author: Phipps, Judge.

text:
    A00A0748.
    A00A0749.
    MANN v. THE STATE. LANE v. THE STATE.
    (536 SE2d 608)
   Phipps, Judge.

Bobby Dale Mann and Roger Warren Lane were each charged with four counts of aggravated child molestation, three counts of child molestation, two counts of enticing a child for indecent purposes, and two counts of sexual exploitation of a child. A jury found each guilty of one count of aggravated child molestation and one count of child molestation. On appeal, Mann and Lane challenge the sufficiency of the evidence and the exclusion of a prior allegation of molestation by one of the victims (V. E.). Mann also challenges the court’s refusal to declare a mistrial after two of the State’s witnesses made statements that he claimed improperly placed his character into evidence and its refusal to allow defense counsel to impeach the mother of one of the victims with evidence of her daughter’s prior molestation. Lane asserts as error the exclusion of evidence that V. E.’s mother was sexually abused, the failure to grant a continuance when the State filed a motion in limine the day of trial, and prosecutorial misconduct. Viewed in the light most favorable to the verdict, the evidence was sufficient to allow the jury to find Mann and Lane guilty beyond a reasonable doubt. We find no error in the trial court’s rulings on Mann’s motions for mistrial or on the State’s motions in limine and affirm.

We first address Mann’s claims of error.

1. Mann contends the evidence was insufficient to convict him of child molestation or aggravated child molestation. He claims there were inconsistencies between the victims’ (R. C.’s and V. E.’s) taped interviews with the Department of Family & Children Services (DFACS) and their trial testimony.

“On appeal from a criminal conviction, the evidence is construed in the light most favorable to the verdict of guilt, and the presumption of innocence no longer applies.” As an appellate court, we do not weigh the evidence, judge the credibility of witnesses, or resolve conflicts in trial testimony when the sufficiency of the evidence is challenged. Instead, we determine if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.

R. C., a four-year-old boy, lived with his mother and visited his father and stepmother every other weekend. In late March and early April 1998, R. C. began to have nightmares while staying at his father’s house. On April 17, 1998, R. C.’s stepmother walked into R. C.’s bedroom and saw him “sucking [another little boy] between the legs.” She asked R. C. how he had learned to do that, and R. C. responded “maybe somebody did it to Bobby.” R. C. identified Bobby as “that man that lives with my mama.” At the time, R. C.’s mother was dating Mann, who was living with Lane, R. C.’s uncle.

The next morning, when his father asked him where he learned the act, R. C. responded that maybe somebody had done it to “Bub,” his name for Lane. R. C. also said that he had done it before with Mann and three other children, including V. E. R. C.’s father immediately took him to the police station, where he spoke to Officer Clark. R. C. told Officer Clark that Mann and Lane had “sucked him between the legs” and that Mann had made R. C. “suck [him] between the legs.” Officer Clark told Leonard Evans, an investigator with the Polk County DFACS, about the complaint, and Evans and Clark conducted a second interview of R. C. that same day. During his interview with DFACS, R. C. said that three children, including V. E., had “touched him in his private place,” but did not mention Mann or Lane. At trial, R. C. testified that no “big people” had touched him where they should not have.

On April 23, 1998, Officer Clark interviewed V. E., a seven-year-old girl who lived next door to Mann and Lane. V. E. told Officer Clark that R. C. had come over and asked her to come and play at Lane’s house. According to Officer Clark, V. E. said that while she was there, Mann and Lane made her and R. C. pull their pants down and made her put her mouth and hands on R. C.’s private parts. V. E. told Officer Clark that Mann and Lane had threatened to break R. C.’s back and break both of their necks if they did not do what they were told.

DFACS conducted two videotaped interviews with V. E., one on April 21, 1998, and another on April 23, 1998. During the first interview, which the trial judge excluded from evidence prior to trial, V. E. stated that someone named Mickey had touched her inappropriately. At home after the interview, she told her mother that Mann and Lane had made her “suck [R. C.] between his legs” and had warned her that if she told anyone, they would break her neck and kill her puppies. V. E.’s mother called DFACS and scheduled another interview for V. E.

During the second interview, V. E. told DFACS investigator Evans that Mann and Lane had made her and R. C. pull their pants down and had told her to touch R. C. “where he goes to the bathroom.” V. E. said that she had to do it because they threatened to break her neck. V. E. also told Evans that Mann and Lane made her suck R. C. “where he goes to the bathroom.” Although V. E. was very reluctant to tell Evans what had happened, her second videotaped statement was consistent with what she had told her mother and what she told Officer Clark.

At trial, V. E. testified that Mann and Lane made her “suck [R. C.] where he uses the bathroom” and made R. C. do the same to her. She testified that Mann and Lane threatened to break her back and kill her puppies if she told what had happened.

Mann was convicted on Count 1, causing V. E. to put her mouth on the penis of R. C., and Count 7, causing V. E. to touch the penis of R. C. V. E.’s trial testimony was sufficient to authorize the conviction on Count l. V. E.’s second videotaped interview and Officer Clark’s testimony of his interview with V. E., to which there was no objection, were sufficient to authorize the conviction on Count 7.

2. Mann challenges the trial court’s exclusion of prior allegations of molestation made by V. E. in her initial interview with DFACS. He contends that the allegations were false and should have been admitted to attack V. E.’s credibility.

The rape shield statute’s exclusion of evidence relating to the past sexual behavior of the complaining witness applies in child molestation cases. But the rape shield law does not prohibit testimony of previous false allegations by the victim. Before such evidence can be admitted, “the trial court must make a ‘threshold determination (outside the presence of the jury) that a reasonable probability of falsity exists.’ [Cit.]” The defendant has the burden of coming forward with evidence establishing a reasonable probability that the victim made a prior false allegation of molestation.

The trial court heard Mann’s proffer outside the presence of the jury and determined that no reasonable probability of falsity existed. The only evidence tending to show that V. E.’s prior allegations of molestation were false is the fact that the officer investigating the matter had failed to seek an arrest warrant for the alleged molester for more than one year after the complaint was made. That fact is not sufficient to establish that the allegations were false. We find that the trial court properly excluded this evidence.

3. Mann contends that one of the State’s witnesses referred to his probation revocation hearing, thereby improperly placing his character into evidence. The statement was made by R. C.’s father during cross-examination by Mann’s counsel:

MANN’S COUNSEL: Okay. Let me get you to assume for the purpose of this question that your wife testified and said that you had talked with [R. C.] many times about his testimony in court. Is that true or is that untrue?
R. C.’S FATHER: I have talked to him in the past, back when this — right after the court or the first time —
MANN’S COUNSEL: Let’s say July.
R. C.’S FATHER: — The revocation hearing —

At the conclusion of R. C.’s father’s testimony, after a court-ordered recess, Mann moved for a mistrial. He specifically asked the court not to give curative instructions. The trial judge concluded that there was no reason to believe that anything R. C.’s father had said would notify the jury of Mann’s probation revocation hearing or of the results of that hearing. He instructed counsel for the State to be careful with her witnesses in the future.

The decision whether to grant a mistrial is within the trial court’s sound discretion, and the court’s ruling will not be disturbed absent an abuse of discretion. We agree with the trial court that it is highly unlikely that the jury knew what R. C.’s father was referring to when he mentioned the revocation hearing. We find no error in denying the motion for mistrial after Mann specifically requested that no curative instructions be given.

4. Mann sought a mistrial after the State played the videotaped interviews of the victims. He challenged the taped interview of R. C.’s stepmother because in it she mentioned that Mann had a probation officer and was probably still on probation for child molestation. The trial court denied Mann’s motion, finding that Mann had intentionally placed his character into evidence in his opening statement by telling the jury that he had previously been convicted of child molestation and had served five years in prison.

After hearing Mann’s opening statement, the jury was aware of his status as a convicted child molester. Under the circumstances, the comment by one of the State’s witnesses that she thought that Mann was on probation for child molestation was not a sufficient ground for mistrial.

5. Mann takes issue with the trial court’s refusal to allow him to impeach one of the State’s witnesses with evidence of V. E.’s prior allegations of molestation, which the court had previously excluded in response to the State’s motion in limine. We upheld the exclusion of that evidence in Division 2, supra.

We now turn to Lane’s claims of error.

6. Lane contends that the trial court erred by granting the State’s motion in limine to exclude as irrelevant evidence that V. E.’s mother had been sexually abused. Lane intended to introduce the evidence to show that V. E.’s mother had influenced her daughter’s testimony because of her own history of sexual abuse.

The scope of cross-examination is within the sound discretion of the trial court, and irrelevant matter should be excluded. Although the trial court gave Lane sufficient opportunity to present evidence that V. E. knew that her mother had been sexually abused, he failed to do so. Without such proof or other proof that her mother improperly influenced her testimony, we agree that the prior sexual abuse of V. E.’s mother is irrelevant and was properly excluded.

7. Lane claims the trial court should not have granted the State’s motion in limine to exclude the prior allegations of molestation made by V. E. in her initial interview with DFACS. Lane contends that V. E.’s statements were inconsistent and that both interviews should have been shown to the jury to show that someone other than Lane had molested V. E.

Decided June 30, 2000.

Charles E. Pinkard, Jr., for appellant (case no. A00A0748).

Diane M. Locklear, for appellant (case no. A00A0749).

James R. Osborne, District Attorney, Jane A. Levendusky, Laura C. Herrin, Assistant District Attorneys, for appellee.

We addressed this issue in Division 2, supra.

8. Lane contends that the trial court erred in not granting a continuance when the State filed a motion in limine on the morning of trial. But Lane fails to support this claim with any argument or citation of authority. Therefore, it is deemed abandoned.

9. Lane claims the State committed prosecutorial misconduct by making an inaccurate statement regarding the date of the incidents at issue but fails to indicate where in the record the statement can be found. Each enumerated error must be supported in the brief by specific reference to the record or transcript. In the absence of any such reference, we will not search for or consider the claim of error.

We also note that prosecutorial misconduct must be objected to at trial to warrant reversal on appeal. We find nothing in the record indicating that Lane raised this issue at trial.

10. Finally, Lane contends that the verdict was contrary to the law and the evidence. Although Lane has abandoned this claim by failing to support it with any argument or citation of authority, we will address it nevertheless.

Lane was convicted on Count 1, causing V. E. to put her mouth on the penis of R. C., and Count 7, causing V. E. to touch the penis of R. C. V. E.’s trial testimony was sufficient to authorize the conviction on Count l. V. E.’s second videotaped interview and Officer Clark’s testimony of his interview with V. E., to which there was no objection, were sufficient to authorize the conviction on Count 7.

Judgment affirmed.

Johnson, C. J., and Mikell, J., concur.

        Bohannon v. State, 208 Ga. App. 576 (1) (431 SE2d 149) (1993).

       Id.; Dismuke v. State, 261 Ga. 254 (1) (403 SE2d 812) (1991).

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

        Johnson v. State, 231 Ga. App. 823 (1) (499 SE2d 145) (1998); Cantrell v. State, 231 Ga. App. 629, 630 (500 SE2d 386) (1998).

       See Godbey v. State, 241 Ga. App. 529, 532 (2) (526 SE2d 415) (1999) (where defendant fails to object to testimony admitted under child hearsay statute, OCGA § 24-3-16, issue not preserved for review).

       OCGA § 24-2-3 (a).

        McGarity v. State, 224 Ga. App. 302, 303 (1) (480 SE2d 319) (1997).

        Smith v. State, 259 Ga. 135, 137-138 (1) (377 SE2d 158) (1989).

       Id.

       See Kelley v. State, 233 Ga. App. 244, 251 (5) (503 SE2d 881) (1998).

       Id.

        Osborn v. State, 233 Ga. App. 257, 258 (1) (504 SE2d 74) (1998).

       See id.

        Andrews v. State, 222 Ga. App. 129 (1) (a) (473 SE2d 247) (1996).

       OCGA § 24-2-1.

       Court of Appeals Rule 27 (c) (2).

       Court of Appeals Rule 27 (c) (3) (i).

       Id.

        Beecher v. State, 240 Ga. App. 457, 459 (3) (523 SE2d 54) (1999).

       Court of Appeals Rule 27 (c) (2).

        Johnson, supra; Cantrell, supra.

       See Godbey, supra.


source: Caselaw Access Project

author: Ruffin, Judge.

license: Public Domain

text:
    A00A0761.
    WALL et al. v. CENTURY 21 WINNERVILLE REALTY, INC. et al.
    (536 SE2d 798)
   Ruffin, Judge.

James and Evah Wall sued Century 21 Winnerville Realty, Inc., its president and qualifying broker, and two of its real estate agents, alleging that they wrongfully induced the Walls to purchase certain property. The trial court granted summary judgment to the defendants, and the Walls appeal. For reasons discussed below, we affirm.

Viewed in the light most favorable to the Walls, the evidence showed as follows. In August 1997, the Walls met with defendants Angela Joiner and Rej Joiner, two independent real estate agents working for Century 21, to discuss purchasing a home. The Walls said they wanted to be able to build a garage to house their motor home. Sometime later, Angela Joiner showed the Walls a house at 3919 Kelly Way in Valdosta.

The Walls subsequently met with Angela and Rej Joiner to prepare a contract offer on the house. During this meeting, Angela Joiner showed the Walls a copy of the restrictive covenants for the subdivision. Paragraph 5 provided that no building could be erected without the approval of the architectural control committee, which at the time consisted of Wayne Fann. Paragraph 15 stated that “[w]ritten approval ... is required for any approval as set forth under these restrictive covenants.” During the meeting, Rej Joiner telephoned Fann in the Walls’ presence and told him that the Walls “wanted to be able to build a shed or a garage in which to park the motor home. And I wanted to make sure that it was going to be okay before they did the contract.” According to Joiner, Fann “said that he had no problem with it, that it would be fine. His concern was that . . . the motor home not be too junky-looking, that it blend well with the house.” Fann submitted an affidavit stating that he told Joiner that “if the purchasers complied with the requirements set forth in the Restrictive Covenants that a motor home garage should not be a problem.” He said that he “did not tell [Joiner] that the purchasers needed my prior written approval of any plans for any proposed motor home garage,” although he assumed that the purchasers would contact him to make “final arrangements.”

On August 28, 1997, the Walls entered into a contract to purchase the house. This contract contained a special stipulation stating that “[c]ontract subject to approval from architectural committee to park and store mobile home and build workshop on property.” The contract stated that Century 21 would act as a dual agent, representing both the buyers and the sellers.

Closing occurred on November 6, 1997. Rej and Angela Joiner were present for the closing, along with the Walls and the closing attorney. The sellers were not present, but Angela Joiner had a limited power of attorney to sign the closing documents on their behalf. James Wall testified that, at the closing, the parties discussed the issue of architectural committee approval:

Q. [D]id you have any conversations with [Rej and Angela Joiner] about the motor home, or any approval, or anything like that?
A. At the time of the closing, we mentioned it to the lawyer. The lawyer asked. And at that time, they said there would be no problem.
Q. Can you tell me . . . in as much detail as you remember actually how that conversation went?
A. I would hate to even guess at it.
Q. Who asked about the approval?
A. I’m not exactly sure whether I asked the lawyer, or the lawyer asked us, but it was brought up.
Q. And what was said?
A. And Angela and Rej both said it was taken care of.

Evah Wall recalled the discussion as follows:

Q. Were there any discussions at the closing about the garage or the RV?
A. The attorney asked about it. They said that Angela and Rej said it had been approved, or it was okay. That was about all that was said. The attorney just said fine.

Rej Joiner denied that there were any discussions at the closing concerning the architectural committee approval, and Angela Joiner testified that she did not recall any such discussions.

After closing, the Walls began to build a garage on the property. After receiving complaints from neighbors, Fahn visited the property and left a note stating that the garage was not acceptable and asking the Walls to contact him. At some point, a neighborhood meeting was held, and the neighbors voted against the garage. The Walls subsequently tore down the garage. Fann stated that, “[i]f the Walls had contacted me, ... I would have worked with them towards reaching an acceptable location, design, and landscaping for the garage.” The Walls subsequently listed the house for sale and filed this action against Century 21; Dean Blevins, its president and qualifying broker; and Angela and Rej Joiner.

1. In their fraud claim, the Walls assert that Rej and Angela Joiner fraudulently represented at closing that the stipulation requiring architectural committee approval had been “taken care of,”

The essential elements of a fraud claim are as follows:

(1) a representation made by the defendant, (2) with the knowledge that it was false, (3) and with the intention of deceiving the plaintiff, (4) a reasonable reliance upon the representation by the plaintiff, and (5) loss by the plaintiff as a proximate result of the misrepresentation.

At the outset we note that the evidence is extremely sketchy as to what the Walls claim transpired at the closing. Although James Wall testified that “we mentioned it,” apparently referring to the approval, at the closing, he never stated exactly what the Joiners were supposedly asked by the closing attorney. When asked to provide the specifics of the discussion, he replied that he “would hate to even guess at it.” When asked what the Joiners said in response to whatever question was asked, he indicated at one point that they said “there would be no problem,” and at another point that they said “it” was “taken care of.” Evah Wall was perhaps even more vague in describing the conversation, stating that the Joiners either said “it had been approved” or “it was okay.” Moreover, her testimony suggests that the closing attorney related what the Joiners had supposedly said, not that the Joiners made the statement directly to her.

Thus, according to the Walls, the Joiners were asked something about the garage, although the precise question is not clear. The Joiners responded by stating either that “there would be no problem” or that “it” had been “taken care of” or was “okay” or “had been approved.” Of course, without knowing exactly what question the Joiners were responding to, or exactly what their answer was, it cannot be determined whether their response was false. Saying that something is “okay” or that “there would be no problem” is quite different from saying that something has “been approved” or has been “taken care of.” In this regard, we note that “[t]he testimony of a party who offers himself as a witness in his own behalf is to be construed most strongly against him when it is self-contradictory, vague, or equivocal.” Given the extremely vague and equivocal nature of the Walls’ testimony, and the denial by the Joiners that they made any such statements at the closing, it is questionable whether there is any competent evidence that the Joiners in fact represented that approval for the garage had been obtained.

Even assuming that the Joiners made some such comment, there is no evidence that they knew the statement was false. Rej Joiner tes-

tified that he believed Farm had given the necessary approval during his telephone discussion. Angela Joiner testified that she “assumed it was a done deal” because of this conversation. She testified that, “as far as my mind was concerned, Mr. Fann had approved the cover for the motor home.” Regardless of whether Fann’s statement was in fact sufficient to constitute approval under the restrictive covenant, there is simply no evidence that the Joiners knowingly made any false statement with the intent to deceive the Walls. Accordingly, the trial court did not err in granting summary judgment to the defendants on the fraud claim.

2. In their complaint, the Walls also alleged that the defendants “constructively defrauded” them “by their negligent] acts.” However, “constructive fraud is an equitable doctrine and will not support an action for damages.” Because the Walls do not seek equitable relief, but simply seek money damages, the trial court did not err in granting summary judgment on this claim.

3. The Walls also contend that the trial court erred in granting summary judgment on their claim for professional malpractice. In this regard, they claim that the defendants “failed to disclose the material fact at the time of closing that no written approval for the construction of the garage and workshop had been obtained or was forthcoming from the Architectural Control Committee.”

OCGA § 10-6A-4 (a) states that

[a] broker who performs services under a brokerage engagement for another is a limited agent, unless a different legal relationship between the broker and the person for whom the broker performs the service is intended and is reduced to writing and signed by the parties. . . . Except as set out in this chapter, a limited agent shall not be deemed to have a fiduciary relationship with any party or fiduciary obligations to any party but shall only be responsible for exercising ordinary care in the discharge of its specified duties under the brokerage engagement.

Pursuant to OCGA § 10-6A-7 (a) (2) (C), a broker engaged by a buyer is required to “[d]isclos[e] to the buyer material facts [of] which the broker has actual knowledge concerning the transaction.” When a broker acts as a dual broker for the buyer and seller, “each client and broker and their respective licensees possess only actual knowledge and information. There shall be no imputation of knowledge or information among or between the clients, brokers, or their affiliated licensees.”

Decided June 30, 2000.

Jon W. McClure, for appellants.

Weissman, Nowack, Curry & Wilco, Ned Blumenthal, for appellees.

Nothing in the brokerage agreement imposed upon the defendants the obligation to obtain approval from the architectural committee or to determine whether such approval had been obtained in the proper form. To the contrary, the sales contract specifically stated that

Brokers shall not’be responsible to advise Buyer and Seller on any matter, including . . . the uses ... of the Property whether permitted or proposed. Buyer and Seller acknowledge that Brokers are not experts with respect to the above matters and that, if any of these matters or any other matters are of concern to them, they shall seek independent expert advice relative thereto. ... No Brokers shall owe any duty to Buyer or Seller greater than is set forth in the Brokerage Relationships in Real Estate Transactions Act, OCGA [§] 10-6A-1 et seq.

Since defendants undertook no duty to ensure that the necessary approvals were obtained, or that any such approvals were in the proper form, and there is no evidence that they had actual knowledge that the contingency set forth in the contract had not been satisfied, their failure to affirmatively notify the Walls that the approvals had not been obtained cannot form the basis of a suit for professional malpractice.

Judgment affirmed.

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

        Empire Distrib. v. Hub Motors Co., 240 Ga. App. 568 (1) (524 SE2d 264) (1999).

       (Punctuation omitted.) Douglas v. Sumner, 213 Ga. 82, 85 (3) (97 SE2d 122) (1957). See also Sharfuddin v. Drug Emporium, 230 Ga. App. 679, 684 (3) (e) (498 SE2d 748) (1998) (“vague or equivocal testimony is . . . insufficient to create a triable issue at summary judgment”).

       (Punctuation omitted.) Consolidated American Ins. Co. v. Spears, 218 Ga. App. 478, 479 (1) (462 SE2d 160) (1995). See also Nalley Northside Chevrolet v. Herring, 215 Ga. App. 185, 187 (4) (450 SE2d 452) (1994).

       See id. (reversing jury award of damages due to instruction on constructive fraud).

       OCGA § 10-6A-12 (d).


author: Miller, Judge.

text:
    A00A0784.
    HOWARD v. TECHNOSYSTEMS CONSOLIDATED CORPORATION et al.
    (536 SE2d 753)
   Miller, Judge.

Lynnell F. Howard filed a pro se complaint alleging claims for negligence, breach of contract, fraud and deceit, and misrepresentation against Technosystems Consolidated Corporation, Intromark, Inc., and Invention Submission Corporation (“ISC”). To attempt to effectuate service against these nonresident corporations, Howard served the Secretary of State under OCGA § 14-2-1510 (b) and mailed the defendants copies of the , complaint and summons by “restricted delivery.” After Howard obtained an order declaring them in default, the defendants successfully petitioned to open that default. Discovery ensued, and the defendants eventually prevailed on summary judgment.

In this appeal, Howard contends that the trial court erred in opening default and by awarding summary judgment. After reviewing the record and finding no merit to either purported error, we affirm.

The underlying case arose after Howard, a self-declared “inventor,” entered into several contractual agreements with ISC. Howard claimed to be the inventor of a pen and pencil that would emit musical tones upon activation. Howard dubbed the product, “E-rasers.” After executing a submission agreement in August 1995 with ISC that obligated her to make scheduled payments in excess of $7,100, Howard fell into arrears on those payments. Seven months later, in April 1996, Howard and ISC reached a settlement in which ISC agreed to cancel the past due balance of $7,454.92 and Howard agreed not to disparage ISC in any manner.

Shortly after that settlement, Howard informed ISC that she had discovered a similar product being distributed by Pentech International (“Pentech”) and being sold at Wal-Mart stores. Howard claimed that the original idea for this musical pen “was stolen from her by ISC and divulged to PenTech.” In late September 1996, Howard began picketing outside ISC’s Atlanta office and eventually accused ISC of conspiring to kill her, firing gunshots at her, and attempting to run her over with a car.

ISC introduced evidence to establish that Ran Artsi, the president of Mega Sound Technologies Limited (“Mega Sound”), an Israeli company, invented the “Song Writer Musical Ballpoint Pen” at issue. Artsi testified that he created the prototype for the pen and applied for a patent in 1992, nearly four years before Howard approached ISC with her idea.

Artsi testified that Mega Sound had been formed in late 1991 to start work on a project, the musical pen. According to Artsi, the electronics, components, modules, and prototypes were created in Israel in early 1992, while the plastic molds were created in the Orient in 1993. Artsi testified that although a U. S. patent had been applied for in August 1992, that effort was later abandoned due to the expense. According to Artsi’s uncontradicted testimony, in early 1994, The Disney Store, Limited, in London contracted with Mega Sound to produce a musical pen with a sound chip for the song “A Friend Like Me” from the movie Aladdin.

Artsi’s testimony was supported by nearly 50 documents including correspondence, faxes, purchase orders, technical drawings, and invoices substantiating the existence of Mega Sound’s contract with The Disney Store to make a musical pen featuring the song, “A Friend Like Me.” This documentation includes a purchase order dated June 22, 1994, from The Disney Store for the manufacture of 10,000 of these musical pens by Mega Sound.

Artsi testified that in January 1995 he met Norman Melnick, a representative of Pentech at a trade fair in Frankfurt, Germany. After Melnick expressed interest in the Disney pen, Mega Sound started working on other projects for Pentech to distribute and sell. Artsi testified that he had never heard of Howard’s invention or seen any drawings of the E-raser before learning about her lawsuit.

Melnick confirmed that Pentech distributed the musical pen at issue to retailers including Wal-Mart. Melnick testified that the musical pen from Mega Sound was the “only musical ballpoint that Pentech ever purchased or distributed.” According to Melnick, Pentech “stopped distributing the Musical Pen in 1996 because sales for the product were poor.”

1. Howard asserts that the trial court erred in opening default. We disagree.

Under OCGA § 9-11-55 (b), a prejudgment default may be opened upon any one of three grounds provided that four conditions are met. The three grounds are: providential cause, excusable neglect, and proper case; the four conditions are: (1) showing made under oath, (2) offer to plead instanter, (3) announcement of ready to proceed with trial, and (4) setting up a meritorious defense. Opening default is a matter resting within the sound discretion of the trial court, and the exercise of that discretion will not be disturbed absent a showing of abuse.

Howard attempted service on these foreign corporations under OCGA § 14-2-1510 (b). This statute, however, applies only to those corporations who fail to obtain a certificate to transact business or fail to appoint a registered agent for service as required by law. Process mailed to a corporation must strictly comply with the statutory terms of subsection (b). Even assuming arguendo that Howard was entitled to utilize this statute, she failed to use it properly. Howard sent copies of the summons and complaint via priority mail, certified return receipt with the additional designation of “restricted delivery.” All six sets so mailed were returned to her marked “REFUSED.” Although corporate president Berger testified that these companies maintain their principal offices at 217 Ninth Street in Pittsburgh, Howard sent the summons and complaint by certified mail, restricted delivery, to 903 Liberty Avenue and 701 Smithfield Street.

When Howard designated that the mail be processed via “restricted delivery,” she enhanced the complexity of service and made it less likely for the addressees to receive the mail intended for them. Howard also failed to direct the mail to the appropriate address of the principal office. Because there is considerable doubt that Howard complied with the requirements of OCGA § 14-2-1510 (b), service was arguably defective. Defective or doubtful service makes out a proper case for opening default.

The petition to open default complied with the statutory requirements set forth in OCGA § 9-11-55 (b). The defendants announced they were ready to proceed with trial and supported the motion with evidence. In a supporting affidavit, Berger testified that he did not learn about the lawsuit untii after default; Berger denied conspiring with Pentech or selling or appropriating Howard’s invention; and he asserted having a complete and meritorious defense to all claims. In these circumstances, the trial court did not abuse its discretion in opening default.

2. Howard contends the trial court erred in granting summary judgment. Howard’s complaint contains four counts: negligence, breach of contract, fraud and deceit, and misrepresentation. Her entire case, however, hinges on her claim that ISC breached the contract, engaged in fraud and deceit, and misrepresented facts to her by divulging confidential information to Pentech about her invention enabling Pentech to market her creation with impunity.

On summary judgment, a defendant can prevail by pointing out the absence of evidence to support at least one essential element of a plaintiff’s claim. Here, the record lacks any evidence that ISC negligently or improperly disclosed information about Howard’s invention to Pentech. On the contrary, the evidence shows that Mega Sound was already producing the musical pen in question well before Howard first broached her concept to ISC and that Pentech was already distributing the musical pen in question before Howard paid her first visit to ISC. In the absence of some evidence that ISC violated a duty and thereby caused harm to her, summary judgment as to the negligence claim was properly granted.

The gist of Howard’s breach of contract claim is that the defendants “disclosed, released and sold Plaintiff’s idea to others,” and that they placed her “confidential invention on the market” without her knowledge or consent. But it is undisputed that Howard and ISC executed a settlement agreement expressly covering “all differences of any kind,” pertaining to the original contract. Howard’s signature appears beneath the statement: “I agree that this is in full settlement of all differences between Invention Submission Corporation and myself.” Notwithstanding the plain and unambiguous terms of the settlement agreement, Howard sought to enforce certain terms of the original contract. Having pierced the pleadings on this claim, ISC was entitled to summary judgment.

An action for fraud requires proof of five elements: a false representation by defendant, scienter, an intent to induce plaintiff to act or refrain from action, reliance upon the representations, and damages caused as a result of that reliance. When evidence is lacking as to any essential element, a fraud claim cannot stand. Here, the record does not contain evidence that ISC intended to deceive Howard or induced her to act or to refrain from acting. Nor is there evidence that ISC misrepresented the marketability of the invention or attempted to dissuade her from pursuing it. On the contrary, it appears that the musical pen concept was, in fact, an intriguing idea, but that someone else was first to market it, albeit unsuccessfully.

Decided June 30, 2000

Lynnell F. Howard, pro se.

Sell & Melton, Jeffrey B. Hanson, for appellees.

After ISC came forward with overwhelming evidence negating an essential element of each claim, Howard could no longer rest on her pleadings but needed to point to specific evidence that would show a material issue of disputed fact. This she failed to do. Summary judgment was appropriately granted.

Judgment affirmed.

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

       Martin S. Berger, the president of Technosystems Consolidated Corporation, Intromark, Inc., and ISC, testified that Intromark and ISC are “wholly owned subsidiaries” of Technosystems, a Delaware corporation. According to Berger, Intromark and ISC are “corporations organized and operating under the laws of the Commonwealth of Pennsylvania.”

       None of these allegations are raised in Howard’s lawsuit.

        Pulliam v. Nichols, 202 Ga. App. 95, 96 (413 SE2d 215) (1991).

        Ellerbee v. Interstate Contract Carrier Corp., 183 Ga. App. 828, 834 (4) (360 SE2d 280) (1987).

        Pulliam, supra, 202 Ga. App. at 96.

        Spiegel, Inc. v. Odum, 153 Ga. App. 380, 382 (265 SE2d 297) (1980).

        Hester v. Human, 211 Ga. App. 351, 353 (2) (439 SE2d 50) (1993).

       Id.

       See Brunswick Hardware Co. v. Bingham, 107 Ga. 270, 273-274 (33 SE 56) (1899) (improper attempt at substituted service on nonresident authorized setting aside default judgment). Compare Ellerbee, supra, 183 Ga. App. at 834 (4).

        Clements v. United Equity Corp., 125 Ga. App. 711 (188 SE2d 923) (1972) (when conditions precedent are met, trial court has wide discretion to open prejudgment default).

        Hambrick v. B. G. Swing Games Mgmt., 267 Ga. 597, 599 (481 SE2d 816) (1997).

       Howard offered some evidence suggesting that ISC provided submission material about her musical pen to Pentech in January 1996. But even if true, that would have occurred after the musical pen was already being marketed by Pentech.

        Tuggle v. Helms, 231 Ga. App. 899, 903 (2) (499 SE2d 365) (1998).

        T & R Custom, Inc. v. Liberty Mut. Ins. Co., 227 Ga. App. 144, 145 (1) (488 SE2d 705) (1997).

        Gantt v. Bennett, 231 Ga. App. 238, 240 (1) (499 SE2d 75) (1998).

        Brown v. Buffington, 203 Ga. App. 402 (416 SE2d 883) (1992).

       The record contains a consent decree apparently entered in February 1994 in Civil Action No. 93-616, in United States District Court for the Western District of Pennsylvania. In Fed. Trade Comm. v. Invention Submission Corp., Western Invention Submission Corp., Intromark, Inc., Technosystems Consolidated Corp., and Martin S. Berger, individually, these defendants agreed to pay a judgment in the amount of $1,200,000 to the FTC and agreed to furnish certain disclosures to their clientele to avoid making misrepresentations.

        Collins v. Byrd, 204 Ga. App. 893, 894 (1) (420 SE2d 785) (1992).


text:
    A00A0800.
    BATTLE v. THE STATE.
    (536 SE2d 761)
   Phipps, Judge.

Earkus Battle appeals his convictions of two counts of selling cocaine and one count of possession of a firearm by a convicted felon. He asserts that the trial court erred in admitting, under the necessity exception to the hearsay rule, out-of-court statements made by Avis Jones to narcotics agents Dechon Grant and Rick Galbreath. Because we find that the trial court properly admitted Jones’s out-of-court statements, we affirm.

On November 8, 1996, Jones went to the Columbus Metro Narcotics Task Force office and informed Agents Grant and Galbreath that she could buy crack cocaine from several persons, including Battle. Battle then became the subject of a task force investigation. Later that same day, Grant and Galbreath placed a body wire on Jones and followed her to Battle’s home, where she was to buy cocaine. After the transaction, Jones met the agents at a predetermined location and gave them cocaine. She then gave an audiotaped interview, informing Grant that she had bought the cocaine from Battle. An audiotape of Jones’s conversation with Battle captured her asking him to sell her cocaine, but it did not record direct evidence that a sale actually occurred.

Later that day, Jones was sent back to Battle’s apartment to buy more cocaine. Agents again audiotaped Jones’s conversation with Battle via body wire. After leaving Battle, Jones turned over more cocaine to the agents and gave another audiotaped interview, this time with Galbreath. Again, she identified the seller as Battle. The audiotape of Jones and Battle’s conversation captured Battle agreeing to sell Jones more cocaine; like the first tape, it did not record direct evidence that the sale was completed. On November 22, 1996, agents arrested Battle for the two November 8 sales.

In late December, Jones called the task force office, and Grant and Galbreath went to her home to meet with her. She told them that she had received threatening phone calls from Battle and that he knew she had turned him in. Shortly before Grant and Galbreath had arrived at Jones’s home, Battle had called her and asked her to “go off and ride with him for a few minutes to . . . maybe try and work this thing out. . . .” To Grant, she appeared to be very frightened. She indicated that based upon the type of person she knew Battle to be, she believed he would harm her; he knew where she lived; and she had seen his car twice in the vicinity of her home. She stated that she might leave the area if the situation continued. Grant and Galbreath encouraged her not to leave, saying they would do everything in their power, including house checks, to make sure she was safe.

On March 13, 1997, Battle was indicted. On March 27, he filed a waiver of arraignment and demand for list of witnesses. The next day, the State mailed Battle a witness list. Jones was not listed as a witness because the State intended to protect her identity unless disclosure became necessary for trial.

The case was placed on a trial docket for April. Initially, the parties engaged in plea negotiations, and both sides were hopeful that a plea bargain would be struck. However, the parties were not able to reach an agreement. The case remained on trial dockets for June, July, and August without being called to trial. By September, the State’s attorney had become concerned that a plea bargain would not be reached and that the case would be called to trial soon.

Until then, the State’s attorney had not known Jones’s identity. She asked Grant for that information in September and asked him to locate Jones and make sure that she was still available to testify.

Around September 23, 1997, Grant and Galbreath went to Jones’s home. Jones’s mother informed them that Jones had moved to Hot Springs, Arkansas, and she gave them her phone number and address there. Shortly thereafter, Grant contacted Jones by phone. Jones stated that she was willing to testify and would return to Columbus to do so if needed. Jones also agreed to call the State’s attorney regarding the case.

Grant gave the State’s attorney Jones’s Arkansas phone number and address. On September 24, the State’s attorney sent a letter to Battle’s attorney notifying him that the State planned to call Jones as a witness and providing Jones’s Arkansas address.

Jones never called the State’s attorney. The State’s attorney placed several calls to Jones’s phone number in Arkansas, but Jones did not return her calls.

Several days after he had spoken with Jones, Grant attempted to call her again to make sure that she was still willing to contact the prosecutor and return to testify. Her phone had been disconnected or was out of service. Grant then spoke with a sheriff’s deputy in Arkansas about locating Jones.

On October 6, the State’s attorney mailed to the Hot Springs, Arkansas prosecutor’s office a summons for Jones and a proposed order declaring her a material witness and ordering that she be taken into custody and delivered to Georgia law enforcement authorities. On November 7, a representative of the Arkansas prosecutor’s office wrote to the State’s attorney that the sheriff’s department was “unable to effectuate service on Avis Jones.”

Grant went to Jones’s home in Columbus several more times. Each time, he was told by her relatives that she had not returned to Columbus, that they did not know her whereabouts, and that they had not heard from her. Grant’s last visit to Jones’s home was on February 17, 1998.

At a hearing the next day, the court ruled that it would admit Jones’s out-of-court statements under the necessity exception to the hearsay rule. Battle was tried beginning March 18. Jones’s taped statements were admitted and played for the jury. Battle asserts the court erred in admitting the statements because the State did. not exercise sufficiently diligent efforts to secure live testimony from Jones.

OCGA § 24-3-1 (b) provides that “[hjearsay evidence is admitted only in specified cases from necessity.” For the necessity exception to apply, there must be a necessity for the admission of the statement, and the statement must be attended by particularized guarantees of trustworthiness. The “necessity” requirement includes three components: (1) that the declarant of the statement be unavailable to testify; (2) that the statement be relevant to a material fact; and (3) that the statement be more probative of that material fact than other evidence that might be procured and offered. If the declarant is alive and her testimony is compellable, proof of unavailability demands a showing that she could not be located after reasonable efforts to find her and secure her presence. “When a witness cannot be found after diligent search because they are hiding to avoid testifying, necessity has been shown. [Cit.]”

It is within the sound discretion of the trial court to determine the unavailability of a witness and a party’s diligence in searching for that witness. This determination will not be disturbed unless a manifest abuse of discretion is shown. Battle focuses his argument solely on the State’s diligence in securing Jones’s presence at trial. He does not challenge other aspects of admissibility under the necessity exception.

The State discovered that Jones was unavailable and began its efforts to locate her almost six months before Battle was tried. Investigators went to her Columbus home seven or eight times trying to find her or to get updated information on how she might be located. Upon learning that she had moved to Arkansas, they contacted her there and obtained assurance that she would return to Georgia to testify. WTien it became reasonably apparent that she did not intend to cooperate in the prosecution, the State enlisted the assistance of local Arkansas authorities and attempted to have her forcibly returned to testify. As late as the day before the evidentiary hearing, the State had not abandoned its efforts to locate Jones. In light of these facts, we find that the State exercised due diligence in searching for Jones.

Battle argues that this case is analogous to Rosser v. State. We disagree. In Rosser, the witness’s name had never appeared on a witness list; the witness was not a confidential informant; the State did not begin to search for the witness until three or four days before the trial and then searched no more than five hours for her; and there was no evidence that the witness was hiding to avoid testifying.

Accordingly, we find no abuse of discretion in the trial court’s admission of Jones’s out-of-court statements.

Judgment affirmed.

Johnson, C. J., and Mikell, J., concur.

Decided June 30, 2000.

Worthington & Flournoy, Thomas M. Flournoy, Jr., for appellant.

J. Gray Conger, District Attorney, Julia Slater, Assistant District Attorney, for appellee.

        Mallory v. State, 261 Ga. 625, 627 (2) (409 SE2d 839) (1991).

        Chapel v. State, 270 Ga. 151, 155 (4) (510 SE2d 802) (1998).

       See Wilbourne v. State, 214 Ga. App. 371, 373 (2) (448 SE2d 37) (1994); Lane v. Tift County Hosp. Auth., 228 Ga. App. 554, 561 (2) (492 SE2d 317) (1997).

       Id., citing Adams v. State, 191 Ga. App. 16, 17 (2) (381 SE2d 69) (1989).

       See Tolbert v. State, 239 Ga. App. 703, 704 (1) (521 SE2d 827) (1999).

       Id.

       Compare Walton v. State, 272 Ga. 73, 74 (3) (526 SE2d 333) (2000) (holding that the State showed due diligence in unsuccessful efforts to locate out-of-state witness).

       211 Ga. App. 402 (1) (439 SE2d 72) (1993), rev’d on other grounds, Livingston v. State, 268 Ga. 205, 209 (1) (486 SE2d 845) (1997).


text:
    A00A0846.
    EXUM et al. v. MELTON et al.
    (536 SE2d 786)
   Miller, Judge.

In June 1994, Albert L. Exum, individually and as administrator of the estate of his late wife, commenced this medical negligence action against Dawn Aeree, M.D., Howard L. Melton, M.D., Melton’s professional corporation, and South Georgia Medical Center in the State Court of Lowndes County. Within two weeks, service of process on Melton was attempted at his office by delivering the summons and complaint into the hands of Kristie Brown, ostensibly at Melton’s “most notorious place of abode. . . .” Service on the corporation was made by leaving a copy of the summons and complaint with Brown, ostensibly “in charge of the office and place of doing business of said Corporation in this County.” Aeree, Melton, and the corporation jointly answered, raising, inter alia, objections to jurisdiction, venue, and the sufficiency of service of process.

In January 1995, defendants successfully moved to extend the time for discovery until the entry of the pretrial order. In January 1998, plaintiffs dismissed the claim against South Georgia Medical Center with prejudice, and in the following September, Melton and his corporation moved to dismiss for insufficiency of service of process or, alternatively, to transfer the case to Cook County, where defendant Aeree resided. This motion was granted by dismissing the case against Melton and his corporation and by transferring the case against Aeree to Cook County. On appeal, Exum contends dismissal was erroneous because (1) the trial court had no jurisdiction to rule on the motion, (2) service was sufficient, (3) defendants waived any insufficiency of service of process, and (4) Melton was personally served promptly after the motion. We affirm the dismissals.

1. Jurisdiction. Exum first argues the trial court had no jurisdiction to consider the motion to dismiss, because venue (and so personal jurisdiction) vanished with the dismissal of the Medical Center, the sole resident of Lowndes County.

Under former OCGA § 9-10-31 and current OCGA § 9-10-31 (a), alleged joint tortfeasors, residing in different counties, are subject to suit in any county in which one or more defendants reside. If the sole resident defendant is dismissed or is found not liable, venue as to the remaining defendants is said to vanish, in which case the court is without personal jurisdiction to enter a binding judgment on the merits against the nonresident defendants. Personal jurisdiction and venue are defenses for the defendant to raise, and may be waived, even though properly preserved in the pleadings. Here, the order granting defendants’ OCGA § 9-11-12 (b) (5) motion to dismiss due to insufficiency of service of process is a matter of abatement only, and not a judgment on the merits. After venue vanishes, the trial court still retains jurisdiction to order the case transferred to a court where venue is appropriate. In our view, the trial court also retains jurisdiction to consider and grant a defendant’s motion to dismiss on a matter of abatement, rendering the need to transfer moot.

2. Waiver. The alleged negligence occurred in April 1993, suit commenced in June 1994, discovery lasted four years, and then in September 1998, after the two-year statute of limitation and the five-year statute of ultimate repose had lapsed, defendants moved to dismiss due to lack of proper service.

(a) Although Exum calls this defense “boilerplate,” such rhetoric does not deprive the timely objection to service of its validity. Receipt of the answer raising insufficiency of service of process should have put Exum and his counsel on notice of a possible jurisdictional flaw, invoking the related duty to exercise the greatest possible diligence to perfect timely service. Depositions and interrogatories are available to discover any evidentiary basis for such “boilerplate” defenses, and a request for admissions can promptly and economically confirm or dispel the sufficiency of service of process. If a defendant denies the sufficiency of service, he can be served again, or an acknowledgment of service of the summons and complaint can be requested.

(b) Properly preserved defenses under OCGA § 9-11-12 (b) can be raised as late as the pretrial conference, although they are waived if omitted from any ensuing pretrial order. Waiver of a Civil Practice Act § 12 (b) (5) defense by any other conduct will be found only if the party acts in a manner so manifestly indicative of an intention to relinquish a known right or benefit that no other reasonable explanation of its conduct is possible.

Here, there is no pretrial order limiting the issues for trial, and the case does not appear on any trial calendar. Engaging in extensive discovery does not conclusively manifest the intent to relinquish a known right or benefit, nor does it necessarily amount to consent to jurisdiction. In precedents finding a waiver of a valid objection to service of process, defendant either omitted the claim from the pretrial order or else substantially participated in litigation on the merits before raising the objection for decision by the court. No such conduct was engaged in by Dr. Melton or his professional corporation. The trial court correctly concluded that no waiver occurred.

3. Valid service. The sufficiency of service is a question of fact for the trial court, whose determinations will not be disturbed on appeal if supported by evidence.

It is -undisputed that Dr. Melton was not personally served. Rather, the summons and complaint for both Dr. Melton and his professional corporation were accepted at his office by Brown, an LPN who was the office nurse. Brown’s duties were to prepare patients for the doctor, give shots, take blood pressure, put patients in rooms, type charts, assist in minor surgeries, and clean up rooms after-wards. In June 1994, Dr. Melton (or his corporation) had a separate full-time employee, Missy Johnson, who was the office manager. Johnson ran the office, submitted insurance claims, and answered the telephone. Nurse Brown would help out answering the telephone. Johnson would greet patients and hand the chart to Nurse Brown, who would lead the patient to an examination room. Nurse Brown had no independent recollection of accepting the summons and complaint for either Dr. Melton or his corporation, but confirmed that, had a deputy sheriff approached her with some papers for Dr. Melton, then she probably would have put them on his desk with the rest of the mail. She also confirmed that she had never been instructed not to accept papers from a deputy. Additionally, Dr. Melton never expressly authorized Nurse Brown to act as his agent for service of process or for any other purpose.

By affidavit, Dr. Melton testified that he is the president and registered agent for service of process of his professional corporation, which is no longer in existence, and that he never gave Nurse Brown permission to accept service for himself personally or for his corporation.

(a) OCGA § 9-11-4 (d) (7) directs that the summons and complaint shall be served together on the defendant personally, or by leaving copies with a resident of suitable age and discretion at defendant’s dwelling, or “by delivering a copy of the summons and complaint to an agent authorized by appointment or by law to receive service of process.” “Unless [the alleged agent] can in some way bind the [purported principal] in some business transaction, then he is not its agent.” The evidence that Nurse Brown was not an authorized agent to accept service on behalf of Dr. Melton personally, or for any other purpose, is sufficient to support the trial court’s conclusion that service on Dr. Melton was insufficient.

Decided June 30, 2000

Bird, Ballard & Still, William Q. Bird, J. Converse Bright, for appellants.

Watson, Spence, Lowe & Chambless, Thomas S. Chambless, Charles K. Wainright II, for appellees.

(b) A domestic corporation shall be served by delivering the summons and complaint to the president or other officer of the corporation, secretary, cashier, managing agent, or other agent thereof.

The defendant professional corporation was not served by delivering the summons and complaint to Dr. Melton, its president, nor to Johnson, the office manager. Nurse Brown’s duties were primarily medical not managerial. Delivery of the summons and complaint to a medical assistant who serves periodically as a receptionist when the office is otherwise empty is insufficient service on the corporate defendant.

4. Personal service on Dr. Melton after the running of the statute of ultimate repose did not vitiate the motion to dismiss under OCGA § 9-11-12 (b) (5) nor render the dismissal erroneous. A second attempt at service four years after the answer raised the insufficiency of service would authorize a conclusion that plaintiff did not use all due diligence to perfect service as quickly as possible, leading to a dismissal with prejudice.

Judgment affirmed.

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

        Ford v. Uniroyal Goodrich Tire Co., 270 Ga. 730, 733 (3) (514 SE2d 201) (1999).

        Collipp v. Newman, 217 Ga. App. 674, 675 (458 SE2d 701) (1995).

        Gary v. Hobson, 208 Ga. App. 781, 782 (431 SE2d 753) (1993).

       “[A] person may waive or renounce what the law has established in his favor when he does not thereby injure others or affect the public interest.” OCGA § 1-3-7.

        Wilson v. Ortiz, 232 Ga. App. 191, 194 (1) (a) (501 SE2d 247) (1998).

        Collipp v. Newman, supra, 217 Ga. App. at 676 (trial court erred in denying motion to trsinsibr)

       See Culwell v. Lomas & Nettleton Co., 145 Ga. App. 519, 522-523 (2) (244 SE2d 61) (1978), rev’d on other grounds, 242 Ga. 242 (248 SE2d 641) (1978) (holding judicial economy and justice authorized trial court’s direction of verdict against nominal defendant who had not been served, because judgment on that directed verdict did not adjudicate any rights). We recognize there is obiter dicta arguably to the contrary in Hubbert v. Williams, 175 Ga. App. 393, 396 (3) (333 SE2d 425) (1985), cited in Airgrowers, Inc. v. Tomlinson, 230 Ga. App. 415, 417 (496 SE2d 528) (1998). Neither case addressed the jurisdiction of the original court to decide a matter of abatement under the Civil Practice Act, OCGA § 9-11-12 (b) (5). Each case recognized that, when a defendant objects to venue, dismissal of the action for want of venue no longer is an authorized remedy after the promulgation of the Uniform Transfer Rules, 251 Ga. 893-895 (1984), and in that context, transfer is the sole authorized action.

       OCGA § 9-3-71 (a).

       OCGA § 9-3-71 (b), (c).

        Flemister v. Hopko, 230 Ga. App. 93, 95 (2) (495 SE2d 342) (1998) (so-called “boilerplate” language in answer alerts plaintiff that service may not have been proper).

        Roberts v. Bienert, 183 Ga. App. 751, 752 (1) (360 SE2d 25) (1987). See also Patterson

        v. Johnson, 226 Ga. App. 396, 398 (486 SE2d 660) (1997).

       See Humphries v. McWhorter & Brightwell, 25 Ga. 37, 39 (1858) (defendant’s acknowledgment of service and waiver of further process sufficient to give court personal jurisdiction over him). Compare Stamps v. Bank South, N.A., 221 Ga. App. 406, 409 (1) (471 SE2d 323) (1996) (acknowledgment of service of complaint does not itself waive right to service of summons).

       See Maalouf v. Knight, 237 Ga. App. 509, 510 (1) (515 SE2d 650) (1999) (failure to raise defenses of insufficient service, lack of personal service, and improper venue either in the answer or by motion filed before or with the answer constitutes waiver under OCGA § 9-11-12 (h) (1)). Thus, a general appearance amounts to consent to jurisdiction, waiving any valid jurisdictional defects. Ga. Power Co. v. O’Bryant, 169 Ga. App. 491, 492 (313 SE2d 709) (1983) (whole court).

        Long v. Marion, 257 Ga. 431, 433 (2) (360 SE2d 255) (1987).

        Heis v. Young, 226 Ga. App. 739, 740 (3) (487 SE2d 403) (1997).

        Joyner v. Schiess, 236 Ga. App. 316, 318 (512 SE2d 62) (1999); Garrett v. Godby, 189 Ga. App. 183, 185 (2) (375 SE2d 103) (1988); Glass v. Byrom, 146 Ga. App. 1, 2 (245 SE2d 345) (1978). And see Weems v. Weems, 225 Ga. 154, 155-156 (2) (166 SE2d 352) (1969) (no estoppel to contest service despite filing of counterclaim, where written motion to dismiss filed simultaneously with answer and counterclaim).

         Wheeler’s, Inc. v. Wilson, 196 Ga. App. 622 (396 SE2d 790) (1990), is physical precedent only because one judge concurred in the judgment only. Court of Appeals Rule 33 (a).

        Ga. Power Co. v. O’Bryant, supra, 169 Ga. App. 491; Long v. Marion, supra, 257 Ga. at 433 (2).

        In the Interest of D. R. W., 229 Ga. App. 571, 575 (2) (494 SE2d 379) (1997); Harrell v. Gomez, 174 Ga. App. 8, 10 (3) (329 SE2d 302) (1985); Wheeler’s, Inc. v. Wilson, supra, 196 Ga. App. at 626 (physical precedent only).

        Garrett v. Godby, supra, 189 Ga. App. at 184 (1).

       (Citations omitted; emphasis supplied.) Orkin Exterminating Co. v. Thornton, 111 Ga. App. 636, 637 (142 SE2d 422) (1965). Accord Southeastern Fidelity Ins. Co. v. Heard, 123 Ga. App. 635, 638-639 (3) (b) (182 SE2d 153) (1971) (discretionary authority to act for principal distinguishes agent from mere servant or employee).

        Bible v. Hughes, 146 Ga. App. 769, 771 (3) (247 SE2d 584) (1978) (service on secretary of physician at office address is not personal service on physician unless secretary was appointed as agent for such service). Accord Nazli v. Scott, 203 Ga. App. 523, 525 (3) (417 SE2d 187) (1992) (service on office manager does not comply with OCGA § 9-11-4 (d) (7) and so is insufficient as to physician individually).

       OCGA § 9-11-4 (d) (1).

       See, e.g., G. J. Soracco, M.D., P.C. v. Domineck, 233 Ga. App. 166, 169 (502 SE2d 732) (1998) (Beasley, J., concurring specially).

       See Wade v. Whalen, 232 Ga. App. 765 (1) (504 SE2d 456) (1998) (trial court did not abuse its discretion in ruling that service eight months after the statute of limitation ran did not relate back).


author: Barnes, Judge.

text:
    A00A0851.
    OWENS v. AMERICAN REFUSE SYSTEMS, INC. et al.
    (536 SE2d 782)
   Barnes, Judge.

William Owens sued American Refuse Systems, Inc. (“ARS”), Waste Management Partners, Inc. (“Waste Management”), John Bellamy, Jr., and Continental Casualty Company (“CNA”), alleging that ARS destroyed a pressure tank which ARS owned, but had promised to keep safe for Owens, so that he could pursue a product liability case against a third party. Because ARS destroyed the tank, he contends that he had to dismiss his product liability case, which left the defendants responsible for damages due to spoliation of evidence, breach of contract based on promissory estoppel, and negligence, among other claims. The trial court granted summary judgment to all defendants, and Owens appeals. For the reasons that follow, we affirm.

Owens suffered an eye injury in October 1993 when the cap blew off a pressure tank used to clean the inside of the garbage truck to which it was attached. When Owens was injured, he worked for ARS, which later became a wholly owned subsidiary of Waste Management.

An ARS employee and an independent mechanic testified that, while the truck was being repaired in June 1995, an unknown person severed the truck’s airline and removed the pressure tank that caused Owens’ injury. Another witness employed by a different waste facility testified that he saw an ARS truck driver dump a tank resembling the one that injured Owens and that later that day the tank was hauled away with other trash to a scrap yard in Winder. Owens became aware that the tank had been removed and contacted his lawyer, who, in turn, contacted ARS’s lawyer. ARS retrieved it from the Winder scrap yard shortly thereafter.

In October 1995, ARS, through its insurer CNA, settled Owens’ workers’ compensation claim. Also in October 1995, Owens brought a product liability suit against the tank’s manufacturer. The tank remained in ARS’s possession until sometime in February or March 1996, when ARS sold it for. scrap metal.

The trial court concluded that Georgia does not recognize spoliation of evidence as a separate tort and that even under the foreign authority Owens cited, he would be “unable to show any injury or any damages from the loss of the tank” because he voluntarily dismissed his product liability case. The trial court also found that all of Owens’ other causes of action failed because no evidence established that the defendants had a legal duty to preserve the tank.

1. On appeal from the grant of summary judgment, this Court conducts a de novo review of the record, construing the evidence and all inferences therefrom in favor of the nonmoving party. Maddox v. Southern Engineering Co., 231 Ga. App. 802-803 (500 SE2d 591) (1998). Further, a judgment right .for any reason must be affirmed. Simmons v. Boros, 255 Ga. 524, 525 (341 SE2d 2) (1986).

2. Owens argues that the trial judge erred in concluding that Georgia does not recognize spoliation of evidence as a separate tort. We find no error. In Gardner v. Blackston, 185 Ga. App. 754, 755 (1) (365 SE2d 545) (1988) (physical precedent only), we stated in dicta that Georgia law. does not recognize spoliation of evidence as a separate tort. We again looked at the issue of spoliation as an independent tort in Sharpnack v. Hoffinger, 231 Ga. App. 829 (499 SE2d 363) (1998). We noted that the tort has been recognized in some jurisdictions, including California, Florida, and Alaska, and not recognized in others. We further noted that

[t]he underlying goal of the spoliation tort and related theories is to provide a remedy for prejudice to an opportunity to obtain compensation for the injuries upon which the underlying litigation is predicated. In other words, the spoliation tort involves interference with the opportunity to win a lawsuit.

Id. at 831. However, because the court had already determined that the plaintiff in Sharpnack assumed the risk of his injury, he could not establish a meaningful link between his underlying claims and the alleged spoliation. Therefore we affirmed the trial court’s grant of summary judgment to the defendant.

We join the majority of jurisdictions and decline to recognize an independent third-party tort of evidence spoliation in this case. A vigilant litigant already has traditional means of securing evidence available. Those means include, for example, a court order directing preservation, along with remedies for a violation of that order, or a contractual agreement with the property owner. Therefore, the trial court did not err in granting summary judgment to the defendants on Owens’ evidence spoliation claim. See Sharpnack v. Hoffinger, supra, 231 Ga. App. at 830-831.

3. Owens further contends that he is entitled to pursue his promissory estoppel claim against ARS, Waste Management, and CNA. He asserts that two letters exchanged between his attorney and ARS’s attorney support his contention that the parties had an agreement wherein ARS promised to keep the pressure tank safe, and Owens relied on that promise.

On July 6, 1995, less than a month after the pressure tank that caused Owens’ injury first disappeared and was then retrieved, Owens’ lawyer wrote a letter to the attorney representing ARS in Owens’ workers’ compensation claim. In the letter, Owens’ lawyer asked for possession of the pressure tank and noted that it would serve both parties’ interests if ARS secured the tank. In an August 10, 1995 letter to Owens’ attorney, the workers’ compensation attorney wrote that ARS had secured possession of the air tank and offered to make it available for inspection at a mutually convenient time and place.

The workers’ compensation attorney testified that he did not think he wrote the August 10, 1995 letter in response to the July 6, 1995 letter, because Owens’ lawyer was “a very persistent person” who would not have let him go a month and four days before confirming that he had the tank.

The workers’ compensation attorney further testified that he offered possession of the pressure tank to Owens’ attorney in October 1995, when they met with representatives of the defendants in Owens’ product liability action, including a defense expert, to inspect the tank at ARS’s Athens facilities. Owens’ attorney “refused to take the tank as he indicated that he wanted to avoid any appearance of impropriety,” the workers’ compensation lawyer said. Owens denies his lawyer was offered possession of the tank at the inspection, although his attorney did not submit an affidavit to that effect.

As previously mentioned, ARS sold the tank for scrap in February or March 1996, approximately eight months after the August 10, 1995 letter stating that the “Employer/Insurer” had secured possession and four months after the product liability defendants’ inspection.

The threshold issue is whether the August 10,1995 letter constitutes a contract between the parties. The defendants argue that the terms of the alleged contract are too uncertain to be enforced, pointing to the lack of time frame specified, for example. “ ‘In accordance with OCGA § 13-3-1, to form a valid contract there must be a subject matter, a consideration, and mutual assent by all parties to all the terms.’ ” (Citation omitted.) Green v. Johnston Realty, 212 Ga. App. 656, 658 (1) (442 SE2d 843) (1994).

OCGA § 13-3-44 (a) created promissory estoppel by statute. For promissory estoppel to be applied, there must be justified reliance. Fidelity & Deposit Co. v. West Point Constr. Co., 178 Ga. App. 578, 579 (1) (344 SE2d 268) (1986). Owens failed to obtain either a discovery order or a written agreement incorporated into a consent order that the tank be indefinitely preserved. Absent a unilateral promise, promissory estoppel does not apply; here, there was no promise to preserve the tank indefinitely. See generally Mooney v. Mooney, 235 Ga. App. 117, 119 (1) (508 SE2d 766) (1998); Johnson v. Fulton County, 235 Ga. App. 277, 280 (2) (509 SE2d 355) (1998).

In his August 10, 1995 letter, ARS’s lawyer merely stated that the tank was secured and offered to make it available to Owens for inspection. There was no agreement to hold the tank for any specified period of time, and ARS’s lawyer did not indicate that they were accepting terms proposed by Owens’ lawyer. See Patel v. Gingrey Assoc., 196 Ga. App. 203, 205 (2) (395 SE2d 595) (1990); Peachtree Med. Bldg. v. Keel, 107 Ga. App. 438 (1) (130 SE2d 530) (1963). The trial court did not err in granting summary judgment to ARS, Waste Management, and CNA on Owens’ claim for breach of contract.

4. Owens also asserts that Bellamy is liable to him for breach of contract. Owens claims that, after he told Bellamy in October 1995 that he was concerned about the tank disappearing, Bellamy said, “Don’t worry, I assure you that nothing will happen to the tank.” Owens then indicated in his affidavit that he “took John Bellamy at his word.” However, nothing in the record indicates that Owens and Bellamy agreed to specific terms regarding the tank’s security. See Patel v. Gingrey Assoc., supra, 196 Ga. App. at 205; Peachtree Med. Bldg. v. Keel, supra, 107 Ga. App. 438. The trial court did not err in granting summary judgment to Bellamy on Owens’ claim for breach of contract.

5. In light of our holdings in Divisions 3 and 4 that none of the defendants had a contract with Owens, his claim for tortious interference with contractual rights necessarily fails also.

6. Owens contends that his claims for intentional, wilful and wanton infliction of emotional distress present issues of fact for a jury to determine. We disagree. While Georgia recognizes a cause of action for intentional infliction of emotional distress, “in those cases where recovery has been authorized . . . , the defendant’s actions were so terrifying or insulting as naturally to humiliate, embarrass or frighten the plaintiff.” (Citation omitted.) Sanders v. Brown, 178 Ga. App. 447, 449-450 (1) (343 SE2d 722) (1986). We conclude that disposing of the pressure tank “does not reach this level of ‘outrageousness.’ ” Id. at 450.

7. Owens’ claim for inceptive fraud does not present an issue for jury determination either. “When failure to perform a promised act is coupled with evidence that the promisor made the promise with the intention not to perform, inceptive fraud is shown.” (Citation omitted.) Batchelor v. Tucker, 184 Ga. App. 761, 763 (2) (362 SE2d 493) (1987). Owens has presented no evidence that the defendants entered into any agreements, much less evidence they entered into agreements with the intent not to perform.

8. Owens’ remaining enumerations of error regarding his motion to strike portions of an affidavit and objection to the defendants’ amending their answer are moot in light of our previous holdings.

Decided June 30, 2000

Gary C. Harris, for appellant.

Swift, Currie, McGhee & Hiers, Bradley S. Wolff, Erik S. Rodriguez, McLain & Merritt, M. David Merritt, Thomas J. Melanson, Drew, Eckl & Farnham, Bruce A. Taylor, Jr., Laura V. Benesh, for appellees.

Judgment affirmed.

Eldridge, J., concurs. Blackburn, P. J., concurs in the judgment only.

       See Rubin, Tort Reform: A Call for Florida to Scale Back Its Independent Tort for the Spoliation of Evidence, 51 Fla. L. Rev. 345, 355 (April 1999).


author: Smith, Presiding Judge.

text:
    A00A0091.
    BENNETT v. COTTON.
    (536 SE2d 802)
   Smith, Presiding Judge.

Jan K. Bennett appeals from the trial court’s order granting the motion for summary judgment filed by the defendants in the suit brought by Bennett and her husband, Gus J. Bennett, against Builders II, Inc. and its president, James Cotton, in connection with the construction of their residence. Jan Bennett (hereinafter “Bennett”) contends the trial court, for a variety of reasons, erred in entering summary judgment and in casting the total cost of the record on her. We find no merit in Bennett’s contentions, and we affirm both the grant of summary judgment and the trial court’s ruling regarding costs of the record.

In Bennett v. Builders II, 237 Ga. App. 756 (516 SE2d 808) (1999), we affirmed an arbitration award to Gus Bennett against Builders II in connection with the home construction contract. This action was initiated by both Bennetts against Builders II and relates to the same construction. The Bennetts’ present suit was brought in five counts, alleging negligent construction, negligence per se in failure to comply with state and local construction codes, intentional use of defective or substandard materials, deceit in concealing these defects from plaintiffs, intentional fraud, and stubborn litigiousness. The Bennetts sought damages in excess of $100,000, punitive damages, and expenses of litigation. The defendants’ motion for summary judgment was made on the grounds of res judicata and collateral estoppel. Conceding that Bennett was not technically a party to the contract or the prior arbitration proceeding, defendants nevertheless contended that because Bennett is co-owner of the property and actively participated in the arbitration proceeding, she, as well as her husband, should be barred by res judicata and collateral estoppel from proceeding upon this lawsuit based upon the same facts.

The trial court granted the defendants’ motion in a brief order without specifying the basis for its ruling. Bennett appeals, reciting specifically that her husband does not join the appeal and that the appeal is taken only against Cotton individually, not against Builders II.

1. Bennett contends the trial court erred in granting summary judgment on the basis of res judicata and collateral estoppel. She argues that she was neither a signatory to the contract between her husband and Builders II nor a party to the arbitration and the arbitration related solely to the contract and alleged breach thereof, making her tort claims against Cotton outside the scope of the arbitration. Bennett claims, therefore, that neither res judicata nor collateral estoppel applies. We do not agree.

Under Georgia law, preclusion doctrines apply to arbitration proceedings. See, e.g., Centex-Rodgers Constr. Co. v. City of Roswell, 215 Ga. App. 30, 32 (2) (449 SE2d 631) (1994). And preclusion doctrines apply to a cause of action “even if some new factual allegations have been made, some new relief has been requested, or a new defendant has been added. [Cit.]” Medlin v. Carpenter, 174 Ga. App. 50, 51 (2) (329 SE2d 159) (1985) (full concurrence as to Division 2). So the fact that neither Cotton nor Bennett was technically a party to the arbitration proceeding does not prevent application of the doctrines.

Despite her lack of legal training and experience, Bennett has carefully crafted her pleadings and briefs in an attempt to avoid application of the doctrines whose bar she seeks to avoid. She points out that her cause of action is based in tort and she does not rely on the contract between her husband and the construction company. She asserts that no general agency existed between her and her husband, that she did not take orders from her husband, that Cotton dealt with her separately with regard to the construction, and that his misrepresentations to her are the subject matter of this appeal. Notwithstanding this valiant attempt, we conclude that res judicata and collateral estoppel apply in this case to bar Bennett’s suit. OCGA § 9-12-40 provides:

A judgment of a court of competent jurisdiction shall be conclusive between the same parties and their privies as to all matters put in issue or which under the rules of law might have been put in issue in the cause wherein the judgment was rendered until the judgment is reversed or set aside.

All claims for relief that concern “the same subject matter” must be raised. Lawson v. Watkins, 261 Ga. 147, 149 (2) (401 SE2d 719) (1991). Any claims for relief concerning the same subject matter that are not raised are thereafter barred under OCGA § 9-12-40. The contract’s arbitration clause expressly covers “all claims or disputes . . . arising out of or relating to the contract documents, or the breach thereof.” The phrase “arising out of” is broad enough to encompass Bennett’s claims for fraud and deceit. See Robinson-Humphrey Co. v. Williams, 193 Ga. App. 892, 894 (389 SE2d 345) (1989); Medlin, supra (claim “arising out of” same transaction). The damages arise out of the construction of the Bennetts’ home, and only one satisfaction of the same injury is possible. The damages sought by Bennett are the same as those sought in the arbitration proceeding. The only apparent difference is that she now seeks the same damages in tort that her husband previously sought in pursuing his contractual arbitration remedy. Nannis Terpening & Assoc. v. Mark Smith Constr. Co., 171 Ga. App. 111, 113 (1) (318 SE2d 89) (1984).

It is true that Bennett was neither a signatory to the contract nor technically a party to the arbitration. And a husband and wife are generally not privies for purposes of res judicata. Aycock v. Calk, 228 Ga. App. 172, 175-176 (491 SE2d 383) (1997). But “[p]rivies are all persons who are represented by the parties and claim under them, all who are in privity with the parties; the term privity denoting mutual or successive relationship to the same rights of property.” (Citation and punctuation omitted.) Monroe v. Kersey, 207 Ga. App. 108, 109 (5) (427 SE2d 80) (1993). Bennett and her husband are co-owners of the property. In Olson v. Harveston, 158 Ga. App. 65 (276 SE2d 54) (1981), a similar fact situation was presented. This court held that a husband and wife were in privity with respect to a construction contract because of their joint ownership of the property involved in a contractor’s lien foreclosure. Id. at 69 (4). See also Gutherie v. Ford Equip. Leasing Co., 231 Ga. App. 350, 352 (498 SE2d 797) (1998).

The same is true with regard to Cotton and Builders II. Cotton clearly acted in his capacity as the agent for Builders II in negotiating the contract and in executing it. He is clearly in privity with Builders II.

Finally, Bennett cannot have it both ways. If she was not in privity with her husband, Cotton could not have had any duty toward her with regard to the construction, as she was a stranger to the contract, and his alleged misrepresentations to her could not have been material.

Res judicata requires that a party assert all claims that arise out of the underlying facts in one proceeding. As joint owners and therefore privies, the Bennetts were required to seek recovery in one proceeding against Builders II and Cotton for all their claims arising out of the construction of their home. They may not hold some claims in abeyance while others are submitted to binding arbitration.

2. Bennett’s contention that the trial court erred in applying the “economic loss” rule to her claim is, at best, unsubstantiated. But we need not decide whether that rule applies. All Bennett’s remaining contentions regarding the trial court’s entry of summary judgment in favor of appellee are without merit, since summary judgment was proper based upon the bar of res judicata. “A grant of summary judgment must be affirmed if it is right for any reason.” (Citation and punctuation.omitted.) MALAGA Mgmt. Co. v. John Deere Co., 208 Ga. App. 764, 767 (5) (431 SE2d 746) (1993).

3. Bennett directed the clerk to omit all but specified portions of the record. Appellee designated the remainder of the record, under OCGA § 5-6-42. Bennett maintains the trial court erred in ordering her to pay the entire cost of the record in the record on appeal.

We held in Bennett v. Builders II, “[T]he cost of additional portions of a record designated by the appellee that are necessary to complete the record on appeal must be paid by the appellant; only if considered unnecessary on appeal, should the costs be taxed against the appellee.” (Citations and punctuation omitted.) Id. at 758. Apportionment of costs is the trial court’s decision to make, and the trial court’s decision will be affirmed absent a “manifest abuse of discretion.” Jones v. Spindel, 239 Ga. 68, 70-71 (2) (235 SE2d 486) (1977); Morris v. Budd, 226 Ga. App. 455, 458 (486 SE2d 682) (1997). It is the appellant’s burden to show error by the record. Stover v. Candle Corp. of America, 238 Ga. App. 657, 661 (520 SE2d 7) (1999). Because Bennett has not given record citations to any specific portions of the record she deems unnecessary, we are unable to agree with her that the trial court abused its discretion in denying Bennett’s request to apportion the costs. Morris, supra.

Judgment affirmed.

Pope, P. J., and Miller, J., concur.

Decided July 5, 2000.

Jan K. Bennett, pro se.

Misner, Scott & Grate, Steven J. Misner, for appellee.

       Bennett appeals pro se, informing this court that she is not a lawyer and has limited past experience with the law as an administrative hearing officer for an institution of higher learning and as liaison with several United States Attorneys and state attorneys general on behalf of a federal agency. She states that in briefing this appeal she relied on briefs previously filed by her former counsel. Bennett’s husband is an attorney with experience in business as well.

       The briefs on appeal are captioned “Jan K. Bennett v. James Cotton.” The notice of appeal is captioned “Jan K. Bennett v. Builders II, Inc. and James Cotton,” although the document recites expressly that “no appeal is sought as regards the Defendant Builders II, Inc.”

       Bennett correctly points out that in Olson the wife relied on the contract and attached it to her complaint. But we are persuaded that this is a distinction without a difference, since the issue of privity between the co-tenants is identical.


text:
    A00A0452, A00A0458.
    In the Interest of J. H. et al., children (two cases).
    (536 SE2d 805)
   Phipps, Judge.

Both parents appeal the juvenile court order terminating their parental rights to J. H. and M. H. They assert two grounds for appeal: (1) the juvenile court lacked jurisdiction because the children are Mexican citizens; and (2) the evidence was insufficient to support the termination of their parental rights. Because we find that the juvenile court had jurisdiction and that the evidence was sufficient, we affirm.

The mother is a Mexican citizen illegally residing in the United States. She speaks little English and cannot read or write in English. While living in Georgia, she gave birth to two sons, M. H. on May 19, 1997, and J. H. on June 24, 1998. The biological father of both boys is a citizen of Guatemala and a resident of the United States. In February 1998, the parents were living together in Marietta, Georgia. The mother was employed by Tip Top Poultry, and the father was a construction worker.

While taking M. H. to the doctor for a routine physical, the mother met Alita Gonzalez at the clinic and discovered that Gonzalez lived nearby and provided day care for several children in her home. Although the mother did not inquire into Gonzalez’s background or check her references, she began leaving M. H. in her care while she was working. At some point, the mother noticed that Gonzalez was not taking good care of the children — she would leave them in the living room unattended while she slept. The mother noticed that the men living with Gonzalez (her husband and three other men) began drinking at the house on Thursday and continued through the weekend. The mother also noticed that after two months, no other children were being left in Gonzalez’s care.

On Friday, February 13, 1998, the mother picked up M. H. from Gonzalez’s house after work and noticed that his head was swollen and bruised behind both ears. She asked Gonzalez what had happened, but Gonzalez said that she did not know and suggested he had a cold. Despite the fact that over the weekend M. H. cried at night and his condition got worse, on February 16, the mother left M. H. in Gonzalez’s care and went to work.

There is conflicting testimony about the events leading up to M. H.’s first hospitalization. The mother testified that on February 17 she went to work for a few hours and then asked Lydia Meijia, who worked in her employer’s personnel office, to help her make a doctor’s appointment for M. H. Meijia testified that she received a call from Gonzalez that M. H. needed medical attention and went to the assembly line to inform the mother, who responded that she could not leave work or she would lose her bonus. Meijia went to Gonzalez’s house and saw M. H. lying on his side, crying, and unable to pay attention or reach for anything. She went back to work and told the mother again that she needed to take M. H. to the doctor. They made an appointment, and the mother took M. H. to the doctor that day. The doctor referred M. H. to the hospital, where he stayed until February 20, 1998.

Although they suspected that Gonzalez had caused M. H.’s prior injuries, on February 23, 1998, the parents again entrusted M. H. to Gonzalez’s care and went to work. They told her not to hit their baby again, and Gonzalez promised to take good care of him. But when the mother picked him up that evening, she noticed that M. H. had a new injury on the front of his head. When asked what had happened, Gonzalez again suggested the baby had a cold.

The mother did not take M. H. to the doctor until late on February 24 because she had a previously scheduled appointment at that time. The doctor sent them to Scottish Rite Children’s Medical Center for further treatment. Dr. Raahed Ramsey, a radiologist with the medical center, testified that M. H. had suffered three fractures to his skull caused by significant blunt trauma to the head. Based on the nature and severity of M. H.’s injuries, the hospital contacted the Department of Family & Children Services (DFACS). On February 25 or 26, DFACS took custody of M. H.

The parents appeared for a detention hearing before the Cobb County Juvenile Court on February 27. The juvenile court ordered that M. H. remain in protective custody pending further investigation of potential physical abuse.

On March 2, the parents were interviewed by the police about M. H.’s injuries. An officer who was not involved in the investigation provided translation services during the interviews. The parents lied about the cause of M. H.’s injuries. They said that on February 16, M. H. had been sitting in his rocker and had hit his head on the kitchen cabinets. They also told the police that M. H. had fallen off the sofa on February 14. They said that the second injury occurred when M. H. was in his walker and hit his head in the kitchen. They also told the police that the mother did not work and stayed home with M. H. during the day.

In a second interview on April 21, the parents told the police that they had lied and that they believed Gonzalez had caused M. H.’s injuries. They testified at trial that they were afraid to tell the truth at first because of the mother’s status as an illegal alien and because they feared retaliation from Gonzalez and the people who lived with her. They testified that they decided to tell the truth during the second interview because they were afraid they would be arrested and put in jail.

The mother was arrested on charges related to M. H.’s injuries and incarcerated. While she was in jail, she gave birth to J. H. DFACS took custody of him only 24 hours after his birth. On June 26, 1998, the Cobb County Juvenile Court conducted a detention hearing. DFACS was awarded temporary custody of J. H. because the mother was incarcerated and the father, who could not be located, was subject to a criminal arrest warrant for child abuse. The court conducted deprivation hearings for M. H. on June 4, 1998, and for J. H. on July 16,1998, determined that the children were deprived, and continued their temporary placement with DFACS.

At the time of the termination hearing, which began on March 2, 1999, both parents were incarcerated pending disposition of charges related to M. H.’s injuries. After hearing evidence on March 2, April 14, and June 16, 1999, including the translated testimony of the parents, the juvenile court terminated their parental rights on June 22, 1999.

The court ordered DFACS to attempt to locate a relative with whom to place the children. At the placement hearing, it was determined that the parents had no relatives in the United States and that they could not provide addresses for or means to contact relatives in any other country.

1. The parents contend that the juvenile court did not have jurisdiction to terminate their parental rights because the children are Mexican citizens. They argue that because the Supremacy Clause of the United States Constitution reserves matters of immigration and citizenship to the federal government, a state juvenile court lacks jurisdiction to terminate the parental rights of children born to citizens of another country.

We agree that the Cobb County Juvenile Court lacks jurisdiction to determine issues of immigration or citizenship, but those issues were not presented to or decided by the court. It is undisputed that by virtue of their birth in Georgia, M. H. and J. H. are United States citizens. When the termination petition was filed, M. H. and J. H. were citizens of Georgia and thereby entitled to the protection of Georgia law, which specifically provides for the termination of parental rights in certain circumstances.

Juvenile courts in Georgia have exclusive original jurisdiction over proceedings involving the termination of the parent-child relationship. The juvenile court therefore had subject matter jurisdiction to determine if appellants should have their parental rights terminated.

To the extent that the parents also challenge personal jurisdiction or venue, those issues were waived because they were not raised in the trial court.

2. The parents contend that there was not clear and convincing evidence of parental misconduct or inability as is required for the termination of parental rights.

The decision to terminate parental rights is a two-step process. First, pursuant to OCGA § 15-11-81 (a), the court determines whether there is clear and convincing evidence of parental misconduct or inability by finding that:

(i) [t]he child is a deprived child, as such term is defined in Code Section 15-11-2; (ii) [t]he lack of proper parental care or control by the parent in question is the cause of the child’s status as deprived; (iii) [s]uch cause of deprivation is likely to continue or will not likely be remedied; and (iv) [t]he continued deprivation will cause or is likely to cause serious physical, mental, emotional, or moral harm to the child.

Second, if the court finds clear and convincing evidence of parental misconduct or inability, the court then considers whether termination of parental rights is in the best interest of the child,, after considering the physical, mental, emotional, and moral condition and needs of the child, including the need for a secure and stable home.

On appeal from a juvenile court order terminating parental rights, we must review the evidence in the light most favorable to the court’s order to determine whether a rational trier of fact could have found clear and convincing evidence that the parental rights had been lost. We do not weigh evidence or determine the credibility of witnesses; rather, we defer to the juvenile court’s factfinding and affirm unless the appellate standard is not met.

Decided July 5, 2000.

Dennis C. O’Brien, for appellant (case no. A00A0452).

Delia M. Greene, Amelia G. Pray, Rhonda M. Breaux, for appel- ' lant (case no. A00A0458).

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 appellees.

In June and July 1998, the juvenile court entered orders finding that the children were deprived and that the lack of proper care by the parents caused the deprivation. Because no appeals were taken from those orders, the parents are bound by the determinations.

Following the termination trial, the juvenile court issued detailed findings of fact and conclusions of law. Based on the facts set forth above and the court’s determination that the father’s testimony was not credible, the court concluded that: the parents were the cause of the children’s deprivation based on their failure to obtain prompt medical attention for M. H. and their failure to protect him from further injury; the deprivation was likely to continue because the parents’ priority was economic survival; and continued deprivation was likely to cause serious physical, mental, emotional, or moral harm to the children. The court also concluded that termination of appellants’ parental rights would be in the best interests of the children. Although not set forth in the juvenile court’s written order, the judge stated after trial that she was concerned about the uncertainty of the outcome of the criminal charges against the parents and that she could not leave these young children in a similar state of uncertainty as to where they would live.

Viewed in the light most favorable to the juvenile court’s order, we find the evidence was sufficient to support the juvenile court’s conclusions. The order of termination is therefore affirmed.

Judgment affirmed.

Johnson, C. J., and Mikell, J., concur.

       Because the facts and issues are the same, we consider the appeals together in this opinion.

       Ga. Const. of 1983, Art. I, Sec. I, Par. VII.

       OCGA § 15-11-81.

       OCGA § 15-11-5 (a) (2) (C).

        In the Interest of S. K. L., 199 Ga. App. 731, 734 (2) (b) (405 SE2d 903) (1991).

       OCGA § 15-11-81 (b) (4) (A).

       OCGA § 15-11-81 (a).

        In the Interest of N. J. W., 233 Ga. App. 130 (503 SE2d 366) (1998).

       Id.

        In the Interest of J. M. D., 221 Ga. App. 556, 558 (472 SE2d 123) (1996).