s behalf, against Shaw and Mayfield for damages. The case was tried before a jury, which returned a verdict of $825,000 for Dr. Brannon, $15,000 for Cheryl Brannon, and $1,500 for Britni Brannon.

Shaw and Mayfield appeal. They contend that the trial court erred in refusing to charge the jury on assumption of risk, in charging the jury on future lost wages, and in failing to grant a mistrial when the Brannons’ attorney made an improper comment during closing argument. The contentions are without merit, and we therefore affirm the judgment of the trial court.

1. A defendant claiming assumption of the risk must show that the plaintiff had actual knowledge of the danger, appreciated the risks associated with the danger, and voluntarily exposed himself to such risks. A charge on assumption of the risk is appropriate when there is evidence that the plaintiff had knowledge of the specific risk of harm associated with the activity or condition that proximately caused his injury, yet proceeded anyway. In order for Dr. Brannon to have assumed the risk of being struck by the Mayfield truck, there must be evidence that after the truck swerved into his lane of traffic, he made a conscious and voluntary decision to proceed and risk a collision.

There is no evidence that after the Mayfield truck careened into his lane, Dr. Brannon consciously decided to proceed and risk a collision. Rather, the evidence shows that as soon as the doctor saw that the truck was out of control, he thought he could evade it and tried to do so. Because there is no evidence that Dr. Brannon assumed the risk of colliding with the out-of-control truck, the trial court correctly refused to charge the jury on assumption of the risk.

2. To recover for diminished future earnings, there must be evidence from which the jury can reasonably infer the loss in earning capacity. Where there is evidence on the permanency of the plaintiff’s injury and its effect on earnings, a jury charge on lost future earnings is authorized. The quantum of evidence needed to support such a charge need not be substantial; slight evidence giving rise to an inference from which lost wages may be computed is sufficient.

In the instant case, there is enough evidence from which the jury could have computed Dr. Brannon’s lost earnings. There is evidence of Dr. Brannon’s present income, that he must undergo surgery for his injured shoulder, that the recovery time from the surgery will prevent him from working for at least three months, that he will have to hire replacement anesthesiologists to provide services during his absence, and that he will pay a fee of $112,600 to hire those replacements. Because there is sufficient evidence of the effect Dr. Brannon’s injury will have on his future earnings, the trial court did not err in charging the jury on lost future earnings.

3. During closing arguments, the Brannons’ lawyer asked the jury to return a verdict of over $1 million in order to send a message to Mayfield. Counsel for Shaw and Mayfield objected and moved for a mistrial on the ground that asking the jury to send a message was tantamount to requesting punitive damages, which were not part of the case. The trial court sustained the objection, but denied the motion for a mistrial. Instead, the court rebuked the Brannons’ lawyer by instructing the jury that sending a message was not an issue that the lawyer could go into and that he should make his argument in other areas. Counsel for Shaw and Mayfield did not object to the curative instruction.

Decided February 12, 2002.

Hall, Booth, Smith & Slover, Roger S. Sumrall, Jonathan Marigliano, for appellants.

J. Lane Bearden, for appellees.

When confronted with an improper closing argument, a trial court may (1) instruct the jury to disregard the argument, (2) rebuke the offending counsel and instruct the jury to disregard his improper argument, or, as a last resort, (3) grant a mistrial. In deciding whether to grant a mistrial, the trial judge has broad discretion which will not be disturbed unless manifestly abused. Here, the trial court did not manifestly abuse its discretion in denying a mistrial and instead issuing a curative instruction rebuking counsel.

Judgment affirmed.

Ruffin and Ellington, JJ, concur.

        Vaughn v. Protective Ins. Co., 243 Ga. App. 79, 81 (2) (532 SE2d 159) (2000).

       Id.

       See Beringause v. Fogleman Truck Lines, 200 Ga. App. 822, 824 (4) (409 SE2d 524) (1991).

       Compare Norman v. Williams, 220 Ga. App. 367, 368-369 (1) (469 SE2d 366) (1996) (court correctly charged on assumption of risk where there was evidence that plaintiff’s husband was hit by defendant’s vehicle when the husband crossed an interstate highway exit ramp on foot from a concealed ditch without trying to determine whether crossing was safe).

        Alto Park Super Mart v. White, 216 Ga. App. 285, 287 (2) (454 SE2d 580) (1995).

       Id.

       Id.

       See Strickland v. Howard, 214 Ga. App. 307, 310 (3) (447 SE2d 637) (1994).

       See Garner v. Victory Express, 264 Ga. 171 (1) (442 SE2d 455) (1994).

        Trustees of Trinity College v. Ferris, 228 Ga. App. 476, 482 (9) (491 SE2d 909) (1997).

       See Alexander Underwriters &c. v. Lovett, 182 Ga. App. 769, 775 (6) (357 SE2d 258) (1987).


text:
    A01A2398.
    ROGERS v. THE STATE.
    (560 SE2d 286)
   Ruffin, Judge.

A jury found John Rogers guilty of two counts of child molestation. Rogers appeals, arguing that he received ineffective assistance of counsel and that the trial court erred in admitting evidence. For reasons that follow, we affirm.

Viewed in the light most favorable to support the jury’s verdict, the evidence shows that Rogers began inappropriately touching his stepdaughter, F. W., when she was seven or eight years old. According to F. W., Rogers touched her vagina with his hands on numerous occasions while he was physically aroused and, at one point, had her stroke his penis until he ejaculated. F. W. testified that the abuse continued until she was 13 years old. Around that time, F. W. told Rogers that she “wanted to be male and . . . liked women.” Rogers responded that he “would never screw [his] son,” and he eventually stopped abusing her.

Approximately one year later, F. W. reported the sexual abuse to her psychologist, Dr. Jeff Weber, who testified as an expert at trial. Weber indicated that F. W. exhibited symptoms consistent with sexual abuse, such as gender identity disorder, which F. W. manifested by acting and dressing like a boy. He also testified that, according to F. W, she began to want to be a boy when Rogers stated that he would not molest his son.

Rogers testified at trial and denied that he sexually abused F. W. The jury, however, found him guilty of two counts of child molestation, and the trial court denied Rogers’ subsequent motion for new trial.

1. On appeal, Rogers argues that his trial counsel was ineffective in not objecting to evidence regarding F. W.’s gender identity disorder. He contends that this evidence was highly prejudicial, irrelevant, and should not have been admitted at trial.

The record shows that Rogers, through new counsel, raised various ineffective assistance of counsel claims in his amended motion for new trial. He did not, however, assert that trial counsel’s failure to object to the gender identity disorder evidence constituted ineffective assistance. “ Any ineffective counsel challenge will be deemed waived if the new attorney files an amended motion for new trial and does not raise the issue before the trial court so that the challenge can be heard at the earliest practicable moment, i.e., during the hearing on the amended motion.’ ” Accordingly, Rogers waived this ineffective assistance claim by failing to raise it below.

2. Rogers also argues that, although counsel did not object to the gender identity disorder evidence, the trial court committed “plain error” in admitting it. This Court generally refuses to address issues not raised or ruled upon below. An exception exists, however, “in cases of plain error which is so clearly erroneous as to result in a likelihood of a grave miscarriage of justice or which seriously affects the fairness, integrity or public reputation of a judicial proceeding.” In Rogers’ view, the gender identity disorder evidence inflamed the jury by portraying him as the disorder’s cause, improperly evoked sympathy for F. W, and unfairly bolstered F. W.’s testimony. Characterizing the evidence as “highly prejudicial,” he argues that its admission affected the integrity of the proceeding, creating plain error and requiring reversal.

We disagree. Under Georgia law, a psychologist such as Weber can offer expert testimony that symptoms exhibited by a child are consistent with sexual abuse. And “the fact that such testimony may also indirectly, though necessarily, involve the child’s credibility does not render it inadmissible.” In this case, Weber testified that F. W.’s effort to dress and act like a male evidenced gender identity disorder. He further stated that, in his opinion, this disorder is consistent with long-term sexual abuse. Weber’s expert testimony properly described for jurors a psychological symptom of sexual abuse.

We find the evidence regarding F. W.’s gender identity disorder and its correlation with sexual abuse both relevant and admissible. The trial court, therefore, did not err — and certainly did not plainly err — in allowing this evidence.

3. Finally, Rogers argues that his trial counsel ineffectively failed to call Pat Higgenbothem, another therapist who counseled F. W, as a witness at trial. At the new trial hearing, Higgenbothem testified that, in her opinion, the gender identity disorder began when F. W. was approximately six years old and resulted from conflicts with her mother. According to Rogers, trial counsel should have called Higgenbothem to rebut Weber’s testimony that F. W.’s disorder began at the age of 13 and was a symptom of sexual abuse.

To prove ineffective assistance of counsel, Rogers “must show that his counsel’s performance was deficient and that the deficient performance prejudiced his defense.” In making this showing, he must overcome the strong presumption that trial counsel’s performance “falls within the broad range of reasonable professional conduct.” Decisions regarding which defense witnesses to call are matters of trial strategy and tactics, “‘and tactical errors do not constitute ineffective assistance of counsel.’ ” Furthermore, absent contrary evidence, trial counsel’s actions are presumed to be strategic.

Rogers did not subpoena trial counsel to testify at the new trial hearing. As a result, the record contains no evidence as to why counsel elected not to call Higgenbothem, leading us to presume that the decision was strategic. In short, Rogers “made no affirmative showing that the purported deficiencies in his trial counsel’s representation were indicative of ineffectiveness and were not examples of a conscious and deliberate trial strategy.” The trial court, therefore, properly rejected his ineffective assistance claim relating to Higgenbothem.

Decided February 12, 2002.

Thompson, Fox, Chandler, Homans & Hicks, Robert L. Chandler, for appellant.

Lydia J. Sartain, District Attorney, Alison W. Toller, Lisa A. Jones, Assistant District Attorneys, for appellee.

Judgment affirmed.

Johnson, P. J., and Ellington, J, concur.

       The jury acquitted Rogers of two other child molestation counts.

       See Loveless v. State, 245 Ga. App. 555 (1) (538 SE2d 464) (2000).

        Thompkins v. State, 272 Ga. 835, 836-837 (2) (c) (536 SE2d 747) (2000); see also Spear v. State, 270 Ga. 628, 632 (5) (513 SE2d 489) (1999) (“The contentions of ineffectiveness not raised on motion for new trial by counsel appointed to represent [the defendant] are waived”).

       See Simmons v. State, 251 Ga. App. 682, 686 (4) (555 SE2d 59) (2001).

       (Punctuation omitted.) Id.

       See Brownlow a State, 248 Ga. App. 366, 367-368 (2) (a) (544 SE2d 474) (2001); Odom v. State, 243 Ga. App. 227-228 (1) (531 SE2d 207) (2000).

       (Punctuation omitted.) Id.; see also Atkins v. State, 243 Ga. App. 489, 494-495 (2) (533 SE2d 152) (2000).

       See Brownlow, supra; Odom, supra.

        Baker v. State, 251 Ga. App. 377, 378 (2) (554 SE2d 324) (2001).

       Id. at 379 (2).

        Callaway v. State, 247 Ga. App. 310, 321 (6) (b) (542 SE2d 596) (2000).

       See Baker, supra.

       See id.

        Archie v. State, 248 Ga. App. 56, 58 (2) (545 SE2d 179) (2001).

       See id. at 58-59; Baker, supra at 379; Foreman v. State, 200 Ga. App. 400, 401 (3) (408 SE2d 178) (1991).


text:
    A02A0617.
    In the Interest of K. R. S. et al., children.
    (560 SE2d 292)
   Miller, Judge.

When the parents of three-year-old K. R. S. divorced, the mother received custody of him. The mother died when the boy was seven, and the father (who had remarried and was parenting with his new wife two children born from the new marriage) took physical and legal custody of the boy. The maternal grandparents shortly thereafter refused to allow the father to retrieve his son after a brief visit with the grandparents. The grandparents filed a deprivation petition against the father in juvenile court, alleging that the child was deprived as a result of the father’s failure to pay child support or to visit the child more regularly. Since these allegations pertain to the circumstances existing while the mother had custody before her death, they do not show current deprivation, and therefore the petition was in the nature of a habeas proceeding to determine custody, which is not within the original jurisdiction of the juvenile court. The juvenile court should have dismissed the petition for want of subject matter jurisdiction. Accordingly, we reverse the juvenile court’s order awarding custody to the grandparents, and we order that the child be immediately returned to his father.

1. Although a juvenile court has exclusive jurisdiction of deprivation petitions, where the matter is in truth a custody controversy in the nature of a habeas corpus proceeding, the juvenile court has subject matter jurisdiction of the matter only if the case originated in the superior court and is transferred to the juvenile court by order of the superior court. In re J.R.T., 233 Ga. 204, 205 (210 SE2d 684) (1974); In the Interest of B. C. P., 229 Ga. App. 111, 112-113 (1) (493 SE2d 258) (1997); see OCGA § 15-11-28 (a) (1) (C), (c). If the petition fails to make valid allegations of deprivation as defined by OCGA § 15-11-2 (8), the matter is not a deprivation proceeding within the jurisdiction of the juvenile court, but is a custody dispute that falls within the jurisdiction of the superior court. In re M. C. J., 271 Ga. 546, 547 (523 SE2d 6) (1999), citing Watkins v. Watkins, 266 Ga. 269, 271 (1), n. 7 (466 SE2d 860) (1996). Indeed,

the juvenile courts should exercise great caution when entertaining deprivation proceedings brought by a non-parent to obtain custody from a parent, for there is a great likelihood in such a situation that the allegations of deprivation will be motivated less by concern for the child than by a desire to avoid the more stringent standard of proof applicable in a habeas corpus action [in superior court].

In re R. R. M. R., 169 Ga. App. 373, 375 (2) (312 SE2d 832) (1983); see Lewis v. Winzenreid, 263 Ga. 459, 462-463 (435 SE2d 602) (1993). For example, the Supreme Court of Georgia recently emphasized that third parties (such as grandparents) seeking custody of a child from a parent must first prove “by clear and convincing evidence that the child will suffer physical or emotional harm if custody were awarded to the biological parent,” Clark v. Wade, 273 Ga. 587, 599 (V) (544 SE2d 99) (2001), something no party or evidence addressed in the case at bar.

The petition here fails to allege deprivation as defined by OCGA § 15-11-2 (8). First, as emphasized in Lewis, supra, 263 Ga. at 461, subparagraph (A) of paragraph (8) defines a deprived child as one who is without proper parental care or control, subsistence, education as required by law, or other care or control necessary for his physical, mental, or emotional health or morals. Where prior to filing the petition the petitioner has taken custody of the child in contravention of law, the petitioner cannot allege that the child is presently deprived, but only that the child had been deprived while in the custodial parent’s care and that the child might once again become deprived if returned to the custodial parent. Id. “The juvenile courts of this state have jurisdiction with regard to a child who is alleged to he deprived, not a child who has allegedly been or will allegedly be deprived while in the legal custody of his . . . parent.” (Emphasis in original.) Id. Notwithstanding this jurisdictional defect, the record here contains no evidence that the child would be deprived while in the custody of the father, whether in the past, present, or future.

Here the father as the surviving parent automatically became the legal custodian of K. R. S. at the moment of the mother’s death since there had been no prior termination of the father’s parental rights. Spires v. Lance, 167 Ga. App. 331 (1) (306 SE2d 317) (1983); see OCGA § 19-9-2; Porter v. Johnson, 242 Ga. 188, 189 (1) (249 SE2d 608) (1978). He had physical custody of the boy for only a few days before the grandparents illegally refused to allow the boy to return to his father after visiting them. Once the father insisted on his right to custody of the child, the grandparents filed the deprivation petition.

Thus, this case is a step removed from the Lewis case. The petition does not even allege that during the few days the father had custody, the child was deprived. Rather, the petition alleges that before the father had legal custody, the child was deprived as a result of the father failing to pay child support or to visit the child regularly, both of which were addressed in the divorce decree. Whether true or not, these allegations became moot once the mother died and legal and physical custody passed to the father. At that point the father no longer had a child support schedule nor a visitation schedule. As provided by law, he took physical custody of the child and began to care for him as the custodial parent. Thus, allegations of what the father had provided as a noncustodial parent became largely irrelevant to a deprivation petition that was required to allege current deprivation with him as the custodial parent. See Lewis, supra, 263 Ga. at 461. Further, since the grandparents took custody of the boy before filing the deprivation petition, they could not even allege that with the father as the new custodial parent, the boy was deprived at the time of the filing. Id.

Nor could the grandparents allege that the boy was deprived as a result of being abandoned. See OCGA § 15-11-2 (8) (C). First, they were holding the boy in contravention of the father’s legal custodial rights and therefore had doubtful standing to allege that the father had abandoned the child. Lewis, supra, 263 Ga. at 461. Second, they did not file the petition until the father demanded legal custody of the boy, which clearly demonstrates that he had not abandoned the boy. Id. at 462. “The juvenile courts of this state have jurisdiction with regard to a child who allegedly has been abandoned, not a child whose non-resident custodial parent has threatened to enforce his right to legal custody.” (Emphasis in original.) Id.; see M.C.J., supra, 271 Ga. at 548 (the nonresident status of the custodial parent was not significant to the holding in Lewis).

The record shows that the petition was not a valid deprivation petition but was “a transparent attempt to use the juvenile court system to seek custody of the child.” B. C. P, supra, 229 Ga. App. at 113 (1). Since the juvenile courts do not have exclusive original jurisdiction over custody disputes cloaked as deprivation actions, and since the superior court had not originally received and then transferred the case to juvenile court pursuant to OCGA § 15-11-28 (c), the juvenile court lacked jurisdiction over the subject matter and should have dismissed the case as requested by the father. B. C. P., supra, 229 Ga. App. at 113-114 (1).

Decided February 12, 2002.

Kathryn A. Hall, Rebecca R. Crowley, Phyllis J. Holmen, Lisa J. Krisher, Vicky O. Kimbrell, for appellant.

John B. Brewer III, Franklin D. McCrea, for appellee.

2. As the juvenile court lacked jurisdiction over what amounted to an attempt to gain legal custody, the father’s enumeration of error challenging the sufficiency of the evidence is moot. B. C. P., supra, 229 Ga. App. at 114 (2).

Judgment reversed.

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