author: Eldridge, Judge.

text:
    A00A1500.
    GARY v. THE STATE.
    (536 SE2d 192)
   Eldridge, Judge.

Jonathan D. Gary filed a motion to suppress evidence found during what he contends was an illegal search of his person. The trial court denied the motion. Gary appeals, and we affirm.

In construing the evidence most favorably to uphold the trial court’s findings and judgment, Boyce v. State, 240 Ga. App. 388, 390 (523 SE2d 607) (1999), the facts adduced at the motions hearing show that at approximately 11:40 p.m., Lowndes County Narcotics Division Investigators Wilbur and Pitchford were conducting a routine patrol of a high drug crime area in Valdosta. Gary was alone on the street walking westbound. When Gary saw the investigators’ patrol car, “he immediately stopped, turned around and started walking back in the other direction.” The investigators went around the block and pulled up beside Gary. Investigator Pitchford was familiar with Gary and knew that “he is not normally on that side of town.” The investigators approached Gary and asked his name; Gary told them. Investigator Wilbur asked if he could pat Gary down for weapons and drugs, and Gary said yes. Wilbur asked Gary if he would empty his pockets, and Gary complied. The investigators testified at the motions hearing that they did not imply Gary was required to cooperate with any of their requests; that Gary was not under arrest; and that Gary was free to leave at any time, since there was “[njothing we could have done. I mean, if he said, I don’t want to talk to you, see you later, he could have walked off and left.”

During their conversation with Gary, the investigators noticed that he “was talking in a strange way.” “He was very stiff lipped.” Investigator Pitchford asked Gary if he could “check his mouth.” “Mr. Gary stated that that would be all right.” Gary opened his mouth, “and he was moving something around inside his mouth. Told him to lift his lip up and when he did you could see, it appeared to be crack cocaine in his mouth.” Pitchford grabbed Gary’s arm and ordered him to “spit it out.” Gary immediately clenched his mouth shut and started to struggle. Gary was forced to the ground where he continued to struggle “by flailing his feet and throwing his arms around.” After struggling for several minutes, Gary suddenly stated, “I don’t have anything in my mouth.” On the ground immediately below Gary’s chin were several pieces of crack cocaine. Following his arrest, a small bag of powdered cocaine and a small bag of marijuana were also found on or about Gary’s person. Gary did not testify at the motions hearing, and no evidence contradicted the investigators’ version of events. Held,-.

1. Gary first argues that the investigators’ initial approach was an invalid Terry stop, without reasonable articulable suspicion to support it. Thus, Gary contends, the instant case is controlled by our decision in Barnes v. State, 228 Ga. App. 44, 46 (491 SE2d 116) (1997), and reversal of the trial court’s judgment is required thereunder. We do not agree.

In Barnes, the officers became suspicious of the defendant for the same reasons the investigators’ suspicions were aroused in the instant case: (a) presence in a high drug crime area, and (b) turning around and walking the other way upon spotting the police. However, the similarities end there. In Barnes, the officers followed up on their suspicions by asking the defendant to stop and speak with them and, immediately thereafter, asking defendant “if he would place his hands on the car.” Barnes v. State, supra at 45. Then, without consent, the officers attempted to physically wrest from the defendant the object that he was holding in his hand. “As we attempted to find out what was in his hand, Mr. Barnes started tussling with us.” Id. at 44. Because it was clear from the totality of the evidence that Barnes was not free to leave once the officers had started to speak with him, this Court determined that the initial stop was a Terry investigative stop. Id. at 46. In that regard, we found that Barnes’ behavior, while suspicious, did not rise to the level of “reasonable articulable suspicion” of criminal wrongdoing necessary to support a Terry stop. Id.

In this case, however, the uncontradicted evidence was that Gary voluntarily stopped to speak with the investigators; that the investigators never conveyed the notion that Gary was required to stop and speak with them; and that Gary was not detained but was free to leave at any time prior to the time crack cocaine was seen in his mouth pursuant to a voluntary consent to search. Accordingly, under the uncontradicted evidence of record, the instant case does not involve a Terry stop à la Barnes v. State, supra, but a “first tier” police/citizen encounter involving no coercion or detention. Stokes v. State, 238 Ga. App. 230, 232-233 (518 SE2d 447) (1999). Under such “first tier” encounter,

[e]ven when officers have no basis for suspecting a particular individual, they may generally ask questions of that individual; ask to examine the individual’s identification; and request consent to search — as long as the police do not convey a message that compliance with their requests is required.

(Citation and punctuation omitted.) Id. at 232. Accordingly, Barnes v. State, supra, does not control, and reversal of the trial court’s judgment is not required.

Decided June 21, 2000.

Closson, Bass & Tomberlin, J. Michael Bass, for appellant.

J. David Miller, District Attorney, J. Bennett Threlkeld, Assistant District Attorney, for appellee.

2. The trial court found that “the search of the Defendant was based upon the Defendant’s voluntary consent to said search and the resulting search and seizure was proper.” “[SJince the trial court sits as the trier of fact, its findings are analogous to a jury verdict and will not be disturbed if there is any evidence to support them.” (Citations omitted.) Morgan v. State, 195 Ga. App. 732, 735 (3) (394 SE2d 639) (1990); Boyce v. State, supra.

Here, there is evidence to support the trial court’s findings since both investigators testified, without contradiction, that Gary voluntarily consented to a search of his mouth. Contrary to Gary’s suggestion, the evidence shows that Investigator Pitchford told Gary to lift his lip only after Gary had already voluntarily consented to the search of his mouth, and such instruction was in furtherance of the consensual search. Gary voluntarily lifted his lip in compliance with the request and in no way implied that such request exceeded the scope of his consent to search. See, e.g., Semelis v. State, 228 Ga. App. 813, 815 (b) (493 SE2d 17) (1997). As the evidence supports the conclusion that the search and seizure were based on Gary’s voluntary consent, the trial court did not err in denying the motion to suppress.

Judgment affirmed.

Blackburn, P. J., and Barnes, J., concur.

        Terry v. Ohio, 392 U. S. 1 (88 SC 1868, 20 LE2d 889) (1968).


source: Caselaw Access Project

license: Public Domain

text:
    A00A1531.
    COCHRAN et al. v. OGLETREE.
    (536 SE2d 194)
   Eldridge, Judge.

Pamela Ogletree sued Billy Cochran and Gregory D. Reed d/b/a Cochran & Reed on two purported construction contracts that were never performed to recover $55,000 deposited on Contract I and $20,000 deposited on Contract II; the defendants answered and countersued for their losses under Contract I. After a bench trial, the trial court found that plaintiff breached Contract I; that the defendants had damages of $18,003.07 resulting from their good faith part performance of Contract I; that the defendants owed plaintiff a refund of $31,996.93 of unearned funds deposited by the plaintiff on Contract I; and that on Contract II neither party was at fault because of the impossibility of performance, but defendants in good faith incurred $4,700 in expenses and had to refund $15,300 of the deposited funds of $20,000 to the plaintiff. The defendants appealed the judgment contending that plaintiff was not entitled to any refund under Contract I, because the money was paid voluntarily and that the defendants had no duty to prove their damages. We do not agree and affirm the judgment of the trial court.

1. Defendants’ first contention is that the trial court erred as a matter of law in requiring any refund on Contract I, because plaintiff voluntarily paid the money. We do not agree.

The trial court found that the defendants owed a refund of $31,996.93 of the deposit of $50,000 paid to them by the plaintiff as unearned and unset-off damages sustained by the defendants under Contract I. The trial court never found that these funds were damages, but were the return of deposited funds of the plaintiff.

The purported written Contract I was void for vagueness, because no final plans and drawings had ever been agreed upon as to what would be built. Cherokee Falls Investments v. Smith, 213 Ga. App. 603, 604-605 (1) (445 SE2d 572) (1994); see also Smith v. Bd. of Commrs. &c. of Hall County, 244 Ga. 133, 143-144 (5) (259 SE2d 74) (1979). The application of all the rules of contract construction and parol evidence would not provide detailed plans, drawings, and specifications necessary to calculate the cost that plaintiff would owe and defendants were obligated to build; to determine the cost plus compensation that defendants would receive as consideration; and to obtain a building permit that government would permit to be built. Therefore, the purported contract lacked a definite contract subject, i.e., the drawings and design of the day-care center. Davidson Mineral Properties v. Baird, 260 Ga. 75, 79 (7) (390 SE2d 33) (1990); Sheppard v. Sheppard, 229 Ga. App. 494, 495 (1) (494 SE2d 240) (1997). Thus, the writing was formative in nature only, i.e., a promise to make an agreement. No binding contract ever came into existence, because “[i]t is well settled that an agreement between two parties will occur only when the minds of the parties meet at the same time, upon the same subject-matter, and in the same sense. [Cits.]” Cox Broadcasting Corp. v. Nat. Collegiate Athletic Assn., 250 Ga. 391, 395 (297 SE2d 733) (1982); Wilkins v. Butler, 187 Ga. App. 84, 85 (369 SE2d 267) (1988). Thus, this action was miscast and misconstrued by all parties as a breach of contract action, when it was an action for money had and received or unjust enrichment with a counterclaim for quantum meruit.

Here, neither party was bound by an enforceable contract. The theory of unjust enrichment applies when there is no legal contract and when there has been a benefit conferred which would result in an unjust enrichment unless compensated. See OCGA § 9-2-7; Zampatti v. Tradebank Intl. Franchising Corp., 235 Ga. App. 333, 340 (5) (508 SE2d 750) (1998); Smith v. Huckeba, 232 Ga. App. 374, 376 (2) (501 SE2d 877) (1998). Therefore, plaintiff was entitled to recover the money deposited under the invalid agreement, that never ripened into a valid contract, on the basis of money had and received or unjust enrichment. Plaintiff proved such amount and proved her entitlement to its return as a matter of law and fact. See Evans v. Evans, 237 Ga. 549, 553 (228 SE2d 857) (1976); Intl. Indem. Co. v. Bakco Acceptance, 172 Ga. App. 28, 32 (2) (322 SE2d 78) (1984); Barton & Ludwig, Inc. v. Thompson, 170 Ga. App. 187, 188 (316 SE2d 786) (1984); Regional Pacesetters v. Halpern Enterprises, 165 Ga. App. 777, 782 (2) (300 SE2d 180) (1983); City of Commerce v. Duncan & Godfrey, Inc., 157 Ga. App. 337 (277 SE2d 266) (1981).

An action for money had and received is a legal action, founded upon the equitable principle that no one ought to unjustly enrich himself at the expense of another, and it is a substitute for an equity action. It is appropriate where the plaintiff overpays or deposits more than was necessary with another, who has no legal right to retain the money. J. C. Penney Co. v. West, 140 Ga. App. 110, 111-112 (2) (230 SE2d 66) (1976). Such action is based upon the equitable principle that one ought not retain money where one would thereby be unjustly enriched at another’s expense. C & S Nat. Bank v. Youngblood, 135 Ga. App. 638, 639 (219 SE2d 172) (1975). Plaintiff can recover for money had and received only where it appears that the defendants have received money belonging to the plaintiff which, in equity and good conscience, the defendants are not entitled to retain. Id.; James Talcott, Inc. v. Roy D. Warren Commercial, 120 Ga. App. 544, 545 (1) (171 SE2d 907) (1969).

While the trial court found that defendants had a duty to return the funds paid by the plaintiff, the defendants had rendered benefits to the plaintiff, in good faith, under the mutual mistake that there was a valid contract. The trial court found that the expenses and hourly rates for the time worked should be compensated by plaintiff; even though the contract was void, quantum meruit or the principle of unjust enrichment, applied on behalf of the defendants, gave rise to the duty for the plaintiff to pay to the defendants the value of the services and expenses incurred, because the plaintiff received some benefit. Watson v. Sierra Contracting Corp., 226 Ga. App. 21, 28 (485 SE2d 563) (1997) (physical precedent only); White v. Arthur Enterprises, 219 Ga. App. 124 (1) (464 SE2d 225) (1995). Such duty to pay the value for the benefit in unjust enrichment is analogous to quantum meruit in that the duty to pay arises out of the receipt of the benefit accepted by the plaintiff from the defendants. Quantum meruit, unlike unjust enrichment, relies upon an implied promise of compensation. See Yoh v. Daniel, 230 Ga. App. 640, 642-643 (3) (497 SE2d 392) (1998).

Decided June 21, 2000.

As to the defendants, there was an expectation by the plaintiff that services be rendered at an agreed upon price, and at the time when they were rendered, plaintiff became obligated to pay for the services and expenses rendered on her behalf at her request, even though the written contract was void. OCGA § 9-2-7; Zampatti v. Tradebank Intl. Franchising Corp., supra; Owens v Landscape Perfections, 215 Ga. App. 642 (451 SE2d 495) (1994). “Where an award of money damages is made for unjust enrichment [or quantum meruit], it must be supported by evidence from which it can be determined to a reasonable certainty that the [plaintiff] in fact realized such [gains].” (Citations and punctuation omitted.) White v. Arthur Enterprises, supra at 124 (1). Thus, in support of its counterclaim or set-off for damages, the defendants had the burden of proof, not the plaintiff.

Since both parties labored under a mutual mistake of fact that there was a valid contract and since plaintiff made the deposit with the defendants in belief that such was required under the contract, then OCGA § 13-1-13 has no application, because the money was not due and payable under a void contract. See New York Life Ins. Co. v. Williamson, 53 Ga. App. 28 (184 SE 755) (1936). Where the purpose for which funds were paid failed of accomplishment, the defendants cannot in good conscience retain such money, and the plaintiff is entitled to the return of such money. Broome v. Cavanaugh, 102 Ga. App. 563 (116 SE2d 881) (1960). OCGA § 13-1-13 must be construed with equitable principles governing money had and received. The plaintiff is not barred from recovering such funds, even if the plaintiff was negligent, when the trier of fact determines that the money should be returned; the trial court found that there should be a partial return of the money deposited. Gulf Life Ins. Co. v. Folsom, 256 Ga. 400 (349 SE2d 368) (1986). Here, neither of the parties knew all the facts, because even on appeal both parties believed that there existed a valid contract. See id. The trial court certainly weighed the equities and awarded the defendants all damages shown by the evidence.

Defendants’ contentions that the return of funds were contract damages and that the deposit was voluntarily made lack merit.

2. Defendants’ second enumeration of error lacks citation to either the record or the transcript and fails to give citation to authority. Therefore, under Court of Appeals Rule 27 (c) (2), such enumeration of error is deemed abandoned.

Judgment affirmed.

Blackburn, P. J., and Barnes, J., concur.

Richard D. C. Schrade, Jr., for appellants.

William, C. Drosky, for appellee.


author: Ellington, Judge.

text:
    A00A0470.
    JENKINS v. SMITH et al.
    (535 SE2d 521)
   Ellington, Judge.

A Fulton County jury awarded Richard T. Smith, P.C., a legal professional corporation, $600,000 on the firm’s claim against Stephen L. Jenkins, a former member of the firm, for misappropriation of firm property. The jury awarded Jenkins nothing on his counterclaim for the value of his one-half interest in the firm on the date of his departure. Jenkins appeals the denial of his motion for judgment notwithstanding the verdict (“j.n.o.v.”) or for a new trial. Because the evidence did not support the verdict, we reverse.

1. Jenkins contends the trial court erred in denying his motion for j.n.o.v. or for a new trial in that the evidence did not authorize the jury to find that he misappropriated a corporate opportunity. He further contends the evidence did not support the amount of the jury’s verdict for misappropriation of firm assets. We agree.

In reviewing a trial court’s decision on a motion for j.n.o.v., the question before this court is not whether the verdict and the judgment of the trial court [were] merely authorized, but is whether a contrary judgment was demanded. A judgment n.o.v. is properly granted only when there can be only one reasonable conclusion as to the proper judgment; if there is any evidentiary basis for the jury’s verdict, viewing the evidence most favorably to the party who secured the verdict, it is not error to deny the motion.

(Citations and punctuation omitted.) Bull Street Church of Christ v. Jensen, 233 Ga. App. 96 (504 SE2d 1) (1998).

Viewed in the light most favorable to the firm, the firm presented the following evidence that Jenkins misappropriated firm property: for over six years, Jenkins was an attorney employee of the professional corporation of which Smith was a half owner. In late 1987, Jenkins bought 50 percent of the firm’s shares and became an equal owner with Smith in what was then known as Smith & Jenkins, RC.

For over seven years, Jenkins managed and performed real estate closings at the firm’s office at 3115 Roswell Road (“the Cobb office”); meanwhile, Smith managed and performed real estate closings at the firm’s office at Perimeter Center. The firm originally set up the Cobb office at the suggestion of the manager of the Coldwell Banker residential real estate broker which had an office next door.

Jenkins announced his intention to withdraw from the firm at the end of 1994. Jenkins did not sell his shares in the firm, nor did Jenkins and Smith, as co-owners, reach a formal agreement regarding disposition of the firm’s assets and liabilities. Over Smith’s objection, Jenkins simply continued to operate a law practice, including closing real estate loans for the adjacent Coldwell Banker broker’s office, at the firm’s Cobb office.

We turn first to the corporate business opportunity Jenkins allegedly misappropriated, that is, the opportunity inherent in controlling the firm’s Cobb office of doing real estate closings for the nearby Coldwell Banker broker. Both Smith and an accounting expert testified as to the income stream historically generated by the Cobb office and concluded that the profit the Cobb office would have generated in the ten years after Jenkins appropriated it was approximately $1,400,000, discounted to present value. The firm presented no evidence of the value of the lease, apart from the role of the office’s location in generating that income stream.

The Georgia Business Corporation Code authorizes an action by a corporation against a director or officer of the corporation to compel an accounting where the officer or director has in violation of his duties appropriated any business opportunity or assets of the corporation. OCGA § 14-2-831 (a) (1) (B), (C). As interpreted by the Supreme Court of Georgia, the business opportunity principle “precludes acquisition by corporate officers of the property of a business opportunity in which the corporation has a beachhead in the sense of a legal or equitable interest or expectancy growing out of a preexisting right or relationship.” (Citation and punctuation omitted.) Southeast Consultants v. McCrary Engineering Corp., 246 Ga. 503, 508 (2) (273 SE2d 112) (1980) (an inchoate opportunity to bid on a public works contract was a business opportunity where it was within scope of former employer’s business and employer had done a preliminary study of the project and had been invited to bid on the project).

But the Supreme Court of Georgia has specifically rejected recovery for misappropriation of a corporate opportunity where the opportunity consisted of “dealings of long standing” with certain customers, a concept commonly known as “good will.” United Seal &c. Co. v. Bunting, 248 Ga. 814, 816 (285 SE2d 721) (1982); see id. at 817 (Weltner, J., dissenting). Even where “the sales to [the] customers accounted for a large part of the [corporation’s] business,” continuing the relationship did not fall within McCrary’s definition of an inchoate business opportunity where there was no contractual relationship with the company and the customers were not the exclusive customers of the company. Bunting, 248 Ga. at 816. Even though “good will” is “a species of property subject to transfer and sale,” it lacks the “finite aspect” of a corporate opportunity. Id. at 816; see id. at 817 (Weltner, J., dissenting). See also Singer v. Habif, Arogeti & Wynne, P.C., 250 Ga. 376, 378 (2) (297 SE2d 473) (1982).

In the absence of evidence that a contractual relationship existed between the Coldwell Banker broker and the firm or that the broker gave the firm all of its business, Jenkins was not liable as a matter of law for appropriating a firm business opportunity. Bunting, 248 Ga. at 816; Singer, 250 Ga. at 378 (2).

Having concluded that the jury was not authorized to award damages for the firm’s lost opportunity, we must consider whether the jury’s verdict for misappropriation of firm assets was otherwise supported by the evidence. With regard to the other items Jenkins allegedly misappropriated, that is, the Cobb office’s furniture and fixtures, the firm presented evidence that the original cost of the furniture and fixtures had been $127,788; the only evidence of depreciated value at the time Jenkins left the firm was Smith’s testimony that the furniture and fixtures were worth in excess of $25,000 at that time. Because the jury’s verdict in favor of the firm in the amount of $600,000 greatly exceeded the evidence of the value of the allegedly misappropriated assets, the verdict was not supported by the evidence. Outdoor Systems v. Woodson, 221 Ga. App. 901, 903 (2) (473 SE2d 204) (1996). We accordingly hold that the trial court erred in denying Jenkins’ motion for new trial. Tallent v. McKelvey, 105 Ga. App. 660, 662 (3) (125 SE2d 65) (1962).

2. Jenkins contends the trial court erred in excluding certain business summaries he proffered in support of his counterclaim. The admission of summaries of voluminous business records is discretionary. First Nat. Bank of Atlanta v. First Nat. Bank of Tucker, 158 Ga. App. 843-844 (282 SE2d 353) (1981). Furthermore, they were cumulative of Smith’s lengthy testimony about the source documents. Buford v. Benton, 232 Ga. App. 102, 104 (3) (501 SE2d 272) (1998). Therefore, the trial court’s exclusion of the summaries did not demand a new trial on Jenkins’ counterclaim; for the reasons given in Division 1, however, the judgment must be reversed.

Decided June 7, 2000

Reconsideration denied June 22, 2000

Weissman, Nowack, Curry & Wilco, Leigh M. Wilco, Joan C. Green, for appellant.

King & Croft, F. Carlton King, Jr., Thomas A. Croft, for appellees.

Judgment reversed.

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

       There is no common law fiduciary duty requiring corporate officials to refrain from using corporate information for personal advantage at the corporation’s expense. See Southeast Consultants v. McCrary Engineering Corp., 246 Ga. 503, 506, n. 1 (273 SE2d 112) (1980).

       Because the entire $600,000 might have been intended by the jury as compensation for the firm opportunity element, the jury’s verdict does not necessarily indicate a finding that Jenkins misappropriated the furniture and fixtures. We note there was evidence that Jenkins offered to return the furniture. Therefore, the trial court was not authorized to enter j.n.o.v. to conform to the evidence in the amount of the value of the furniture and fixtures. Outdoor Systems, 221 Ga. App. at 903 (2).


author: Ruffin, Judge.

text:
    A98A2248.
    BROWN v. THE STATE.
    (536 SE2d 253)
   Ruffin, Judge.

In Brown v. State, we held that the evidence was sufficient to support Melvin Brown’s convictions for driving under the influence of alcohol and violating the Georgia Driver’s License Act. In addition, we held that the trial court properly considered evidence of Brown’s prior guilty pleas in aggravation of sentence, despite Brown’s claim that the State failed to carry its burden of proving that the pleas were voluntary. The Supreme Court vacated our judgment and remanded the case for reconsideration in light of its subsequent holding in Nash v. State. Because the Supreme Court’s decision did not address Division 1 of our prior opinion, we reaffirm our holding therein that the evidence was sufficient to authorize Brown’s convictions. As discussed below, however, we remand the case to the trial court to allow Brown the opportunity to present evidence regarding the voluntariness of his guilty pleas.

In Nash, the Supreme Court overruled its prior decision in Pope v. State, holding that “the burden in non-death penalty cases is on the recidivism defendant rather than the State to prove by a preponderance of the evidence that a previous guilty plea was not knowingly and voluntarily entered.” The Court adopted the following scheme for allocating the burden of proof in such cases:

[T]he burden is on the State to prove both the existence of the prior guilty pleas and that the defendant was represented by counsel in all felony cases and those misdemeanor proceedings where imprisonment resulted. Upon such a showing, the presumption of regularity is then applied and the burden shifts to the defendant to produce some affirmative evidence showing an infringement of his rights or a procedural irregularity in the taking of the plea. Defendant can attempt to meet his burden of production with a transcript, with testimony regarding the taking of the plea, or with other affirmative evidence. A silent record or the mere naked assertion by an accused that his prior counseled plea was not made knowingly and intelligently is insufficient. If the defendant is able to present evidence that a constitutional infirmity exists, then the burden of proving the constitutionality of the plea shifts to the State.

Although the defendant in Nash was represented by counsel in connection with the prior guilty plea, the Court noted that “the parties were operating under Pope [when the guilty plea was admitted] and thus no evidence was adduced by Nash to carry his burden, of proving a constitutional infirmity in the earlier plea.” Therefore, the Court remanded the case “to allow Nash an opportunity to attempt to meet his burden of production at a hearing to be held consistent with this opinion.”

In this case, the guilty pleas reflect that Brown was represented by counsel at the time the pleas were entered. As we noted in our original ruling, Brown presented no evidence that the pleas were not voluntary, but simply argued that the State had the burden to prove voluntariness. As in Nash, however, Brown was “operating under Pope” at the time the pleas were offered into evidence. Therefore, we must remand this case to the trial court to allow Brown “an opportunity to attempt to meet his burden of production at a hearing to be held consistent with” the burden-shifting framework established in Nash.

Judgment affirmed in part and remanded in part with direction.

Pope, P. J., and Ellington, J, concur.

Decided June 22, 2000.

John W. Donnelly, for appellant.

Harry N. Gordon, District Attorney, John A. Parsley, Assistant District Attorney, for appellee.

       237 Ga. App. 322-323 (1) (514 SE2d 236) (1999).

       Id. at 323-325 (2).

       271 Ga. 281 (519 SE2d 893) (1999).

       256 Ga. 195, 209-210 (17) (345 SE2d 831) (1986).

        Nash, supra.

       (Citations and punctuation omitted.) Id. at 285.

       Id. at 286.

       Id.

       In Gillman v. State, 239 Ga. App. 880, 883 (2) (a) (522 SE2d 284) (1999), we held that a remand was not necessary. We noted, however, that the defendant in that case, unlike in Nash, took the stand and testified as to why he believed his plea was not voluntary. In this case, Brown offered no evidence in support of his contention that his pleas were involuntary, but simply relied on Pope’s holding that the State had the burden of proving voluntariness. Under these circumstances, a remand is necessary under Nash.


author: Pope, Presiding Judge.

text:
    A00A0522.
    GEORGIA FARM BUREAU MUTUAL INSURANCE COMPANY v. JOHN DEERE INSURANCE COMPANY.
    (536 SE2d 258)
   Pope, Presiding Judge.

Georgia Farm Bureau Mutual Insurance Company brought a declaratory judgment action seeking a determination that it was not required to provide coverage or a defense to its named insured, Larry Spence, after he was sued for damages in connection with an automobile accident which occurred while he was driving a car owned by his employer, Five Star Dodge, Inc. Georgia Farm also sought a determination that appellee John Deere Insurance Company, which had issued a commercial liability insurance policy to Five Star, should provide coverage. The trial court granted John Deere’s motion for summary judgment and denied Georgia Farm’s motion for summary judgment, and Georgia Farm filed the present appeal to this court.

The following facts are relevant to the resolution of the issues presented by this appeal: On September 21, 1996, Spence, Dennis Henry and Robbie Allen drove from Macon to Atlanta to attend an Atlanta Braves baseball game. Spence and Henry were both employees of Five Star, and Allen was a mutual friend. Henry, who at that time was Five Star’s general manager and Spence’s supervisor, removed a car from Five Star’s new car inventory to drive to the game. Spence testified that he was not with Henry when Henry obtained the vehicle and he was unaware of the circumstances surrounding Henry’s use of the vehicle.

The group drove to Atlanta and attended the game. All three men consumed four beers during the game. According to Spence, Henry suggested Spence drive because he was from Atlanta and knew his way around; according to Henry, he gave Spence the keys to drive after the game because he did not want to drive as he was unfamiliar with the area and did not see well at night. In any event, the group headed north on Interstate 85 with the intention of meeting a mutual friend who lived in that part of the city. However, these plans were interrupted when Spence rear-ended a car which was stopped on the interstate because of an earlier accident. Spence was arrested for drunk driving at the time of the accident.

1. Georgia Farm enumerates as error the denial of its motion for summary judgment. We find no error. Georgia Farm’s insurance contract with Spence contained the following exclusion, “We do not provide Liability Coverage for any person: ... 8. Using a vehicle without a reasonable belief that the person is entitled to do so.” Georgia Farm argues this provision excluded coverage because Spence knew Five Star did not allow personal use of its vehicles and because Spence knew he was violating company policy when he drove the vehicle after consuming alcoholic beverages.

In Hurst v. Grange Mut. Cas. Co., 266 Ga. 712, 716 (4) (470 SE2d 659) (1996), our Supreme Court found:

the exclusion at issue is susceptible of three logical and reasonable interpretations: that the user must be authorized by law to drive in order to reasonably believe he is entitled to use a vehicle; that the user must have the consent of the owner or apparent owner in order to reasonably believe he is entitled to use the vehicle; or, that the user must have both consent and legal authorization in order to be entitled to use the vehicle. The number of reasonable and logical interpretations makes the clause ambiguous [cit.], and the statutory rules of construction require that we construe the ambiguous clause against the insurer. OCGA § 13-2-2 (5). Accordingly, we adopt the interpretation least favorable to the insurer and determine that the clause excludes from coverage only those non-owner drivers who use a vehicle without a reasonable belief that they had the permission of the owner or apparent owner to do so.

Id. at 716-717 (4).

The test then is whether Spence reasonably believed he was entitled to drive the car. This requires “a mixed objective/subjective determination of the user’s state of mind — the reasonableness of the user’s subjective belief of entitlement.” Hurst v. Grange Mut. Cas. Co., 266 Ga. 713 (1). Ga. Farm &c. Ins. Co. v. Schlies, 238 Ga. App. 299, 300 (1) (520 SE2d 468) (1999); Harding v. Ga. Gen. Ins. Co., 224 Ga. App. 22, 23 (479 SE2d 410) (1996). Applying this test to the facts of this case, we find that the trial court properly concluded that a question of fact existed concerning whether Spence reasonably believed he was entitled to be driving the car at the time of the accident.

Although Spence testified he was aware that Five Star did not allow personal use of its automobiles, he also testified that he thought Henry had the authority to grant permission to use the vehicle. And although Henry testified he took the vehicle without the owner’s permission, there is nothing in the record to show that this was communicated to Spence; to the contrary, Spence testified that he and Henry did not discuss how Henry came to be in possession of the car. And we cannot say, as a matter of law, that Spence’s belief concerning Henry’s authority was unreasonable. At the time of the accident, Henry was general manager of the company, second only to the dealer/principal, and was in charge of controlling the vehicles on the lot from which he removed the car in question. Moreover, Spence testified that he was aware of other managers giving employees permission to drive cars off the lot for personal errands and that he had driven vehicles, with his sales manager’s permission, for personal reasons.

Moreover, we also find an issue of fact remains concerning whether Spence reasonably believed he was entitled to drive the car after he consumed alcoholic beverages. First, we note that the fact that Spence was violating a company policy and operating the vehicle in violation of the laws of this state does not demand a finding on summary judgment that it would be unreasonable for him to believe that he was entitled to drive the vehicle. “Our Supreme Court has determined that the exclusion at issue does not implicate whether the driver had a legal right to drive, but whether the non-owner driver had a reasonable belief that he had permission from the owner or apparent owner to use the vehicle.” Ga. Farm &c. v. Schlies, 238 Ga. App. at 301. And although Spence testified that he knew there was a company policy against drinking and driving, we cannot ignore that Henry, Spence’s supervisor and second only to the owner of the dealership in the corporate hierarchy, testified that he asked Spence to drive after Spence had been drinking. Under these facts, we find that there was “sufficient evidence to create a jury issue on whether it was objectively reasonable for [Spence to believe that he had permission to drive the car after he consumed alcohol].” Harding v. Ga. Gen. Ins., 224 Ga. App. at 26. Cf. Barfield v. Royal Ins. Co., 228 Ga. App. 841, 843 (1) (492 SE2d 688) (1997) (in which the test under a permissive use clause was an objective one and did not involve the question of whether the driver reasonably believed he had the owner’s permission to drive after drinking).

2. Alternatively, Georgia Farm argues that if the trial court properly denied its motion for summary judgment, then the trial court erred by granting summary judgment to John Deere. We reject this argument also.

Decided June 22, 2000

Fain, Major, Wiley & Brennan, Charles A. Wiley, Jr., Kim M. Jackson, for appellant.

The language in the respective policies governing permissive use is not identical and does not demand the same conclusion regarding coverage. John Deere’s policy did not contain- the “reasonable entitlement” exclusion quoted in Division 1, but instead contained the more traditional “omnibus” language defining an “insured” as “your . . . paid employees . . . while using, or legally responsible for the use of a covered auto you own . . . if the use is within the scope of your permission.” (Emphasis supplied.) Our appellate courts have previously distinguished these provisions and recognized the inquiry changes depending on the language employed.

The focus of the [reasonable belief] provision has changed from that of the “omnibus” clause. With an omnibus clause the issue is whether there was permission and acts within the scope of that permission. Under the [reasonable belief] exclusion, the issue is shifted to the state of mind of the user.

Ga. Farm &c. Ins. Co. v. Fire &c. Ins. Co., 180 Ga. App. 777, 779 (350 SE2d 325) (1986). In this case Five Star’s owner averred that neither Henry nor Spence had his permission to drive the 1996 Nissan or any other dealership car for their personal use and specifically averred that they did not have permission to operate the vehicle at the time of the accident. Because the evidence is uncontroverted that Spence did not have the owner’s permission to drive the car, the trial court properly concluded that no liability coverage existed under the John Deere policy. Shield Ins. Co. v. Smiley, 234 Ga. App. 806 (508 SE2d 183) (1998).

3. Lastly, under the facts of this case, we reject Georgia Farm’s argument that the John Deere policy coverage should be primary because “insurance follows the car.”

Judgment affirmed.

Smith, P. J., and Miller, J., concur.

McLain & Merritt, William S. Sutton, for appellee.

       Spence testified he drove the car to the game; Henry testified that he, not Spence, drove the car to the game.

       Georgia Farm’s argument that an auto business exclusion applies to the facts of this case is also without merit.

       Although the Supreme Court in Hurst v. Grange Mut. Cas. Co. overruled the portion of this case finding the exclusion clause to be unambiguous, it cited with approval the part of the case in which this court distinguished the two clauses.


text:
    A00A0726.
    BARICH v. CRACKER BARREL OLD COUNTRY STORE, INC.
    (536 SE2d 221)
   Ruffin, Judge.

Mathilda Barich appeals from the trial court’s grant of summary judgment in favor of defendant Cracker Barrel Old Country Store in this slip and fall case. Because there is no competent evidence that Cracker Barrel had actual or constructive knowledge of the alleged hazard, we affirm.

Barich went to eat dinner at a Cracker Barrel restaurant along with her daughter, Cheryl Menosky, her son-in-law, Tom Menosky, and her granddaughter, Katie. Hostess Tina Merrill led the family to a table. Merrill was followed by Cheryl and Katie, then Barich, and then Tom. As Barich walked toward the table, a waitress crossed in front of her “to go over to the kitchen or wherever they take their dirty dishes.” After the waitress passed, Barich slipped and fell on the floor.

Neither Barich, Cheryl, nor Tom noticed any foreign substance on the floor before Barich fell. Afterward, however, all three saw butter on the bottom of Barich’s shoe. Cheryl also saw butter on Barich’s leg. Tom testified that he saw a “smear mark” of butter on the floor where Barich had fallen.

According to Barich, the waitress who had passed in front of her came “running over” right after the fall and said, “it’s my fault, something must have fell off my tray.” The waitress then cleaned the butter off of Barich. At her deposition, Barich was asked the following questions:

Q. Did [the waitress] ever say to you that something specific fell off her tray?
A. Well, the only thing I know is when she was cleaning me she said it was butter. That’s all I recall.
Q. When she was cleaning you after you had fallen?
A. Yes.
Q. Did the waitress ever tell you that butter had fallen off her tray? Or did she say, as you stated earlier, something must have fallen off my tray?
A. She said something fell off her tray.
Q. I want you to be very specific if you can remember this. Did she say something fell off her tray or something must have fallen off her tray?
A. I just don’t recall how she phrased it.

Cheryl testified that the waitress “had come over and apologized several times and said that the butter must have fallen off — from her plate when she was cleaning up.” Tom testified that he did not recall the waitress making such statement. Neither Barich, Cheryl, nor Tom knew the name of the waitress. Cheryl and Tom were able to describe her only as a white female, and Barich added that she was in her twenties and had light brown hair.

To recover for injuries sustained in a slip and fall case, the plaintiff must prove: “(1) that the defendant had actual or constructive knowledge of the hazard; and (2) that the plaintiff lacked knowledge of the hazard despite the exercise of ordinary care due to actions or conditions within the control of the owner/occupier.” With respect to the first element, a defendant moving for summary judgment discharges its burden by “pointing out by reference to the record that there is an absence of evidence to support the [plaintiff’s] case.” Summary judgment is appropriate in a slip and fall case, however, “only when the evidence is plain, palpable, and undisputed, i.e., where reasonable minds cannot differ on the conclusion to be reached.”

1. Barich contends that Cracker Barrel had actual knowledge of the hazard because the unidentified waitress said that something must have fallen from her tray. We disagree.

First, the alleged remark of the waitress is inadmissible hearsay, and we may not consider it. We have held that:

[e]vidence offered on motion for summary judgment is held to the same standards of admissibility as evidence at trial, and evidence inadmissible at trial is generally inadmissible on motion for summary judgment. Hearsay is never admissible and has no probative value unless it comes within a recognized exception to the rule.

In keeping with this principle, we have prohibited slip and fall plaintiffs from trying to create an issue of fact as to the proprietor’s knowledge of - a hazard by pointing to alleged statements of unknown employees who “cannot be identified, located, summoned and cross-examined.” This is because “evidence imputing superior knowledge only at the suggestion of a statement allegedly made by a mystery person is completely unreliable. It is the very essence of hearsay.” Barich cannot identify the waitress who allegedly made the statement and can describe her in only vague terms. Moreover, she makes no showing that she has ever tried to locate or identify the woman, through formal discovery or otherwise.

Relying on Watson v. Kroger Co., Barich argues that she has adequately identified the waitress. But Watson is distinguishable. There, the plaintiff’s grandson testified that “after the fall, a produce department employee told him that they had been meaning to clean up the area where [the plaintiff] fell.” The grandson was able to identify the employee as a black male wearing an apron and working in the produce department. The store manager testified that only one employee was working in the produce department that day; he identified that employee; and the employee was deposed. Thus, although the grandson did not know the name of the speaker, the speaker was nevertheless identified such that the reliability of his alleged out-of-court statement could be tested.

Even if the statement of the unidentified waitress were admissible, it does not show Cracker Barrel’s actual knowledge of the hazard. According to Barich and Cheryl, the waitress said that “something must have fell off my tray.” She did not state affirmatively that she knew she had dropped butter from her tray; she apparently simply inferred from the fact that Barich fell that “something” must have fallen from the tray. But “[a]n inference cannot be based on mere conjecture or possibility.” The fact that a restaurant employee, as opposed to the plaintiff, apparently made this inference does not make it any less conjectural. The waitress’ statement shows speculation, not actual knowledge.

Decided June 22, 2000.

David J. Reed, for appellant.

Richter, Head & Shinall, Steven L. Head, Thomas J. Pavloff, for appellee.

2. Barich also contends that Cracker Barrel had constructive knowledge of the hazard. Barich may show constructive knowledge by pointing to evidence that a Cracker Barrel employee “was in the immediate vicinity of the dangerous condition and could easily have noticed and removed the hazard.” Barich fails to present evidence of constructive knowledge.

She argues that both the hostess and the unidentified waitress were in the immediate vicinity when she fell. As Cracker Barrel points out, however, there is no evidence that either employee could easily have noticed and removed the butter. Barich claims that the waitress dropped butter on the floor only moments before she slipped and fell. Under this theory, the butter had not yet fallen onto the floor when the hostess — who was leading the party — crossed the area, so she could not have noticed it. And, assuming we consider the testimony of the nameless waitress, her alleged statement indicates that — if she dropped the butter at all — she had only just done so and did not realize it until after Barich fell.

Because Barich failed to present evidence that Cracker Barrel had actual or constructive knowledge of the alleged hazard, the trial court properly granted summary judgment in favor of Cracker Barrel.

Judgment affirmed.

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

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

       (Punctuation omitted.) Hardee’s Food Systems v. Green, 232 Ga. App. 864-865 (502 SE2d 738) (1998).

        Sharfuddin v. Drug Emporium, 230 Ga. App. 679, 680 (1) (498 SE2d 748) (1998).

       (Punctuation omitted.) Green, supra at 866 (1).

        Johnston v. Grand Union Co., 189 Ga. App. 270, 271 (1) (375 SE2d 249) (1988) (alleged statement of unidentified “red-haired” employee that there was “something wrong” with door that unexpectedly closed on plaintiff and that “if the door wasn’t fixed, someone was going to get hurt” was hearsay); see also Green, supra at 865-866 (alleged statement by unidentified restaurant employee that another employee had been mopping up spilled grease or soda in area where plaintiff fell was hearsay and could not show actual knowledge by restaurant); Hagan v. Goody’s Family Clothing, 227 Ga. App. 585, 586 (490 SE2d 107) (1997) (plaintiff’s testimony that unidentified store employee told him, after he fell, that a child had vomited on the floor was inadmissible hearsay).

        Johnston, supra at 272 (1).

       231 Ga. App. 741 (500 SE2d 631) (1998).

       Id. at 742 (1).

       Barich initially testified that the waitress said that something “must have” fallen off her tray. When pressed as to whether the waitress said something must have fallen off her tray or something had, in fact, fallen off her tray, Barich said she could not recall how the waitress “phrased it.” According to Cheryl, the waitress said something “must have” fallen from the tray. In light of Barich’s admitted lack of memory, the only positive evidence in the record concerning the waitress’ statement is that she used the words “must have.”

        Sharfuddin, supra at 683 (3) (a); see also Lovins v. Kroger Co., 236 Ga. App. 585-586 (1) (a) (512 SE2d 2) (1999) (no inference of actual knowledge could be made where plaintiff slipped on spinach dip and employee testified that she had set out spinach dip on table and saw no customers pass through the area).

       (Punctuation omitted.) Ray v. Restaurant Mgmt. Svcs., 230 Ga. App. 145 (495 SE2d 613) (1998).

       Barich does not claim that the butter was on the floor before the hostess walked by it.


text:
    A00A0842, A00A0843.
    In the Interest of D. P., a child (two cases).
    (536 SE2d 225)
   Ruffin, Judge.

The juvenile court terminated the parental rights of D. P.’s mother, C. P., and she appeals on several grounds. Because her arguments lack merit, we affirm.

The law applicable to the termination of parental rights is well established:

The trial court must first determine whether there is present clear and convincing evidence of parental misconduct or inability. Such conduct or inability shall be proved by showing . . . 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.

We review the evidence in the light most favorable to the juvenile court’s decision, and we will affirm that decision if any rational trier of fact could have found by clear and convincing evidence that the above standard was met.

The record shows that D. P. was bom on April 5, 1998. His mother, C. P, was 15 years old at the time. C. P. had been in and out of the custody of the Department of Family & Children Services (DFCS) since she was 12, when her mother beat her with a bed slat. After C. P. ran away from several foster homes, committed the offense of “rude and opprobrious language,” and was suspended multiple times from middle school, the juvenile court adjudicated her as a delinquent and sentenced her to ninety days in “boot camp,” followed by two years of probation. After her release from “boot camp” in January 1997, C. P. was returned to her mother’s custody.

In September 1997, C. P. learned that she was pregnant. Her mother told her that she could not live at home if she was going to keep the baby, so C. P. called her probation officer, who made DFCS aware of the situation. DFCS placed C. P. in a foster home in Mableton, but she ran away after one month. On October 31, 1997, C. P. was committed to the custody of the Department of Juvenile Justice, and she stayed in the Marietta Youth Detention Center until February 10, 1998. She was then placed at Families First, a group home in Atlanta for pregnant young women.

After D. P. was born, C. P. was placed in Ms. Jackson’s group home in Atlanta. Although C. P. testified thát she was not supposed to have a baby in the group home, her Juvenile Justice caseworker testified that a waiver of certain state regulations had been obtained so that D. P. could stay at the group home with his mother. On May 30, 1998, C. P. left Jackson’s group home without permission and failed to attend classes. C. P. was apprehended on June 1 and sent back to the Marietta Youth Detention Center. D. P. was placed with C. P.’s mother. Following a hearing on June 4, the juvenile court determined that C. P. had violated the conditions of her placement. She was sent to boot camp in Emanuel County from June 16 to July 30.

After her release from boot camp, C. P. was supposed to return to her mother’s apartment. However, her mother refused to take C. P. in and got into a violent altercation with the Juvenile Justice worker who had brought C. P. to her residence. At the time of D. P.’s termination hearing, criminal charges related to this incident were pending against C. P.’s mother. Because C. P. had nowhere else to go, she called Jackson’s group home and asked if she could return. Jackson apparently agreed, and C. P. and D. P. returned to.the group home on July 30.

C. P. ran away from Jackson’s group home a second time on August 12. She told her DFCS caseworker that she had left D. P. with a friend in Swainsboro. D. P. was brought into the custody of DFCS. On August 17, DFCS filed a petition seeking a judicial determination that D. P. was deprived and a termination of C. P.’s parental rights. Following a hearing that same day, the juvenile court issued an order finding that D. P. was deprived because his mother’s whereabouts were unknown and his father’s identity and whereabouts were unknown. There is nothing in the record to indicate that C. P. ever appealed this order.

C. P. was apprehended on September 6 and sent to the Marietta Youth Detention Center. She stayed there until September 16, when she was placed temporarily at Alternate Life Paths, a group home in Atlanta. On September 25, she was placed at a group home in Claxton, and she stayed there until October 19, when she ran away. C. P. was missing until December 2, when she turned herself in to Atlanta Police, who took her back to the Marietta Youth Detention Center. She stayed there until December 9, when she was placed in another group home. After two days, the home asked that C. P. be removed because she was being disruptive. On December 11, C. P. was taken to her mother’s apartment and placed on an electronic tracking device.

On January 12, 1999, C. P. pled guilty in Cobb County Juvenile Court to charges of theft by taking and was ordered to pay restitution. She was recommitted to the Department of Juvenile Justice and released into the custody of her mother.

On January 20, police were called to C. P.’s mother’s apartment. According to C. P, her mother had kicked her out of the apartment and would not let her return. Although C. P. and her mother both downplayed the incident, C. P.’s mother was arrested and charged with cruelty to children after she apparently grabbed a plate of food out of C. P.’s hands and shoved C. P. against a wall in the presence of a police officer. After her mother’s arrest, C. P. stayed with a neighbor for a few days. On January 26, she was recommitted to the custody of the Department of Juvenile Justice and sent to the Macon Youth Detention Center, where she was scheduled to remain in detention for seven to ten months.

C. P.’s Juvenile Justice caseworker testified that C. P. has been placed in more homes and shelters than anyone else on her caseload and that C. P.’s only current option is a youth detention center because “she has been to several group homes and we cannot keep her at those group homes.” C. P.’s DFCS caseworker testified that:

[C. R] went through many placements, including our shelters, which would never accept her back after some incidents. . . . [A]ll of the [foster homes] that we have been able to place her at previously, they would never take her back. She’s been in different shelters in different counties, and she lost those placements. Several placements wouldn’t even accept her. Once we make a contact with a resource for a placement, we are obligated to give them history on the youth that we’re speaking of; and she was turned down in several foster homes and several shelters and several group homes even from making application.

Psychological tests indicate that C. P. needs individual therapy. The State has offered her that service, but she has not remained in any placement long enough to take advantage of it.

Four months after D. P.’s birth, DFCS filed a petition to terminate C. P.’s parental rights. DFCS never developed a case plan to reunite D. P. with his mother. According to the DFCS caseworker, given the history of C. P. and her mother, DFCS felt it was “not in a position where we could place a young child in that environment and assume the child would be safe for a long period of time.” The caseworker testified that social workers assigned to work with C. P. and her mother were met with resistance and concluded that “there was an imminent threat of violence between the mother and the daughter which was not likely to be reduced in the short term.”

D. P. apparently has remained in DFCS’ custody since August 1999. The caseworker testified that at first DFCS suspected he was a drug-addicted baby because “[h]e cried a lot and moaned a lot; the only time he was soothed was when he was held.” D. P.’s pediatrician, however, attributed this behavior to the numerous disruptions, lack of a consistent caregiver, and lack of nurturing in his early life. D. P. is now healthy and reaching developmental milestones normally. The caseworker testified that DFCS wants to find a permanent adoptive home for D. P.

Following a hearing, the juvenile court entered an order terminating C. P.’s parental rights.

1. In her first enumeration, C. P. asserts that there was no evidence that D. P.’s deprivation was attributable to her. We do not agree.

The juvenile court found that C. P. was not mature enough to care for D. P. and had effectively abandoned him, and the record amply supports this finding. C. P.’s Juvenile Justice caseworker testified that the Department of Juvenile Justice placed C. P. in a group home and secured a waiver so that D. P. could remain with her, but she sabotaged this arrangement by skipping classes and running away from the home twice. D. P. was taken into the custody of DFCS while C. P. was on the run and her whereabouts were unknown. At the time of the hearing, she had exhausted all possible placements except the detention center due to her history of running away and being disruptive. Thus, the record belies C. P.’s assertion that she is not responsible for D. P.’s deprivation. Accordingly, the trial court did not err in concluding that C. P.’s misconduct was the cause of her son’s deprivation.

2. Next, C. P. contends that there was no evidence that D. P.’s deprivation would likely continue or not be remedied if he were returned to C. P.’s custody. According to C. P, the evidence at the hearing addressed only C. P.’s past behavior, not her current or future behavior. Again, we disagree.

We have repeatedly held that “the court can consider a parent’s past conduct in determining whether such conditions of deprivation are likely to continue.” C. P. had an extensive history with DFCS and the Department of Juvenile Justice. She had a history of fighting and criminal behavior, and she and her mother had resisted the efforts of DFCS’ social service workers to help them. She had been to boot camp twice, and she had disrupted and run away from foster home and group home placements so many times that the only placement available to her was the youth detention center, where her son was not allowed. As the juvenile court wrote, “[t]he downward decline of the minor mother’s behavior as seen through her history with this court indicates a strong likelihood that she will not be able to appropriately provide for the subject child’s future development and necessities.”

Although C. P. testified at the hearing that she is working toward her GED and wants to find employment so that she can provide for her son, “judging the credibility of her good intentions was a task for the juvenile court.” As we have repeatedly held, “[t]he decision as to a child’s future must rest on more than positive promises which are contrary to negative past fact.” The juvenile court did not err in determining that D. P.’s deprivation would likely continue or not be remedied if he were returned to C. P.’s custody.

3. Finally, C. P. asserts — with no elaboration — that the State failed to establish that termination of her parental rights was in D. P.’s best interest. However, the evidence showed that D. P. initially had behavioral problems as a result of the repeated disruptions, lack of a consistent caregiver, and lack of nurturing in his early life. The DFCS caseworker testified that termination of C. P.’s parental rights would give him the opportunity for adoption and a permanent home. Thus, the juvenile court was authorized to conclude that such termination was in D. P.’s best interest.

Decided June 22, 2000.

William S. Hart, Bobby G. Adkins, Jr., for appellant.

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

Judgment affirmed.

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

       The juvenile court also terminated the parental rights of D. P.’s putative father, who did not respond to the termination petition, did not attend the termination hearing, and apparently has not appealed the juvenile court’s order.

       Because two different attorneys representing C. P. filed notices of appeal, the case was assigned two different numbers in this Court. In reality, Case Nos. A00A0842 and A00A0843 are the same case, and we will treat them as such.

       (Citations and punctuation omitted.) In the Interest of J. H., 240 Ga. App. 309, 310-311 (523 SE2d 374) (1999).

         Id. at 309-310.

       C. P. initially refused to reveal the identity of D. P.’s father because she feared he would be prosecuted for statutory rape.

       Juveniles housed at youth detention centers are not allowed to have children of their own inside the facility.

       As C. P. does not challenge the juvenile court’s finding that D. P. is deprived, she is bound by that finding. See In the Interest of A. M. B., 219 Ga. App. 133, 134 (464 SE2d 253) (1995) (unappealed decision in deprivation hearing is binding on appeal).

       Although C. P. claims that she was not allowed to keep D. P. at the group home, the juvenile court was entitled to credit the testimony of D. P.’s caseworker that special arrangements had been made for D. P. to stay with C. P. See, e.g., In the Interest of J. O. L., 235 Ga. App. 856 (510 SE2d 613) (1998) (on appeal from a termination of parental rights, this Court “neither weighs evidence nor determines the credibility of witnesses”) (punctuation omitted).

       (Punctuation omitted.) In the Interest of A. M. B., supra.

       See id. (in determining that deprivation was likely to continue, the court noted that DFCS had worked unsuccessfully with the family for many years).

        In the Interest of R. N., 224 Ga. App. 202, 205 (2) (480 SE2d 243) (1997).

       (Punctuation omitted.) Id.

       See id. (court “properly concerned itself with the need for stability” in the lives of the children, who “had been bounced between foster homes and their parents’ home over the previous several years, to the detriment of their emotional stability).


author: Johnson, Chief Judge.

text:
    A00A1010.
    MANGRUM v. THE STATE.
    (536 SE2d 217)
   Johnson, Chief Judge.

Jesse Lee Mangrum, Jr. was indicted for trafficking in cocaine and possessing marijuana. Mangrum moved to sever the two offenses. The trial judge denied the motion, and the case was then tried before a jury. The jury heard evidence that police officers executed a search warrant at a house and found Mangrum there with a large amount of crack cocaine. They arrested him. The day after the arrest, an officer went to a motel room where Mangrum had been staying and found five partially smoked marijuana cigarettes in an ashtray. After hearing the evidence, the jury found Mangrum not guilty of possessing marijuana, but guilty of trafficking in cocaine.

Mangrum appeals, arguing that the trial court erred in denying his motion to sever the offenses. Although we agree with Mangrum that the court erred, under the circumstances presented by the record, we find that the error was harmless and that Mangrum’s cocaine trafficking conviction must be affirmed.

Where two offenses have been joined because they are based on (1) the same conduct, (2) on a series of connected acts, or (3) on a series of acts constituting parts of a single plan or scheme, the trial judge has discretion to decide whether or not to sever offenses. But where offenses have been joined only because they are of similar character, a defendant has the absolute right to severance of the offenses.

In the instant case, the cocaine and marijuana charges against Mangrum were not based on the same conduct, a series of connected acts, or a series of acts constituting parts of a single plan. Instead, the charges were based on different, unrelated incidents occurring at separate places and times. The charges were similar only in that they both involved illegal drugs. Because the cocaine trafficking and marijuana possession charges were joined solely because of their similar character, Mangrum had the right to have them severed for trial. The trial court therefore erred in failing to grant Mangrum’s motion to sever the offenses.

Decided June 22, 2000.

Danny L. Durham, for appellant.

Jesse L. Mangrum, Jr., pro se.

Daniel J. Craig, District Attorney, Charles R. Sheppard, Assistant District Attorney, for appellee.

Nevertheless, the error was harmless. First, we note that Mangrum was actually acquitted of the marijuana possession charge. So as to that offense he obviously was not prejudiced by its joinder with the cocaine charge. Second, as to the trafficking in cocaine charge, the state presented overwhelming evidence establishing that Mangrum was guilty of that crime. Given that overwhelming evidence, it is highly unlikely that the jury’s decision on the cocaine charge was influenced by the marijuana charge upon which it had acquitted Mangrum. We are thus compelled to affirm Mangrum’s cocaine trafficking conviction.

Judgment affirmed.

Smith, P. J., and Phipps, J., concur.

        Brown v. State, 230 Ga. App. 190-191 (1) (495 SE2d 858) (1998).

        Carter v. State, 261 Ga. 344 (1) (404 SE2d 432) (1991); Brown, supra at 190.

       Compare Williams v. State, 186 Ga. App. 266, 267 (367 SE2d 92) (1988) (separate incidents properly joined because they constituted parts of a single scheme to sell marijuana).

       See Davis v. State, 159 Ga. App. 356-359 (1) (283 SE2d 286) (1981) (court should have severed armed robbery counts that were joined solely because they were similar offenses).

       See Watkins v. State, 187 Ga. App. 108 (1) (369 SE2d 356) (1988).

       See Sabree v. State, 195 Ga. App. 135, 137 (1) (392 SE2d 886) (1990); Graham v. State, 185 Ga. App. 617, 619 (2) (365 SE2d 482) (1988).


author: Phipps, Judge.

text:
    A00A1170.
    STATE OF GEORGIA v. CARTER et al.
    (536 SE2d 230)
   Phipps, Judge.

The State initiated this drug forfeiture proceeding under OCGA § 16-13-49. Named claimants to the seized property included Ricky and Myra Carter. In successive orders, the trial court denied the Carters’ motion to dismiss the proceeding, granted the State’s petition to condemn certain of the property, and authorized distribution of the property which had been forfeited. Upon being apprised of Blanks v. State of Ga., however, the court later withdrew its earlier orders and dismissed this action because a hearing on the petition had not been conducted in a timely fashion.

The State appeals. In reliance on State of Ga. v. Miller, the State argues that no hearing was required because the Carters’ answers were not verified under penalty of perjury and, therefore, were not legally sufficient. The State also claims that entry of the order of distribution divested the trial court of jurisdiction. Because these arguments were not raised before the trial court, they have not been preserved for appellate review. Nor do they appear meritorious. We therefore affirm.

OCGA § 16-13-49 (o) (5) provides that the hearing on a condemnation petition “must be held within 60 days after service of the complaint unless continued for good cause.” Blanks holds that if the hearing is continued for good cause within the statutorily prescribed 60-day time limit, either the matter must be heard or another continuance granted within the next 60 days. The hearing in this case was continued for good cause “until further court order” within the requisite 60-day time frame, but no hearing was held or additional continuance granted within the following 60 days. Therefore, the court correctly dismissed this action under Blanks.

Although the other issues raised by the State are not properly before us, we note that in this case, unlike Miller, verifications of the answers were sworn to under oath. Therefore, the answers were properly verified. And even though the record reflects that an order of distribution was signed by the trial court, it does not show that there has been a levy of execution of the judgment through distribution and disposal of the property. Entry of the order of distribution did not deprive the trial court of jurisdiction in the case.

Judgment affirmed.

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

Decided June 22, 2000.

Tambra R Colston, District Attorney, Andrew T. Jones, Victoria S. Aronow, for appellant.

Smith, Price & Wright, Charles G. Price, Ann T. Shafer, for appellees.

       240 Ga. App. 175, 176 (1) (522 SE2d 770) (1999).

       234 Ga. App. 650 (507 SE2d 521) (1998).

       See, e.g., Noro-North Plaza &c. v. Rare Coins of Ga., 196 Ga. App. 443 (1) (395 SE2d 918) (1990).

       See Dearing v. State of Ga., 243 Ga. App. 198, 201 (1) (532 SE2d 751) (2000) (holding that a false verification by oath constitutes perjury; disapproving Miller to the extent that it implies that a verification under OCGA § 16-13-49 (o) (3) must contain mandatory perjury language).

       Cf. Bank South, N.A. v. Roswell Jeep Eagle, 200 Ga. App. 489, 490 (3) (408 SE2d 503) (1991).


text:
    A00A1451.
    ABEDI et al. v. CITY OF ATLANTA.
    (536 SE2d 255)
   Phipps, Judge.

As civil service employees of the City of Atlanta Water Department, Abedi and others sued to enjoin the city from privatizing the municipal water system and from terminating their employment as part of the privatization. Following its denial of plaintiffs’ requests for a temporary restraining order and interlocutory injunction, the trial court awarded summary judgment to the city. Plaintiffs appeal, arguing that the city contravened various state statutes in privatizing the water system and that termination of their employment and their loss of pension benefits were in contravention of municipal ordinances which were part of their employment contracts.

The city decided to privatize the water system for fiscal and budgetary reasons and selected United Water Services Unlimited Atlanta LLC, a private contractor, as its delegate for operation and maintenance of the system. The city and United Water entered into a 20-year agreement (referred to as the privatization agreement), which became effective on January 1, 1999.

1. Plaintiffs contend that the privatization agreement violates OCGA §§ 36-30-3 (d) (1), 36-30-7.1 (b), and 36-60-13.

(a) OCGA § 36-30-3 (d) (1) authorizes the governing authority of any municipal corporation to execute contracts specifying rates charged utility customers for water services, so long as such contracts are not for a term in excess of ten years. Because the privatization agreement does not establish water rates, OCGA § 36-30-3 (d) (1) is inapplicable.

(b) OCGA § 36-30-7.1 (b) states that in order for a municipality in Georgia to retain its active status, it must perform at least three of various services set forth in OCGA § 36-30-7.1 (b) (1) (A)-(K). The service specified in subsection (b) (1) (E) is “water supply or distribution or both.” Because OCGA § 36-30-7.1 (b) does not mandate the provision of any particular service therein enumerated, this Code section is also inapplicable. Moreover, OCGA § 36-30-7.1 (b) (1) expressly states that the services the municipality provides may be provided directly “or by contract.”

(c) OCGA § 36-60-13 is likewise inapplicable. Subsection (c) of this Code section does require multi-year lease, purchase, or lease purchase contracts for a county’s or municipality’s acquisition of goods or services to be terminable annually. But' as shown by subsection (d), the Code section is intended to prohibit creation of a county or municipal debt in excess of one year. Because the privatization agreement creates a service payment system under which no municipal debt is created, OCGA § 36-60-13 does not apply.

2. Plaintiffs contend that the city acted outside its authority in enacting amendments to the city code with retroactive application to them.

When this suit was filed, plaintiffs were classified civil service employees. As such, the city code prohibited them from being “dismissed from employment or otherwise adversely affected as to compensation or employment status except for cause.” “Cause” includes such things as negligence, incompetence, inability or failure to perform assigned duties, and conviction or commission of certain crimes. As enacted in 1977, the city code authorized civil service employees to be separated from their employment only for certain specified reasons other than for-cause termination or discharge. These reasons included disability, resignation, and retirement.

On December 7, 1998, the city council amended the code by adding a provision allowing civil service employees to be separated for, among other things, privatization of city services. This amendment became effective on December 10 when signed by the mayor. On or before January 1 (the effective date of the privatization agreement), United Water was required to offer regular, full-time employment to all regular full-time classified employees of the Water Department and, during the first three years of the agreement, to provide base salaries and employment benefits at least equivalent, or reasonably comparable, to those paid or provided by the city. As of January 1, plaintiffs were forcibly terminated from city employment.

Citing City of East Point v. Grayson, plaintiffs argue that while the city may be authorized to modify existing civil service provisions for future employees, the city is not entitled to apply changes to existing employees retroactively. Grayson recognized that the classified civil service employee in that case had a vested contractual interest in the tenure provisions of his employment.

On the other hand, in Smith v. Bd. of Commrs. &c. of Hall County, relied on by the city, the question was whether the Hall County Civil Service Act prohibited the Hall County Board of Commissioners from entering into a contract with a private party for fire protection services under which employees of the fire department would be terminated. The employees contended that the civil service regulations obligated the county to dismiss no employee except for cause. Our Supreme Court concluded that the Civil Service Act did not afford the firemen the protection they claimed, holding that the Civil Service Act did not protect the employees from a decision by the county commissioners that the best interest of the public was served by discontinuing a department of county government.

The Civil Service Act was designed to assure a faithful employee continued employment and to protect those employees against terminations based on unjust or untrue charges that they were not doing or could not do their jobs properly. The Civil Service Act was not meant to, nor does it, deal with terminations based on budgetary concerns. The rule relied upon by plaintiffs ... is not applicable to the Commissioners.

This case is thus controlled adversely to the plaintiffs by Smith. Here, the council and mayor for the City of Atlanta have decided that, for budgetary reasons, the city’s water department should be discontinued and privatized. Under Smith, the public’s interest overrides the civil service employees’ interest in continued employment by the city.

3. Plaintiffs contend that the court erred in holding that the city was entitled to unilaterally divest them of vested pension benefits and to impose penalties upon forced termination.

Under City of Atlanta pension laws, a municipal employee’s pension rights vest after five years of active service. An employee who leaves employment before meeting pension eligibility requirements is entitled to a refund of all employee pension contributions including interest at the rate of five percent per annum. An employee who has five years of active service but has not reached the age of 60 years has the right, upon termination of his or her employment, to elect not to withdraw employee pension contributions but instead to begin receiving one-half of a normal monthly pension benefit after attaining 60 years of age. An employee who has completed between 10 and 15 years of service becomes eligible for a normal monthly pension benefit at age 60 decreased by 10 percent per year for each year that such completed service lacks being 15 years. An employee who has completed 15 or more years of service is eligible for a normal monthly pension benefit at age 60.

Decided June 22, 2000.

McKenney & Froelich, William J. McKenney, for appellants.

Long, Aldridge & Norman, David Balser, F. T. Davis, Jr., Susan P. Langford, Jerolyn W. Ferrari, Victor A. McLemore, Donald P. Edwards, for appellee.

It is undisputed that upon termination of their employment with the city, the plaintiffs were afforded the above rights. It is quite true that they may have suffered financial disadvantages in varying degrees by not being able to continue participating in and contributing to the city’s pension program. But the pension laws gave them no right to continue making contributions following termination of their employment. Because termination of their employment was authorized under our holding in Division 2, supra, their pension rights have not been violated.

Judgment affirmed.

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

       See Wasilkoff v. Douglas County, 227 Ga. App. 232 (488 SE2d 722) (1997).

       109 Ga. App. 413 (136 SE2d 434) (1964).

       Id. at 416 (1).

       244 Ga. 133 (259 SE2d 74) (1979).

       Id. at 141-143 (4).

       Id. at 142 (4).

       Id. at 143 (4).

       Compare Trotzier v. McElroy, 182 Ga. 719 (186 SE 817) (1936).


text:
    A00A1487.
    GREEN v. THE STATE.
    (536 SE2d 240)
   Eldridge, Judge.

Shelm Green appeals from a Fulton County jury’s verdict finding him guilty of vehicular homicide with driving under the influence of alcohol (“DUI”) as the underlying cause; DUI — less safe driver; failing to stop at the scene of an accident; and driving on the wrong side of the road. The charges arose from a December 21, 1996 incident wherein Green, while intoxicated, drove his beige Chevrolet Malibu southbound in a northbound lane of Interstate 85, striking several cars and causing the death of 12-year-old Jamie Chapman. He appeals, challenging (1) the sufficiency of the evidence of his intoxication to support a DUI conviction, and (2) the admission of the State’s similar transaction evidence. Having reviewed the record in relation to Green’s enumerated errors, we affirm his convictions.

1. On appeal the evidence must be viewed in the light most favorable to support the verdict, and Green no longer enjoys a presumption of innocence. “The jury’s verdict must be upheld if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” (Citations and punctuation omitted.) Kidd v. State, 241 Ga. App. 446 (526 SE2d 916) (1999).

In this case, contrary to Green’s contentions, the evidence of his intoxication was ample. Over and above the inference that can be drawn from Green’s traveling the wrong way on 1-85, a doctor who treated Green on the scene testified that he smelled alcohol on or around Green’s person; that Green was “struggling to keep balance” and was weaving when he walked; that Green’s behavior was irrational; and that, in his opinion, Green was under the influence of alcohol. A trained Emergency Medical Technician stopped at the accident scene to render aid; he made contact with Green and testified that he smelled alcohol on or around Green’s person and that, in his opinion, Green was acting as if he was under the influence of alcohol. A witness who arrived on the scene shortly after the accident occurred testified that he saw Green leave his wrecked Malibu and climb up the embankment on the side of 1-85; the witness testified that when he approached Green’s abandoned car, it smelled like alcohol. The officer who eventually located Green hiding in some nearby woods testified that Green smelled like alcohol; he could barely stand up; he staggered when he walked; his speech was slurred; his eyes were glazed; and that, in his opinion, Green “was drunk.” In addition, weeks later, Green told a police officer from Lucedale, Mississippi, that “he had got to drinking and lost his head bad and was driving on the wrong side of the interstate and had a wreck and killed someone.”

Green argues that the above evidence is circumstantial; that no one actually saw Green drink anything; and that no chemical tests were conducted. However, that the above evidence may be “circumstantial” makes it no less powerful when the circumstances proved lead directly to the conclusion that Green was intoxicated. We recognize the longstanding principle embodied in OCGA § 24-4-6 that “[t]o warrant a conviction on circumstantial evidence [alone], the proved facts shall not only be consistent with the hypothesis of guilt, but shall exclude every other reasonable hypothesis save that of the guilt of the accused.” But when an alternate hypothesis is put before a jury, it is that deliberative body which decides whether or not such hypothesis is “reasonable” under the circumstances. Roper v. State, 263 Ga. 201 (1) (429 SE2d 668) (1993). And when the jury rejects an alternative hypothesis in favor of the State’s evidence of guilt, this Court is not authorized to reweigh the evidence, and we will not reverse unless the verdict of guilty is unsupportable as a matter of law. Clark v. State, 271 Ga. 27, 28-29 (1) (518 SE2d 117) (1999).

Here, the evidence of Green’s intoxication may indeed have been circumstantial in nature, but (a) the defense put up no evidence of a reasonable alternative hypothesis, and (b) the arguments that were offered by the defense were rejected by the jury. Since the evidence was sufficient for any rational trier of fact to find that Green was intoxicated so as to support a DUI conviction, this enumeration of error is without merit. See Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Decided June 22, 2000.

Elaine T. McGruder, for appellant.

Paul L. Howard, Jr., District Attorney, Bettieanne C. Hart, Elizabeth A. Baker, Phyllis M. Burgess, Assistant District Attorneys, for appellee.

2. Green contends that “since there was no solid evidence of intoxication” in this case, the State impermissibly implicated his character by introducing as a similar transaction Green’s prior guilty plea to DUI. We find this contention meritless. The “solidness” of the evidence of Green’s intoxication was a jury question decided adversely to Green. The evidence of his prior DUI was admissible as a similar transaction to demonstrate Green’s bent of mind and course of conduct in driving a vehicle after drinking alcohol to the extent that it was less safe for him to drive.

Evidence of a prior DUI offense, regardless of the circumstances surrounding its commission, is logically connected with a pending DUI charge as it is relevant to establish that the defendant has the bent of mind to get behind the wheel of a vehicle when it is less safe for him to do so.

(Citations omitted.) Smith v. State, 236 Ga. App. 548, 552 (3) (512 SE2d 19) (1999), rev’d on other grounds, 272 Ga. 83 (526 SE2d 59) (2000).

Judgment affirmed.

Blackburn, P. J., and Barnes, J., concur.