text:
    A99A0388.
    INSTRUMENT REPAIR SERVICE, INC. v. GUNBY et al.
    (518 SE2d 161)
   McMurray, Presiding Judge.

Plaintiff Instrument Repair Service, Inc. (“IRSI”) brought this action against two former employees, defendants William Todd Gunby and Jesus Ralph Cruz, as well as their newly formed corporation, defendant Quantex Industries, Inc. (“Quantex”), alleging a conspiracy to breach defendants’ duty of loyalty and good faith owed to plaintiff. The complaint prayed for an injunction restraining defendants from “misappropriating [plaintiff’s] business opportunities . . .,” damages for wrongful conduct and “unjust enrichment... by reason of [defendants’] receipt of income and profits . . .” properly belonging to IRSI, punitive damages, and the expenses of litigation for unnecessary trouble and expense, and defendants’ stubborn litigiousness. Defendants’joint answer admitted that defendants “Gunby and Cruz were employees of [IRSI],” but denied all the material allegations. After discovery, defendants moved for summary judgment, arguing that their preparation for starting a competing business was not itself a breach of any fiduciary duty, and the evidence shows no tortious interference with plaintiff’s existing contractual relations. Viewed in the light most favorable to plaintiff as the non-movant, the essentially undisputed evidence reveals the following material chronology:

IRSI was founded by James Smith in 1975, in business to repair and calibrate electronic test equipment and to provide on-site testing and equipment calibration services. IRSI began testing and servicing equipment for BellSouth Telecommunications, Inc. (“BellSouth”) in 1984 and had a current nonexclusive contract to provide on-site services through April 1999. The BellSouth contract described IRSI as an independent contractor and provided:

Nonexclusive Rights. It is expressly understood . . . that this Agreement does not grant Seller [IRSI] an exclusive privilege to sell to Buyer [BellSouth] any or all material, Services and/or software that Buyer may require. Buyer reserves the right to contract with other . . . suppliers for the procurement of comparable . . . services.

A similar provision is in the service contract IRSI has with Bell Atlantic through June 2000. Despite this nonexclusive relationship, there were in fact no other approved vendors of on-site calibration services for BellSouth central offices at the time Gunby and Cruz left IRSI. For fiscal year 1996, the approximate gross revenues IRSI received from its on-site calibration contract with BellSouth was $346,000, whereas for fiscal year 1997, revenue dropped to $219,500.

Defendant Gunby was hired by IRSI in 1988 as a technician, at which time, he signed a non-disclosure agreement not to reveal technical information acquired during his employment with IRSI. Over time, Gunby’s responsibilities increased and in December 1995, the IRSI Board of Directors elected Gunby to the position of Vice President of Southeast Operations and On-Site Calibrations. Defendant Cruz was hired by IRSI in 1995 as the director of planning, at a starting salary of $50,000. Cruz considered himself part of IRSI’s management. His principal responsibility was to market the company for sale and to try and locate interested buyers. Additionally, Cruz was to develop a business plan for the future growth of IRSI.

In May 1996, IRSI president, James Smith, was diagnosed with terminal liver cancer. By early October 1996, defendants Gunby and Cruz discussed going into business for themselves, and on November 20, 1996, defendant Quantex was incorporated. On December 5, 1996, James Smith died. During December, defendants arranged to lease an office for Quantex, beginning in January 1997. Defendant Cruz resigned from IRSI on December 30, 1996. Defendant Gunby continued to work at IRSI while taking steps to obtain a tax identification number and business license for Quantex. On January 16, 1997, Gunby signed a new employment agreement with IRSI but because “[rjepairs as a total [had] declined,” Britt Myers, the new president of IRSI, concluded that “Gunby had slowed his work for IRSI considerably . . .” and so Gunby was fired from IRSI on January 23, 1997. At no time did either defendant inform Britt Myers of their plans to start a competing business. Defendants actively solicited business for Quantex from Bell Atlantic and BellSouth in February 1997 but did not contact BellSouth or Bell Atlantic on behalf of Quantex before each had resigned from IRSI.

BellSouth subsequently “contracted GTE Electronic Repair Services (GTE-ERS) [(“GTE”)] as the primary supplier of central office and outside plant (OSP) test set calibration services.” GTE selected Quantex for on-site work for BellSouth in Louisiana and Alabama. Three former IRSI employees subsequently joined Quantex, although they had never performed data equipment repairs for IRSI. Quantex does not perform test equipment services directly for BellSouth or Bell Atlantic; rather, these services are performed on behalf of these Bell entities through GTE. Regarding allegedly misappropriated corporate opportunities, the undisputed evidence is that James Smith did not want to form any alliance with GTE because he considered GTE to be a competitor. Regarding data equipment services, defendant Gunby informed James Smith of the possibility that IRSI could obtain new business servicing data equipment for Ed Hill and his corporation, STMC, but that James Smith declined to pursue this opportunity. Defendants decided this was a good opportunity and if James Smith would not take advantage of it, they would.

The trial court granted defendants’ motion, and plaintiff appeals. Held:

1. We consider first the grant of summary judgment in favor of defendant Cruz.

An employee breaches no fiduciary duty to the employer simply by making plans to enter a competing business while he is still employed. Even before the termination of his agency, he is entitled to make arrangements to compete and upon termination of employment immediately compete. He is not, however, entitled to solicit customers for a rival business before the end of his employment nor can he properly do other similar acts in direct competition with the employer’s business.

(Citations and punctuation omitted.) Nilan’s Alley v. Ginsburg, 208 Ga. App. 145 (1) (430 SE2d 368).

The principles of agency, while pertinent to the time period when [Cruz] was still in [IRSI’s] employ, will not sustain the grant of an injunction prohibiting competition after the agency relationship is terminated. If the rule were otherwise, no former agent could compete against a former principal.

Pope v. Kem Mfg. Corp., 249 Ga. 868, 869 (1) (295 SE2d 290).

Defendant Cruz was given a title but was not a director or an elected corporate officer of IRSI. Nevertheless, as IRSI’s agent to solicit and receive offers to purchase IRSI, we assume, for purposes of this appeal, that Cruz owed IRSI fiduciary obligations during the existence of the agency. Nilan’s Alley v. Ginsburg, 208 Ga. App. 145 (1), supra. It is undisputed he did not personally solicit IRSI customers for Quantex during the existence of his agency with IRSI, and it is further undisputed that no one at Quantex began soliciting Bell-South or Bell Atlantic until after both defendants Cruz and Gunby had ended their relationship with IRSI. Consequently, either as an individual employee (and not an officer or director), or as an alleged co-conspirator, defendant Cruz did not breach his fiduciary duty to IRSI during the existence of his agency. The trial court correctly granted summary judgment to defendant Cruz.

2. Defendant Gunby was, until his termination on January 23, 1997, an elected officer of IRSI. There is no contention that he breached any enforceable covenant not to compete. We assume that Gunby owed IRSI a duty of loyalty and good faith during his employment and further assume that IRSI had a protected business opportunity in its ongoing contractual relationships with BellSouth and Bell Atlantic. See Southeast Consultants v. McCrary Engineering Corp., 246 Ga. 503 (273 SE2d 112).

Decided May 18, 1999.

“Once it has been established that a corporate opportunity has been presented to an officer, he must prove that he did not violate his fiduciary duties of loyalty, good faith, and fair dealing toward the corporation.” Phoenix Airline Svcs. v. Metro Airlines, 260 Ga. 584, 587 (2) (397 SE2d 699).

The undisputed evidence is that James Smith was informed by Gunby of the new procedures for obtaining additional work for Bell-South and Bell Atlantic through GTE, but James Smith expressly declined that opportunity, and he also eschewed the possibility of working for STMC. IRSI generated more than $200,000 in fiscal 1997 from services performed for BellSouth under the ongoing contractual relationship. The new corporation Quantex had to be selected by GTE before it could perform any services in direct competition with IRSI, and this did not happen until after each defendant terminated his relationship with IRSI. Consequently, the evidence is undisputed that defendants Gunby and Cruz did not unlawfully profit at the expense of IRSI during any agency relationship. Nilan’s Alley v. Ginsburg, 208 Ga. App. 145 (1), supra. The circumstance that, after defendants left IRSI, GTE awarded Quantex some work that might previously have been awarded to IRSI is not sufficient to sustain a finding that defendants previously breached the duties of good faith and loyalty they had owed to IRSI before they left. The trial court correctly granted summary judgment in favor of defendant Gunby as to IRSI’s claim for breach of fiduciary duty. Id. at 146 (1).

3. Conspiracy itself furnishes no cause of action; rather, the gist of the action is the tort committed thereby and the resulting damage. Cook v. Robinson, 216 Ga. 328 (1), 329 (116 SE2d 742); Safety-Kleen Corp. v. Smith, 203 Ga. App. 514 (3) (417 SE2d 171). The evidence fails to show any unlawful means were used in setting up the defendants’ lawfully competing business. Accordingly, there is no jury question here as to defendants’ non-liability for the alleged conspiracy.

4. The absence of liability for compensatory damages precludes an award of OCGA § 13-6-11 attorney fees or other expenses of litigation. The trial court correctly granted summary judgment as to that claim. Russell Corp. v. BancBoston Financial Co., 209 Ga. App. 660, 663 (6) (434 SE2d 716).

Judgment affirmed.

Andrews and Ruffin, JJ., concur.

Smith, Gambrell & Russell, Thomas W. Rhodes, Melanie S. Stone, for appellant.

Lokey & Smith, Malcolm Smith, Kevin A. Doyle, for appellees.


source: Caselaw Access Project

author: Smith, Judge.

license: Public Domain

text:
    A99A0394.
    REARDIGAN v. SHAW INDUSTRIES, INC.
    (518 SE2d 144)
   Smith, Judge.

This appeal involves the construction of a non-competition and non-solicitation agreement executed by appellant Pat Reardigan, a former employee of appellee Shaw Industries. Because the agreement was sufficiently limited in duration, territorial coverage, and scope of activity, the trial court correctly granted injunctive relief, and we affirm.

In 1990, Reardigan was hired by Bell-Mann, Inc., now merged with Shaw. Bell-Mann and Shaw sell carpet and other floor coverings in the Atlanta area. Reardigan dealt primarily with developers and contractors on construction projects in the Atlanta metropolitan area and the Southeast, submitting bids for supplying carpet and floor covering to the projects. In 1992, Reardigan executed an employment contract with Bell-Mann containing two agreements relevant here. The clause headed “Noncompetition” provides in relevant part:

You covenant and agree that during your employment with Bell-Mann and for a period ending on December 31st of the calendar year following the calendar year in which your employment terminates, you will not, on your own behalf or in the service or on behalf of others, compete with Bell-Mann anywhere within the Atlanta Metropolitan Statistical Area, as said term is defined by the United States Office of Management and Budget (the “Territory”), by engaging or attempting to engage in the business of buying, selling and installing carpet and other floor coverings for residential or commercial uses, in circumstances where your responsibilities and duties are substantially similar to those performed by you for Bell-Mann.

At the time of execution of the contract, the Atlanta Metropolitan Statistical Area (“MSA”) contained eighteen counties; it has since been revised to include two more.

The contract also contains a clause headed, “Non-solicitation of Customers,” providing:

You covenant and agree that during your employment with Bell-Mann and for a period ending on December 31st of the calendar year following the calendar year in which your employment terminates, you will not, anywhere within the Territory, on your own behalf or in the service or on behalf of others, call on, solicit or take away as a client or customer or attempt to call on, solicit or take away as a client or customer any individual, partnership, corporation or association that was a client or customer of Bell-Mann and was serviced by you or under your supervision during your employment with Bell-Mann.

On June 26, 1998, Reardigan resigned from Shaw. He later took a position with Floors With Dimensions, Inc., a direct competitor of Shaw. This litigation followed.

1. In determining the legality of a restrictive covenant, a court may consider the nature and extent of the business, the situation of the parties, and all other relevant circumstances. W. R. Grace & Co. v. Mouyal, 262 Ga. 464, 465 (1) (422 SE2d 529) (1992). “Whether the restraints imposed by an employment contract are reasonable is a question of law for determination by the court. However, facts are sometimes necessary to determine whether a questionable restriction, though not void on its face is, in fact, reasonable.” (Citations and punctuation omitted.) Rollins Protective Svcs. Co. v. Palermo, 249 Ga. 138, 139 (1) (287 SE2d 546) (1982). To determine the reasonableness of the restrictions as applied to the facts presented, the courts have established a three-element test of duration, territorial coverage, and scope of prohibited activity. Sysco Food Svcs. &c. v. Chupp, 225 Ga. App. 584, 585 (1) (484 SE2d 323) (1997).

(a) In a footnote and citing no authority, Reardigan claims that the restriction is unreasonable with respect to duration because its length varies depending on the date of termination of employment. But the restriction ends at a date certain: December 31 of the calendar year after the calendar year when the employment terminates, and it “is definite and not limitless. [Cit.]” Smith v. HBT, Inc., 213 Ga. App. 560, 563 (4) (445 SE2d 315) (1994). While the actual length of the restriction imposed by this contract is somewhat variable depending upon the date of termination or resignation, the maximum possible length, two years, is within that held permissible under Georgia law. U3S Corp. &c. v. Parker, 202 Ga. App. 374, 378 (2) (b) (414 SE2d 513) (1991) (two years); see also Smith, supra (five years). The ending date of the restriction is ascertainable with certainty immediately upon the employee’s termination or resignation, and it is therefore no more indeterminate than a restriction of a certain number of months or years. The end of such a restriction also becomes ascertainable only when the date of termination is established. The contract is not unreasonable with respect to duration.

(b) Reardigan also asserts that the territorial coverage in the contract is overbroad. We disagree. The 18 counties enumerated in the Atlanta MSA, with the exception of a small portion of Coweta County, lie well within a 50-mile radius of Shaw’s business. This court has considered the radius within which certain enumerated counties lie as relevant to the reasonableness of a territorial limitation. Pittman v. Harbin Clinic Professional Assn., 210 Ga. App. 767, 769 (1) (437 SE2d 619) (1993). And territorial limits of a 50-mile radius of the employer’s business have been held to be reasonable in Georgia. See, e.g., Smith, supra at 563 (3); Annis v. Tomberlin & Shelnutt Assocs., 195 Ga. App. 27, 31 (2) (392 SE2d 717) (1990); McMurray v. Bateman, 221 Ga. 240, 255 (4) (144 SE2d 345) (1965).

Shaw’s computer records showed successful bids by Reardigan in eight of the eighteen counties in the Atlanta MSA as it existed at the time of the contract, as well as in Alabama, Tennessee, and Florida. Evidence also was presented that Reardigan solicited business on projects in most or all of the Atlanta metropolitan area. In contrast to the regional salesperson assigned to call on customers in a particular territory, Reardigan relied upon his relationships with contractors and developers to obtain subcontracts for the installation of carpet. Reardigan acknowledged that he often did not know the counties in which these contractors’ work was performed and that he bid as many as 30 jobs in a week. Uncontradicted evidence was presented that these contractors and developers performed work throughout the Atlanta metropolitan area and the Southeast.

In construing territorial restrictions in an employment contract, the trial court must examine the reasonableness of the restriction in view of all the facts and circumstances surrounding the case. Restrictions related to the territory in which the employee was employed, as opposed to the territory in which the employer does business, generally will be enforced, because “a court will accept as prima facie valid a covenant related to the territory where the employee was employed as a legitimate protection of the employer’s investment in customer relations and good will.” (Punctuation omitted.) Rollins Protective, supra at 139-140.

Because of the nature of Reardigan’s work, the trial court could reasonably conclude that his employment territory included not only the corporate offices of the general contractors through which he solicited business, but also the location of the actual projects on which he submitted bids. The evidence also showed that the described territory was considerably smaller than the four-state area in which Reardigan actually solicited and won bids. We cannot say that, under the facts presented, the trial court erred in concluding that Reardigan was employed in most or all of the 18-county area described in the contract.

(c) Reardigan also contends that the territorial restriction is impermissibly vague because the definition of the Atlanta MSA has changed since his contract was executed. But the definiteness of a territorial restriction is evaluated as of the time of execution of the contract. “[A] territorial restriction which cannot be determined until the date of the employee’s termination is too indefinite to be enforced.” Koger Properties v. Adams-Cates Co., 247 Ga. 68 (274 SE2d 329) (1981). While Reardigan relies on Roger, it is factually inapposite here because the restrictive covenant in Roger defined the territory only as “ Various metropolitan areas in the United States where the employer is engaged as herein described in the conduct of said employer’s business at the time of such termination.’ ” (Emphasis omitted.) Id. It defined neither the particular metropolitan area nor those places in which the employer might be doing business at the future and indeterminate time of the employee’s termination. Here, in contrast, the extent of “the Atlanta Metropolitan Statistical Area, as said term is defined by the United States Office of Management and Budget” was easily ascertainable at the time the contract was executed. (Emphasis supplied.)

“The law does not require exact precision; it forbids unreasonably broad territorial coverage.” Sysco, supra at 586.

Adopting the principle urged ... would create the inconsistent result of voiding a non-competition covenant for over-breadth if it does not include a territorial limitation, but also voiding it for overbreadth if it does include a limitation that is not correct to the letter.

(Emphasis omitted.) Id. at 587 (1). The definition of the relevant territory contained in the contract was reasonable and easily ascertainable at the time Reardigan executed the contract, even though the Office of Management & Budget later redefined the Atlanta MSA.

(d) Reardigan also asserts that the contract is more restrictive than necessary to protect Shaw. He contends that it forbids him to sell carpet for residential uses although his “main focus was commercial,” that it unduly restricts the products he is permitted to sell, and that it prohibits him from “installing” carpet, which he contends he never undertook for Shaw. But the contract adds that Reardigan is forbidden to compete with Shaw only “in circumstances where [his] responsibilities and duties are substantially similar to those performed by [him]” for Shaw. Such a provision is “narrowly tailored in the scope of activities prohibited” and is permissible. Wright v. Power Indus. Consultants, 234 Ga. App. 833, 835 (2) (508 SE2d 191) (1998). Such narrow tailorings “protect the employer to a sufficient degree while not imposing unreasonable restrictions on the employee.” Id.

Decided May 18, 1999.

Ford & Harrison, John L. Monroe, Jr., Jeffrey D. Mokotoff, for appellant.

Perrie, Buker, Jones & Morton, J. William Haley, Drew, Eckl & Farnham, Gregory G. Schultz, for appellee.

It follows that the trial court also did not err in entering an order describing the scope of activities prohibited by the non-competition agreement. The order was simply a necessary determination of the “responsibilities and duties . . . substantially similar to those performed by” Reardigan for Shaw as required by the agreement. The trial court incorporated evidence and testimony adduced at the hearing with regard to the scope of Reardigan’s duties at Shaw to make this factual determination, and we find no error.

2. Reardigan’s sole contention with regard to the non-solicitation agreement is that it fails because the non-competition agreement is invalid. Since we have held that the trial court did not err in upholding the non-competition agreement, this argument is without merit.

Judgment affirmed.

Pope, P. J., and Eldridge, J., concur.

       The Supreme Court has jurisdiction of equity cases, but when injunctive relief is granted or denied based upon the construction of a non-competition agreement, the Supreme Court has held that the case is not an equity case and is within this court’s appellate jurisdiction. Pittman v. Harbin Clinic Professional Assn., 263 Ga. 66 (428 SE2d 328) (1993).

       Reardigan acknowledged that he was not prevented from ascertaining the extent of the Atlanta MSA before or after he signed the contract.

       But Shaw presented evidence, and Reardigan acknowledged, that he did make residential sales.


text:
    A99A0496.
    TEMPLE v. THE STATE.
    (517 SE2d 850)
   Smith, Judge.

After an attack on his wife and 11-year-old stepdaughter, William Scott Temple was indicted by a Polk County grand jury on charges of rape, aggravated sexual battery, four counts of aggravated assault, two counts of aggravated battery, two counts of false imprisonment, two counts of possession of a firearm during commission of a felony, cruelty to children, terroristic threats, and possession of a firearm by a convicted felon. A jury convicted Temple of aggravated sexual battery, four counts of aggravated assault, two counts of aggravated battery, cruelty to children, terroristic threats, and the firearms charges and acquitted him of rape and false imprisonment. His motion for new trial was denied, and he appeals. Finding no error, we affirm.

1. Temple asserts that the State failed to prove guilt beyond a reasonable doubt because tests performed by the State Crime Lab failed to reveal gunpowder residue on his hands. But after the jury’s verdict of guilty, Temple can no longer rely upon the presumption of innocence, and this court cannot weigh evidence or judge the witnesses’ credibility. We must construe the evidence to uphold the verdict and determine only whether the evidence was sufficient to enable any rational trier of fact to find Temple guilty of the crimes charged beyond a reasonable doubt. Clark v. State, 197 Ga. App. 318, 320 (1) (398 SE2d 377) (1990).

The results of the gunshot residue analysis were inconclusive and did not eliminate the possibility that Temple had fired a weapon. Temple’s wife and stepdaughter positively testified at trial that Temple broke into their house by kicking down the door, choked and slapped his wife, beat her in the head with a gun, forced her to disrobe, held the gun to her head, sexually assaulted her with the gun, and beat her again until she lost consciousness. Both Temple’s wife and stepdaughter also testified that Temple shot his stepdaughter in the head, wounding her, and then held the gun to her head. The evidence presented here was sufficient under Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Temple’s argument that the evidence at trial was “sufficiently close to warrant” a new trial is without merit. Smith v. State, 265 Ga. 495, 496 (5) (458 SE2d 347) (1995).

2. Temple contends the trial court erred in permitting similar transaction evidence. But the evidence submitted by the State showed not similar transactions but prior difficulties between Temple and his wife. “[Ujnlike similar transactions, prior difficulties between the parties are not independent acts or occurrences, but are connected acts or occurrences arising from the relationship between the same people involved in the prosecution and are related and connected by such nexus. [Cits.]” McTaggart v. State, 225 Ga. App. 359, 366 (2) (483 SE2d 898) (1997), overruled on other grounds, Wall v. State, 269 Ga. 506 (500 SE2d 904) (1998). The State provided notice as to four incidents and presented evidence of three occasions on which Temple battered, kidnapped, assaulted, or raped his wife within seven months of the attack at issue here.

Temple cites no authority for his assertion that evidence of one incident, to which his wife was the only witness, should not have been admitted because her testimony was not corroborated. “The testimony of a single witness is generally sufficient to establish a fact.” (Citation and punctuation omitted.) Howard v. State, 228 Ga. App. 784, 786 (3) (492 SE2d 759) (1997) (testimony of single witness sufficient to establish evidence of similar transaction). The evidence showed the month and year of each incident and, in two cases, the approximate day. The State was not required to show the precise date of each incident for the evidence to be admitted. Johnson v. State, 229 Ga. App. 586, 589 (6) (a) (494 SE2d 382) (1997); Tidwell v. State, 219 Ga. App. 233, 236 (2) (c) (464 SE2d 834) (1995).

3. Finally, Temple asserts that the trial court erred in refusing to give several jury instructions regarding lesser included offenses of assault, battery with visible bodily harm, pointing a pistol, and sexual battery. But Temple did not submit his requests to charge on these issues until immediately before closing arguments. The trial court refused to consider the requests because they were not submitted in a timely fashion.

Uniform Superior Court Rule 10.3 provides: “All requests to charge shall be . . . submitted to the court ... at the commencement of trial, unless otherwise provided by pre-trial order; provided, however, that additional requests may be submitted to cover unanticipated points which arise thereafter.” Temple elected to proceed under the criminal discovery provisions of OCGA § 17-16-1 et seq., and he does not contend that the State failed to provide him with the materials covered by those provisions. The issues addressed in Temple’s requests to charge were not unanticipated. Smith v. State, 222 Ga. App. 366, 370-371 (5) (474 SE2d 272) (1996). This is supported by the comment made by Temple’s counsel during the charge conference that he originally intended to rely on an assertion of self-defense and therefore “was waiting to see how we went on that, and I held off on” the late-submitted charges. Cross v. State, 150 Ga. App. 206, 208 (3) (257 SE2d 330) (1979), relied upon by Temple, predates the adoption of the Uniform Superior Court Rules. See Uniform Superior Court Rule 1. Refusal to give the requested charges was not error.

Judgment affirmed.

Pope, P. J., and Eldridge, J., concur.

Decided May 18, 1999.

James A. Astin, for appellant.

James R. Osborne, District Attorney, Laura L. Herrin, Assistant District Attorney, for appellee.

       Temple’s trial began on June 1,1998, the same day that the Supreme Court of Georgia decided that Uniform Superior Court Rules 31.1 and 31.3 would no longer apply to instances of prior difficulties between the defendant and the victim. Wall v. State, supra at 509 (2).


author: McMurray, Presiding Judge.

text:
    A99A0726.
    MACK v. NATIONWIDE MUTUAL FIRE INSURANCE COMPANY.
    (517 SE2d 839)
   McMurray, Presiding Judge.

Plaintiff Nationwide Mutual Fire Insurance Company filed this declaratory judgment action seeking a ruling that it is not obligated to provide indemnification and a defense under a business owner’s policy issued to defendant Mercury Appliance & Electronics, Inc. d/b/a Dean Forrest World Appliance & Electronics (hereafter “Mercury”). Rhonda Fordham Mack filed a class action against Mercury and other corporate and individual defendants. As amended, her complaint alleges that she, and other members of the plaintiff class, had entered into retail installment contracts to finance purchases from Mercury, and that the interest charged and collected was at a rate in excess of the legal maximum in violation of the Retail Installment & Home Solicitation Act, OCGA § 10-1-1 et seq. Mack seeks to “be reimbursed for all finance charges on all financing agreements which contain excessive and illegal finance charges.” Plaintiff has denied coverage for the circumstances complained of by Mack in her civil action against Mercury, but has provided Mercury with a defense subject to a reservation of rights. On behalf of herself and the plaintiff class, Mack appeals the grant of summary judgment in favor of plaintiff. Held:

We affirm, but our analysis varies somewhat from the superior court’s analysis stated below. The insurance policy provides business liability coverage for “sums that the insured becomes legally obligated to pay as damages because of‘bodily injury,’ ‘property damage,’ ‘personal injury’ or ‘advertising injury’ to which this insurance applies.” We are concerned here only with that definition of “property damage” as “Moss of use of tangible property that is not physically injured.”

The superior court analysis is based on a prudent and conservative assumption that the loss described in Mack’s complaint may be “tangible property” under the policy. Based on this assumption, the superior court first concludes that the loss alleged by Mack is “property damage” as defined by the policy but concludes that coverage is precluded due to the “business risk” exclusion.

In our view, it is desirable to resolve the issue as to whether Mack’s claim for loss of use of money relates to “tangible property” under the policy, and we conclude that it does not. Money is one of the great inventions of civilization without which life, as we know it, could not continue. It exists, however, solely within our minds and thus cannot be touched, weighed, or seen. Therefore, it is not tangible, but is intangible. Most money exists only as a number recorded on a computer, the total of coins and notes in circulation represents but a small fraction of the money owned by governments, individuals, corporations, and others. The coins and notes which represent money are of little intrinsic value compared to the wealth they represent, yet we continue to accept them because of the confidence we repose in our government and society.

Money can be confused with tangible property only when there is a matter relating to specific coins or notes. Then we are concerned with a physical object which represents money, but the material object and cognitive concept of money may still be viewed separately. Some confusion arises, as demonstrated in Faircloth v. A. L. Williams & Assoc., 206 Ga. App. 764, 766-768 (1) (426 SE2d 601), from the evolution of common law ideas in the face of modern electronic commerce. Original common law related actions for trover for conversion only to tangible things so that an action for conversion would lie only for withholding specific bills or coins and does not lie on account of a mere failure to pay money under a contract. Id. at 766-767. The Fair-cloth decision applies the long-standing common law rule, but states a suggestion that money “might” be considered to be tangible property under certain circumstances in language which is clearly dicta since it is contained in a digression with regard to a hypothetical allegation which was not actually raised in the case. In the case sub judice, the superior court cited Faircloth in connection with its assumption that money was tangible property, but reliance upon that case was unnecessary, not only because of the dicta, but also because of the general rule that undefined words used in an insurance policy must be given their usual, ordinary and common meaning. Arkin v. Fireman’s Fund Ins. Co., 228 Ga. App. 564, 566 (492 SE2d 314).

While Mack argues that there is substantial Georgia authority stating that money is tangible property, we do not agree. After closely examining the authority cited by Mack, we find nothing which may not be reconciled with our decision. At the same time, we acknowledge the absence of clear supporting authority perhaps because many controversies have been avoided by the classification of money as intangible personal property for tax purposes. See Art. VII, Sec. I, Par. Ill (b) (1) of the Georgia Constitution of 1983; OCGA § 48-1-2 (13).

Decided May 18, 1999.

Middleton, Adams & Tate, Richard H. Middleton, Jr., Peter C. Adams, Mark A. Tate, Heather K. Karrh, Timothy R. Walmsley, Leslie S. Pickett, for appellant.

Savage, Herndon & Turner, Thomas R. Herndon, Robert S. Kraeuter, for appellee.

Nonetheless, rather than avoiding this important issue, we apply the common meaning of the words involved to hold that money is not tangible property. The claims at issue in this case do not involve any specific coin or notes, and we do not intend that this decision affect those cases finding that specific metal or paper which represents money is tangible property. The distinction between a tangible item and monetary value is well set out in Vaughn v. Wright, 139 Ga. 736 (78 SE 123).

This brings us to the conclusion that Mack’s claim is not for “property damage” as defined in the insurance policy. We do not consider Mack’s argument with regard to the loss of use of merchandise wrongfully repossessed since it is beyond the scope of the relief sought in her amended complaint. Also, we deny Mack’s request to supplement the appellate record with an amendment to her complaint in the underlying action against Mercury, filed after the ruling of the superior court being appealed and after the filing of the notice of appeal initiating this appeal. There is no alternative theory under which coverage might be afforded under the insurance policy issued by plaintiff to Mercury; therefore, the superior court correctly granted plaintiff’s motion for summary judgment.

Judgment affirmed.

Andrews and Ruffin, JJ, concur.


text:
    A99A1804.
    DOBBS v. ATKINSON.
    (517 SE2d 597)
   McMurray, Presiding Judge.

Plaintiff-appellee Janice Atkinson commenced this dispossessory action against defendant-appellant Teretha Dobbs, alleging that defendant is a tenant who “fails to pay rent now due. . . .” Defendant answered and alleged a partial failure of consideration. The case was set for a hearing on December 14,1998, before the State Court of DeKalb County, which purportedly rendered judgment for plaintiff by granting the writ of possession and awarding back rent in the amount of $850. In response to defendant’s demand for findings of fact and conclusions of law (contained in defendant’s notice of appeal) filed December 21, 1998, the state court entered a subsequent order on January 25, 1999, indicating that, at the trial of the case, defendant “chose to relinquish [certain] claim [s] and requested transfer of [the] case to State Court, jury division.” Held:

Decided May 18, 1999.

Teretha Dobbs, pro se.

Janice A. Atkinson, pro se.

Under OCGA § 5-6-35 (a) (3), the aggrieved party must comply with the discretionary appeal procedures in order to review a judgment rendered in a dispossessory action where the only issue is the amount of back rent due, and the amount awarded is less than $2,500. Here, the amount of rent initially awarded is only $850, and were we to consider the December 14, 1998, ruling of the state court to be a final disposition, we would be obliged to dismiss this attempted direct appeal based on the absence of the jurisdictional amount.

Ordinarily, the filing of a notice of appeal acts as supersedeas but only “upon payment of all costs in the trial court by the appellant,” OCGA § 5-6-46 (a), or the filing of an affidavit of indigence. See Saylors v. Emory Univ., 187 Ga. App. 460, 461 (1) (370 SE2d 625). Here, there is no indication that defendant paid all costs in the trial court. Moreover, defendant’s ambiguous notice of appeal also contains an express request for findings of fact and conclusions of law from the state court. The order of January 25, 1999, indicates that the December 14, 1998 order was in fact an interlocutory ruling ordering defendant to pay rent into the registry of the court pending the transfer of the case for a jury trial. Applying the presumption of regularity accorded to the processes of the trial court in the absence of a transcript, we can conclude only that defendant waived her insistence on any supersedeas (thereby permitting the state court to vacate its earlier ruling granting the writ of possession) and that she accepted the state court’s transfer of her case to the jury division for the initial determination of the merits of the petition and defendant’s counterclaims. Consequently, with the understanding that defendant permitted the vacation of the December 14,1998 order in conjunction with transfer of the entire case for jury trial, we conclude the judgment appealed from is not a final judgment within the meaning of OCGA § 5-6-34 (a).(l) and must be dismissed for failure to comply with OCGA § 5-6-34 (b), the procedures for interlocutory appeal.

Appeal dismissed.

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


author: Andrews, Judge.

text:
    A99A0097.
    BRYANT v. KENERLY.
    (518 SE2d 172)
   Andrews, Judge.

Daniel B. Kenerly obtained a judgment against William T. Bryant in a suit to collect amounts due on promissory notes executed by Bryant. In Kenerly v. Bryant, 227 Ga. App. 746 (490 SE2d 454) (1997), we affirmed the judgment in favor of Kenerly as to the principal amounts due on nine notes, but reversed the portion of the judgment limiting the amount of interest due on the notes. On remand, the trial court recalculated the interest due on the nine notes. Bryant appeals from the trial court’s judgment as to the interest due on seven of the nine notes.

At issue is whether the trial court properly calculated the amount of interest payable on unpaid interest in accordance with OCGA § 7-4-15, which provides as follows:

All liquidated demands, where by agreement or otherwise the sum to be paid is fixed or certain, bear interest from the time the party shall become liable and bound to pay them; if payable on demand, they shall bear interest from the time of the demand. In case of promissory notes payable on demand, the law presumes a demand instantly and gives interest from date.

Under this Code section, where a promissory note calls for payment of the principal at a fixed time, and for payment of interest on the principal at fixed times during the term of the note, the failure to pay the interest when due renders the past due interest a liquidated demand which would itself bear interest prior to judgment. Calhoun v. Marshall, 61 Ga. 275 (1878); Union Sav. Bank &c. Co. v. Dottenheim, 107 Ga. 606, 614 (34 SE 217) (1899); Consulting Constr. Corp. v. Edwards, 207 Ga. App. 296, 299 (427 SE2d 789) (1993). The rate of pre-judgment interest payable on the past due interest is determined by the note if it provides for the interest to be charged on past due interest, but if no such provision is made, then the applicable statutory rate of interest would control. Wofford v. Wyly, 72 Ga. 863, 870 (1884); Merck v. American Freehold Land Mtg. Co. &c., 79 Ga. 213-214, 233 (7 SE 265) (1887); see OCGA §§ 7-4-2 (a); 7-4-16. The award of interest on past due interest under OCGA § 7-4-15 is, however, subject to the limitation that, in the absence of a contrary agreement, no such interest on interest may be awarded where the interest installments mature after the principal itself has fallen due. Byrd v. Prudential Ins. Co., 185 Ga. 625, 627 (196 SE 72) (1938); Wofford, 72 Ga. at 870-871; Ashford v. Traylor, 43 Ga. App. 507 (159 SE 777) (1931).

Bryant does not contest the trial court’s calculation of interest on the two unpaid notes dated February 28, 1973, both in the principal sum of $26,000 (plaintiff’s Exhibits 11 and 12). As to the remaining seven unpaid notes, the following applies with respect to interest due under OCGA § 7-4-15:

Plaintiff’s Exhibit 2 was a note dated February 28, 1969, in the principal sum of $2,746.25 payable in a single payment on a due date five years after the date of the note. The note provided for payment of interest on the principal after the date of the note at the rate of six percent per annum until paid. Under the terms of this note, prejudgment interest accrued on the unpaid principal at the rate of six percent per year from the date of the note until judgment. Under OCGA § 7-4-15, the unpaid interest on the principal which accrued each year during the five-year term of the note bore pre-judgment interest at the statutory rate of seven percent per year set forth in OCGA § 7-4-2 (a). However, as to interest on the unpaid principal which matured after the due date for payment of the principal, no interest on such interest was chargeable under OCGA § 7-4-15.

Plaintiff’s Exhibit 3 was a note dated February 28, 1969, in the principal sum of $8,829.95 payable in a single payment on a due date ten years after the date of the note. The note provided for payment of interest on the principal after the date of the note at the rate of six percent per annum until paid. Under the terms of this note, prejudgment interest accrued on the unpaid principal at the rate of six percent per year from the date of the note until judgment. Under OCGA § 7-4-15, the unpaid interest on the principal which accrued each year during the ten-year term of the note bore pre-judgment interest at the statutory rate of seven percent per year set forth in OCGA § 7-4-2 (a). However, as to interest on the unpaid principal which matured after the due date for payment of the principal, no interest on such interest was chargeable under OCGA § 7-4-15.

Plaintiff’s Exhibit 4 was a note dated January 15, 1970, in the principal sum of $2,131.15 payable in a single payment on a due date 15 years after the date of the note. The note provided for payment of interest on the principal after the due date at the rate of seven percent per annum until paid. Under the terms of this note, prejudgment interest accrued on the unpaid principal at the rate of seven percent per year after the due date until judgment. Because all of the yearly interest on the principal matured after the principal became payable at the due date, no pre-judgment interest on such interest was chargeable under OCGA § 7-4-15.

Plaintiff’s Exhibit 5 was a note dated February 3, 1971, in the principal sum of $7,263 payable in five annual installments plus accrued interest beginning on February 3, 1972. The note provided for payment of interest from the date of the note on the unpaid principal balance at the rate of seven percent per annum until paid. It further provided that installments not paid when due bear interest at the rate of eight percent per annum from maturity. Under the terms of this note, a default occurred when the first installment was not paid, and the due date for payment of the entire principal was accelerated to February 3, 1972. Accordingly, pre-judgment interest accrued on the unpaid principal at the rate of seven percent per year during the first year after the date of the note until the default on February 3,1972. After the default, pre-judgment interest accrued on the unpaid principal at the rate of eight percent per year until judgment. Under OCGA § 7-4-15, the unpaid interest on the principal which accrued during the first year after the date of the note until the default bore pre-judgment interest at the statutory rate of seven percent per year set forth in OCGA § 7-4-2 (a). The note also provided for payment of eight percent yearly interest on unpaid installments from maturity. Pursuant to this provision and OCGA § 7-4-15, unpaid yearly interest installments on the principal which accrued after the due date for payment of the principal bore pre-judgment interest at the rate of eight percent per year.

Plaintiff’s Exhibit 6 was a note dated June 29, 1971, in the principal sum of $8,000 payable in various installments plus accrued interest beginning on June 29, 1972, with final payment due on June 29, 1981. The note provided for payment of interest from the date of the note on the unpaid principal balance at the rate of eight percent per annum until paid. It further provided that installments not paid when due bear interest at the rate of eight percent per annum from maturity. Under the terms of this note, a default occurred when the first installment was not paid, and the due date for payment of the entire principal was accelerated to June 29, 1972. Accordingly, prejudgment interest accrued on the unpaid principal at the rate of eight percent per year during the first year after the date of the note until the default on June 29, 1972. After the default, pre-judgment interest continued to accrue on the unpaid principal at the rate of eight percent per year until judgment. Under OCGA § 7-4-15, the unpaid interest on the principal which accrued during the first year after the date of the note until the default bore pre-judgment interest at the statutory rate of seven percent per year set forth in OCGA § 7-4-2 (a). The note also provided for payment of eight percent yearly interest on unpaid installments from maturity. Pursuant to this provision and OCGA § 7-4-15, unpaid yearly interest installments on the principal which accrued after the due date for payment of the principal bore pre-judgment interest at the rate of eight percent per year.

Decided May 19, 1999 — Cert. applied for.

Thompson & Sweeny, Virgil L. Thompson, Jr., for appellant.

Gray don W. Florence, Jr., for appellee.

Plaintiff’s Exhibit 7 was a note dated June 29, 1971, in the principal sum of $9,000 payable in a single payment on a due date five years after the date of the note. The note provided for payment of interest on the principal after the due date at the rate of eight percent per annum until paid. Under the terms of this note, prejudgment interest accrued on the unpaid principal at the rate of eight percent per year after the due date until judgment. Because all of the yearly interest on the principal matured after the principal became payable at the due date, no pre-judgment interest on such interest was chargeable under OCGA § 7-4-15.

Plaintiff’s Exhibit 8 was a note dated July 12,1973, in the principal sum of $11,458.62 payable in a single payment on a due date five years after the date of the note. The note provided for payment of interest on the principal after the due date at the rate of seven percent per annum until paid. Under the terms of this note, prejudgment interest accrued on the unpaid principal at the rate of seven percent per year after the due date until judgment. Because all of the yearly interest on the principal matured after the principal became payable at the due date, no pre-judgment interest on such interest was chargeable under OCGA § 7-4-15.

The above analysis of interest due on the seven notes at issue shows that only the notes designated as plaintiff’s Exhibits 5 and 6 contained provisions that would allow interest to be charged under OCGA § 7-4-15 on past due interest installments which matured after the principal itself had fallen due. Byrd, 185 Ga. at 627; Wofford, 72 Ga. at 870-871; Ashford, 43 Ga. App. at 507. It is undisputed that the trial court’s calculations included such interest under OCGA § 7-4-15, not only on the notes designated as plaintiff’s Exhibits 5 and 6, but on all seven notes. Accordingly, the interest due must be recalculated in accordance with this opinion.

Judgment reversed.

McMurray, P. J., and Ruffin, J., concur.

       The unpaid principal would, of course, continue to bear pre-judgment interest at the rate specified in the contract.


text:
    A99A0152.
    FALLON v. METROPOLITAN LIFE INSURANCE COMPANY et al.
    (518 SE2d 170)
   Andrews, Judge.

Colleen Fallon appeals from the trial court’s order granting Metropolitan Life Insurance Company’s motion for summary judgment. Fallon, who worked in one of the stores in a shopping center owned by Metropolitan, sued Metropolitan and the management company of the shopping center after a man raped her while she was alone in the store. The trial court granted Metropolitan’s (landlord’s) motion for summary judgment, and we affirm.

Summary judgment is appropriate when the court, viewing all the evidence and drawing reasonable inferences in a light most favorable to the nonmovant, concludes that the evidence does not create a triable issue as to each essential element of the case. Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

A defendant who will not bear the burden of proof at trial need not affirmatively disprove the nonmoving party’s case; instead, the burden on the moving party may be discharged by pointing out by reference to the affidavits, depositions and other documents in the record that there is an absence of evidence to support the nonmoving party’s case. If the moving party discharges this burden, the nonmoving party cannot rest on its pleadings, but rather must point to specific evidence giving rise to a triable issue.

Id.

1. In her first enumeration of error, Fallon claims the trial court erred in finding the landlord had no duty of care because the incident occurred within leased premises over which the landlord had surrendered exclusive possession and control to the commercial tenant. Fallon contends that because there was a similar incident several months earlier at the shopping center, the landlord had a duty to protect tenants from foreseeable attacks. Fallon concedes that the landlord was under no duty to provide security inside the store, but argues that under OCGA § 51-3-1 the landlord had a duty to keep the common areas and approaches safe.

2. Even assuming a duty to provide security in the common areas, Fallon’s claim fails because she does not show that any lack of security in the common areas was the proximate cause of her attack. To state a cause of action for negligence in Georgia, the following elements are essential:

(1) A legal duty to conform to a standard of conduct raised by the law for the protection of others against unreasonable risks of harm; (2) a breach of this standard; (3) a legally attributable causal connection between the conduct and the resulting injury; and, (4) some loss or damage flowing to the plaintiff’s legally protected interest as a result of the alleged breach of the legal duty.

Brown v. RFC Mgmt., 189 Ga. App. 603, 604 (376 SE2d 691) (1988).

With regard to the requirement that there be a legally attributable causal connection between the conduct and the injury, “[g]uesses or speculation which raise merely a conjecture or possibility are not sufficient to create even an inference of fact for consideration on summary judgment.” Brown v. Amerson, 220 Ga. App. 318, 320 (469 SE2d 723) (1996).

Here, Fallon has submitted no evidence tending to show that a security guard in the common area could have prevented a passer-by from entering a store that was open to the public and committing a crime in the back of the store, out of sight of anyone either passing by or entering the store. There was nothing remarkable about the assailant; he was dressed in a jacket, a shirt and a pair of slacks. The gun he carried was hidden under the jacket. It was a little after 10:00 a.m., and the store was open to customers. Indeed, Fallon stated that she “didn’t think anything about it” when the assailant first entered the store.

Fallon cites to no case law in support of her contention that there was evidence of causation sufficient to go to a jury, and we find none. Fallon relies on an expert affidavit submitted in response to the landlord’s motion for summary judgment as creating an issue of fact on causation. But, the affidavit adds nothing to the record beyond a conclusory statement that it is the expert’s opinion that security personnel would have a “strong deterrent effect on the type of crime that occurred here.”

This is not enough to overcome well-settled case law on this issue. For instance, in Stephens v. Clairmont Center, 230 Ga. App. 793 (498 SE2d 307) (1998), this Court found that even assuming a breach of duty to provide security in the common area of the shopping center, there was no evidence to causally link such a breach with the attack and shooting of a store employee by three men posing as customers. Id. at 795.

Also, in Godwin v. Olshan, 161 Ga. App. 35, 37 (288 SE2d 850) (1982), the Court rejected the argument that the landlord should have provided security in the common areas because this would have deterred the criminal element from entering the shop. The court concluded there was a problem with causation “because of the extraordinary speculation inherent in the subject of deterrence of men bent upon criminal ventures.” Id. at 37.

Likewise, in the recent case of Post Properties v. Doe, 230 Ga. App. 34 (495 SE2d 573) (1997) (physical precedent only), a tenant was attacked inside her apartment, and this Court found that the tenant’s claims that heightened security could have prevented the attack were mere speculation and insufficient to establish a direct causal link between the lack of security and the means of entry. Id. at 40. See also Collins v. Shepherd, 212 Ga. App. 54, 56 (441 SE2d 458) (1994) (summary judgment was proper when plaintiff presented no evidence that lack of security was proximate cause of injury resulting from fight in the ladies’ rest room).

Decided May 19, 1999.

Stevens & Associates, Ronald S. Stevens, James B. McClung, for appellant.

Hawkins & Parnell, Warner S. Fox, Matthew F. Barr, for appellees.

Therefore, as Fallon has introduced no evidence on the issue of causation, the trial court correctly determined that a jury would be required to engage in pure speculation and guesswork in order to conclude that failing to provide security in the common areas of the shopping center caused the attack on an employee inside the store. Stephens, supra at 795; Godwin, supra at 37. The trial court did not err in granting the landlord’s motion for summary judgment on this issue.

Judgment affirmed.

McMurray, P. J., and Ruffin, J., concur in the judgment only.


text:
    A99A0241.
    In the Interest of S. C. M. H., a child.
    (517 SE2d 598)
   Smith, Judge.

The mother of S. C. M. H. appeals from an order entered by the juvenile court terminating her parental rights. We find no error, and we affirm.

Under OCGA § 15-11-81 (a), the decision whether to terminate a parent’s rights involves a two-prong test. First, the juvenile court must determine whether “clear and convincing evidence of parental misconduct or inability” exists. Id. In the Interest of R. N., 224 Ga. App. 202 (480 SE2d 243) (1997). A finding of parental misconduct or inability must be based on clear and convincing evidence showing the following: (1) The child is deprived; (2) this deprivation is caused by the parent’s “lack of proper parental care or control”; (3) the cause of the deprivation is likely to continue; and (4) the “continued deprivation will cause or is likely to cause serious physical, mental, emotional, or moral harm to the child.” OCGA § 15-11-81 (b) (4) (A) (i)(iv). Under OCGA § 15-11-81 (a), if this first prong is met, the juvenile court must then consider whether termination is in the child’s best interest. R. N., supra. In reviewing the evidence on appeal, we do not weigh the evidence or determine witness credibility. Instead, “we defer to the Juvenile Court’s factfinding and affirm unless the evidence fails to satisfy the appellate standard.” (Citation and punctuation omitted.) In the Interest of K. W., 233 Ga. App. 140, 141 (2) (503 SE2d 394) (1998).

1. The mother first claims that the trial court erred in finding that S. C. M. H. was deprived. But the record contains three previous unappealed orders finding that S. C. M. H. was deprived, that this deprivation was likely to continue, and that it would not be in her best interest to return to her mother. S. C. M. H. was first found to be deprived in June 1993 by the Newton County Juvenile Court. The case was later transferred to Rockdale County, and a second order entered in November 1994 included the following findings: The mother’s home had no water, electricity, or food, and several windows were broken out; the mother had been intoxicated in the company of her children, thereby neglecting them; despite arrangements made by the Rockdale County Department of Family & Children Services for S. C. M. H. to stay with her grandmother until the mother could find stable housing, the mother took S. C. M. H.; and the minor sister of S. C. M. H. had become pregnant by a 20-year-old male while in the mother’s custody. The order further recited that S. C. M. H. was “inadequately sheltered, protected and supervised.” Under this order, the mother was required, among other things, to take weekly drug screens, pay $25 per week child support, establish a stable home, provide proof of employment, and maintain employment at all times.

The third order, entered in June 1998 (one month before the termination hearing), made several findings, including the following: S. C. M. H. and her sister had been in custody of DFACS since August 1994, when her sister became pregnant at age 12, and circumstances warranting the earlier finding of deprivation continued; the mother had not completed therapy for her alcohol and drug problem; she was unable to provide an adequate home or provide for the children’s physical and moral health; and the children were “without parental care and control and [were] likely to remain so for the foreseeable future.” The court also found that the mother had failed to complete her case plan goals of remaining drug and alcohol free, receiving treatment for her drug and alcohol abuse, and obtaining steady employment and housing. Based on these findings, the juvenile court concluded that it would not be in the best interests of S. C. M. H. to be returned to the mother. These unappealed orders were sufficient to establish that S. C. M. H. was deprived. See, e.g., In the Interest of K. L., 234 Ga. App. 719, 722 (507 SE2d 542) (1998); R. N., supra at 203. In the Interest of G. A. P., 147 Ga. App. 568 (249 SE2d 157) (1978), relied upon by the mother, is distinguished from this case. In G. A. P., this court stated that the juvenile court erroneously “took judicial notice of a previous order issued by it in connection with a prior petition alleging that [the] child was deprived.” (Emphasis supplied.) Id. But here, the previous deprivation orders constituted part of the same legal proceeding instituted by Newton County and continued by Rockdale County.

Furthermore, the record supports a finding of deprivation. A deprived child is defined in part as a child who is “without proper parental care or control.” OCGA § 15-11-2 (8) (A). A juvenile court can consider several factors in determining whether a child is without proper parental control, including the parent’s “[e]xcessive use of or history of chronic unrehabilitated abuse of intoxicating liquors or narcotics or dangerous drugs,” as well as a non-custodial parent’s failure “for a period of one year or longer prior to the filing of the petition for termination . . . [t]o provide for the care and support of the child as required by law or judicial decree” or to comply with a court-ordered reunification plan. OCGA § 15-11-81 (b) (4) (B) (ii) and (C) (ii) and (iii).

Evidence presented at trial was sufficient to show the presence of these factors. First, the mother was required by the juvenile court’s previous order to pay $25 per week child support on behalf of S. C. M. H. It appears that she failed to make these payments; two DFACS caseworkers who worked with her from September 1995 through the time of the hearing in July 1998 testified that they were unaware of any support payments made by the mother.

Also, the plan developed by one of these caseworkers required the mother, among other things, to receive help for her drug and alcohol problem and remain drug and alcohol free. Although the caseworker testified that drug screens were negative during the time she worked with her, the mother “admitted she was still drinking and having a problem with alcohol.” She also testified concerning rehabilitation programs begun but not completed by the mother. The caseworker stated that she was “very lenient with” the mother and attempted to give her options concerning treatment. For example, the mother claimed she did not have transportation to attend appointments for one rehabilitation program, and the caseworker offered to take her to these appointments and discussed other transportation options. The mother still failed to complete the program. The caseworker offered her another option, inpatient treatment, and arranged with the mother to take her to the facility. The mother, however, failed to meet the caseworker at the designated time and did not attend that program. The caseworker then allowed the mother to attend Alcoholics Anonymous meetings, which she also failed to complete. Finally, on two occasions, once during a scheduled visit between the mother and S. C. M. H., and once during a court proceeding, the caseworker smelled alcohol about her. These facts showed a lack of parental care and control.

In addition, the mother’s case plan required her to become gainfully employed, maintain her employment, and maintain a stable residence. One caseworker, who worked with the mother from September 1995 through August 1997, testified that the mother reported to her that she was working, but the caseworker “was unable to verify any of those employments because she had either quit the job or reported that she had injured herself and couldn’t go or for different reasons.” The caseworker verified only one temporary job, which the mother had when the caseworker began working with her. She was employed at that job only through December 1995. The caseworker testified that the mother failed to maintain a stable residence “for any length of time.” She also stated that visitation with S. C. M. H. was “very erratic. . . . Sometime it was a couple times a month. Sometimes I wouldn’t hear from her for a few weeks. And sometimes there was a space of a few months between visits.”

This caseworker also testified concerning her attempts to reunify the mother with S. C. M. H. She acknowledged that the efforts she made to assist the mother in attending alcohol and drug treatment classes were made in part to facilitate possible reunification, and she testified that she suggested that the mother receive counseling herself in order to reach this goal. The mother did not receive any individual counseling, and although she attended a few family counseling sessions concerning her other daughter, she did not complete them.

Finally, a different caseworker testified concerning her interaction with the mother during the last few months before the termination hearing, from April 1998 through July 1998. At the time this caseworker began working with the mother, attempts were no longer being made to reunify her with S. C. M. H. This caseworker testified that during each visit over the past three months, the mother’s claimed residence was different from the one before. These facts established during the hearing, in addition to those recited in the juvenile court’s orders, showed both past and present deprivation within the meaning of OCGA § 15-11-2 (8) (A).

2. Contrary to the mother’s contention, the evidence presented at trial also sufficiently supported the juvenile court’s finding that the causes of deprivation were likely to continue. “Although past deprivation is not sufficient for termination without a showing of present deprivation, the court can consider a parent’s past conduct in determining whether such conditions of deprivation are likely to continue.” (Citations and punctuation omitted.) R. N, supra at 204. While the mother testified she had been living in an apartment with a man for approximately six months, other evidence was presented that she had three residences within the three months preceding the hearing. The juvenile court was authorized to infer from the mother’s past conduct that this pattern of failing to establish a stable household was likely to continue. Furthermore, based on her continuous failure to pay $25 per week for the support of S. C. M. H., as ordered, and her repeated failure to obtain rehabilitation for her alcohol problem despite repeated attempts by her caseworker to assist her in attending counseling, “[t]he court was entitled to infer from the evidence that, despite the best efforts of DFACS . . . the same pattern of deprivation would continue.” R. N., supra at 204.

We note that the mother makes no argument concerning the requirement that parental misconduct must be based upon a showing that “continued deprivation will cause or.is likely to cause serious physical, mental, emotional, or moral harm to the child.” OCGA § 15-11-81 (b) (4) (A) (iv). But we have nevertheless examined the record with respect to this requirement. We conclude that the evidence of the mother’s repeated failure to remain alcohol free and her failure to take steps necessary to reunite with S. C. M. H. was sufficient to satisfy this requirement. See generally In the Interest of J. M. B., 231 Ga. App. 875, 878-879 (1) (d) (501 SE2d 259) (1998) (appellant’s failure to take necessary steps to reunite with child); In the Interest of J. M. D., 221 Ga. App. 556 (472 SE2d 123) (1996) (termination upheld, even when mother attempted to obtain rehabilitation, where mother continued to use drugs). We also note that the juvenile court was not required to return S. C. M. H. to the mother and then not change custody until the child suffered serious injury. See, e.g., In the Interest of K. R. C., 235 Ga. App. 354, 355 (1) (510 SE2d 547) (1998).

Finally, the mother does not take issue with the juvenile court’s conclusion that termination would be in the best interest of S. C. M. H. But again, we have considered this requirement. The same factors showing the existence of parental misconduct or inability can support a finding that termination of parental rights would be in the child’s best interest. See, e.g., In the Interest of P. N. L., 228 Ga. App. 187, 190 (2) (491 SE2d 434) (1997). Given the evidence of the mother’s history of failure to maintain stable housing and employment, her failure to provide minimal child support, and her failure to complete drug and alcohol rehabilitation and remain alcohol free, the trial court was authorized to conclude that termination of the mother’s parental rights was in S. C. M. H.’s best interest.

3. The mother argues that the juvenile court made several findings that were not supported by the record. She first claims that the court erroneously found that she came into contact with her case managers with an odor of alcoholic beverage about her person. The trial transcript, however, clearly shows that a caseworker at least twice noticed the odor of alcohol on the mother’s person. The mother also contends the juvenile court erroneously cited to earlier orders entered in her case, but as discussed above, it is well established that prior unappealed deprivation orders may be used to establish deprivation. K. L., supra at 722; R. N., supra at 203.

The mother also maintains the record does not support the juvenile court’s finding concerning her failure to meet case plan goals. In this regard, the juvenile court found as follows: “The mother has failed to meet any of her case plan goals in that the mother has failed to maintain consistent and regular contact with the Petitioner, has failed to maintain stable housing, has failed to maintain stable employment, has failed to complete drug and alcohol treatment and has failed to communicate and visit with the child [in] a regular or meaningful parental manner. The mother has therefore failed to abide by a case plan as ordered by this Court to reunify the family.”

The mother claims she often visited with S. C. M. H. Although her caseworker testified that the mother met with S. C. M. H. during each scheduled visit, the mother’s previous caseworker testified that her visits with the child were “very erratic.” The mother also contends she met her case plan goal of obtaining employment. But the evidence on this issue was conflicting. While the testimony of her caseworkers showed that she had not maintained steady employment, the mother testified to the contrary. It was for the juvenile court, however, and not this court, to assess the credibility of the witnesses. See K. W., supra at 141 (2).

With regard to the goal that the mother abstain from drug and alcohol use, it is true that she underwent at least three negative drug screens. The mother mischaracterizes the evidence, however, by arguing that “the screens were discontinued because the Department determined not to pay for any further tests.” Her caseworker testified that the Department paid for the screens until Department “funds were real low. And we were told that the client should be paying” for the screens. The caseworker requested the mother to pay for future screens, and the mother stated often that she would do so. According to the caseworker, however, she failed to “follow through.” The trial court’s findings, as well as its conclusion that the mother’s parental rights should be terminated, are supported by the record, and she has shown no basis for reversal.

4. We do not agree with the mother that the juvenile court erroneously failed to order DFACS to consider less restrictive alternatives to termination. First, as discussed above, the record supports the juvenile court’s conclusion that termination was appropriate. Second, we note that the trial transcript shows that DFACS searched for relatives with whom to place S. C. M. H. but was unable to locate anyone suitable or willing to care for the child.

5. The mother contends the trial court erroneously admitted hearsay including statements about goals and plans that were made on her behalf, “often without her approval or even knowledge.” To the extent that this argument encompasses the caseworkers’ testimony concerning case plans developed on the mother’s behalf, we note that these case plans were not admitted into evidence, contrary to the mother’s argument. While it is true that the caseworkers referred to these plans during their testimony, it appears that the information contained within these plans was within the caseworkers’ personal knowledge.

Decided May 19, 1999.

John C. Leggett, for appellant.

Thurbert E. Baker, Attorney General, Dennis R. Dunn, Deputy Attorney General, Shalen A. Sgrosso, Assistant Attorney General, Mumford, Myers & Mooney, Albert A. Myers III, for appellee.

It does appear that the juvenile court in its final order may have taken notice of prior case plans, which were not actually admitted into evidence. But we find no reversible error, because the trial court’s conclusion that termination was warranted and in the best interest of the child was supported by evidence that was properly admitted.

Judgment affirmed.

Pope, P. J., and Eldridge, J., concur.


author: Pope, Presiding Judge.

text:
    A99A0263.
    ASIAN SQUARE PARTNERS, L.P. v. CUONG QUYNH LY.
    (518 SE2d 166)
   Pope, Presiding Judge.

On or around May 14, 1993, Cuong Quynh Ly d/b/a K & T Billiards entered into a five-year written commercial lease with Asian Square Partners, L.P. The lease is a pre-printed form furnished by Asian Square, to which the parties made handwritten and typewritten changes. Paragraph 4 (d) of the lease contains a five-year schedule of rent, which shows annual rental increases. Beneath the schedule is an asterisk referencing two footnotes at the bottom of the page. The first reads, “Tenant shall have a Five Year Option to lease.” The second states, “Tenant shall start paying rent on July 15, 1993.”

A rider to the lease granted K & T an option to renew for five additional years provided K & T gave Asian Square written notice 90 days prior to expiration of the original term. The renewal option stated, “The rental amount for each of the five (5) years shall be equal to a N/A percent N/A increase over the preceding year’s rent.” The term “N/A” in this provision was typed into two blanks on the pre-printed lease form.

K & T wrote a letter on March 21, 1998 notifying Asian Square that it intended to renew the lease for five additional years. On May 13,1998, Asian Square replied that it would not renew the lease and that K & T had until June 15, 1998, to vacate the premises. When K & T did not vacate, Asian Square filed a dispossessory action. Following a brief hearing limited to the issue of the enforceability of the renewal option, the trial court found K & T had properly exercised its option to renew the lease and issued judgment in its favor. Asian Square appeals.

1. Asian Square first argues that the renewal option was unenforceable because it did not specify the rent to be paid during the renewal term.

“A provision for the renewal of a lease must specify the terms and conditions of the renewal with such definite terms and certainty that the court may determine whát has been agreed on, and if it falls short of this requirement it is not enforceable. It must be certain and definite both as to the time the lease is to extend and the rent to be paid.”

(Footnote omitted.) Smith v. Huckeba, 232 Ga. App. 374, 375 (1) (501 SE2d 877) (1998). It is not necessary, however, that the renewal option specifically list these terms. It is sufficient if it provides a definite method for determining the amount of the rent and the duration of the renewal lease. The renewal provision is unenforceable only if these terms are not specified and no method is provided by which they can be determined. Patellis v. 100 Galleria Parkway Assoc., 214 Ga. App. 154 (1) (447 SE2d 113) (1994).

In this instance, the renewal option specifically provides that the new lease shall be for five years, but states that the rent “shall be equal to a N/A percent N/A increase over the preceding year’s rent.” The parties disagree as to the meaning of this language. Asian Square argues the language shows that the parties did not decide what the rent would be during the renewal term. K & T argues the term “N/A” in the context of the language simply means that there will be no percentage increase in the rent during the renewal term.

There are three steps in the process of contract construction. The trial court must first decide whether the contract language is ambiguous; if it is ambiguous, the trial court must then apply the applicable rules of construction (OCGA § 13-2-2); if after doing so the trial court determines that an ambiguity still remains, the trier of fact must then resolve the ambiguity.

(Citations and punctuation omitted.) Empire Distrib. v. George L. Smith II &c. Auth., 235 Ga. App. 742, 744 (509 SE2d 650) (1998). A court should only consider parol or other extrinsic evidence if any ambiguity remains after it has applied the rules of construction. Id.

We agree with the trial court’s determination that the language of the renewal option is ambiguous, and that the applicable rules of construction must be employed to determine the parties’ meaning. We also agree with the trial court that no ambiguity remains in the language after the rules of construction are applied.

At issue is what the parties meant by the term “N/A.” In construing a contract, courts must give words their usual and common meaning. OCGA § 13-2-2 (2); McDuffie v. Argroves, 230 Ga. App. 723, 725 (2) (497 SE2d 5) (1998). In general usage, the term “N/A” is a shorthand form of the phrase “not applicable.” Thus, the renewal option may be read as providing that the rent for the renewal term “shall be equal to a not applicable percent not applicable increase over the preceding year’s rent.”

The law favors a construction of this language that will uphold the contract as a whole, and “the whole contract should be looked to in arriving at the construction of any part.” OCGA § 13-2-2 (4). Whenever the parties intended that a portion of the preprinted lease form was not to apply to their agreement, they drew a line through the language. However, they did not strike the language in the renewal option. Thus, it appears that the parties intended the renewal option to apply.

This conclusion is reinforced by a second rule of construction. Because the contract is printed, the typewritten portions of the contract prevail over the printed language. OCGA § 13-2-2 (7); Grier v. Brogdon, 234 Ga. App. 79, 81 (2) (505 SE2d 512) (1998). The lease contains a typewritten note in paragraph 4 stating that K & T was to have an option to renew, and the renewal option is intact, with the addition of the term “N/A” in the blanks specifying the percentage the rent would increase during the new lease.

When these rules are considered along with the rule that any ambiguity in the language must be construed against Asian Square as the drafter of the lease, OCGA § 13-2-2 (5); McDuffie v. Argroves, 230 Ga. App. at 725 (2); Promenade Assoc. v. Finish Line, 194 Ga. App. 741, 743 (391 SE2d 714) (1990), we find that the parties intended for the renewal option to apply, but did not intend for the language regarding a percentage increase in rent to apply. In other words, they intended that there would be no increase in rent for the renewal period.

And while the renewal option does not set out a specific amount for rent, it does provide a method for determining that amount. See Patellis v. 100 Galleria Parkway Assoc., 214 Ga. App. at 154-155 (1). The lease defines the amount of rent that K & T would be paying at the end of the original term, and the renewal option provides there will be no increase in that amount. Thus, the renewal option gave K & T the right to renew the lease for five years at the same rent it was paying at the end of the original term.

Because there is no uncertainty as to the duration of the new rental term or the amount of rent, the trial court correctly found that the renewal option was enforceable. Compare Smith v. Huckeba, 232 Ga. App. at 376 (where lease gave no method for determining the rent for the renewal term, but stated only that it would be the “fair market rental value of the property” at the time of renewal); Patellis v. 100 Galleria Parkway Assoc., 214 Ga. App. at 155 (where lease provided that rental rate for the renewal would be negotiated between landlord and tenant at the time of renewal).

2. Asian Square next contends the trial court erred in ruling that K & T had properly exercised its option to renew without hearing additional evidence on the issue. We agree and reverse.

Under the renewal provision, K & T was required to give Asian Square notice of its intent to renew 90 days before the expiration of the original term. The second paragraph of the lease provides,

The term of this Lease (hereinafter referred to as the “Lease Term”) shall commence on the “Rental Commencement Date” hereinafter described and, unless sooner terminated or extended as hereinafter provided, shall terminate on the last day of the_Lease Year (as that term is hereinafter defined).

Under this provision, the original term ended on the last day of a designated lease year. While the parties failed to specify which lease year marked the end of the term, other provisions in the lease appear to anticipate a five-year term. The rental schedule in paragraph 4 (d) clearly contemplates a lease extending for five years, and the renewal option provides the opportunity to extend the lease for “an additional five (5) years.” Viewing the contract as a whole, therefore, we conclude that the parties intended the original term to end on the last day of the fifth lease year. OCGA § 13-2-2 (4).

The lease then describes “lease year” as “the first full twelve (12) calendar month period contained within the Lease Term and each successive twelve (12) calendar month period thereafter, and the first lease year shall also include any partial calendar month at the beginning of the Lease Term.” Therefore, a lease year is defined as the first 12-month period after the lease term begins, as well as any subsequent 12-month periods within the term. Paragraph 2 provides that the lease term begins on the “Rental Commencement Date,” and thus each lease year runs for a 12-month period after the Rental Commencement Date.

Decided May 19, 1999.

Charles F. Peebles, for appellant.

Paul S. Suda, Max Benkel, for appellee.

The crucial question then is what the parties intended by the term “Rental Commencement Date.” The trial court found that the Rental Commencement Date was July 15, 1993, based upon the typewritten footnote to paragraph 4 (d) stating that the tenant was to start paying rent on that date. However, the term “Rental Commencement Date” is a defined term, which has no direct connection to the date rent is first paid.

Paragraph 3 of the lease states,

The term Rental Commencement Date shall mean the earlier to occur of the date FIVE (5) days after Landlord shall notify Tenant that the Demised Premises are ready for occupancy, or the date on which the Tenant shall be deemed to have accepted the Demised Premises, to have acknowledged that the same are in the condition called for hereunder, and to have agreed that as of the time all of the obligations of the Landlord imposed under this Lease have been fully performed.

The lease then states that the parties are to execute a written instrument specifying and acknowledging the Rental Commencement Date and the expiration of the Lease Term. No such written instrument appears in the record.

As the parties failed to specify a date, the Rental Commencement Date must be determined from the definition in the lease. That definition is dependent upon extrinsic facts regarding Asian Square’s notice and K & T’s acceptance of the premises. Therefore, the trier of fact will require additional evidence before determining the Rental Commencement Date.

Accordingly, we find that it was error for judgment to issue in favor of K & T without the consideration of additional evidence. We therefore remand for further proceedings in accordance with this decision.

Judgment affirmed in part and reversed and remanded in part.

Smith and Eldridge, JJ., concur.


text:
    A99A0445.
    ESTEP v. THE STATE.
    (518 SE2d 176)
   Pope, Presiding Judge.

Defendant Leslie Estep was convicted by a jury of cruelty to children. She appeals following the denial of her motion and amended motion for new trial.

Dennis Fish, an investigator with the Habersham County Sheriff’s Department, testified that he and a Department of Family & Children Services caseworker, Angela Lingerfelt, were called to the Habersham Medical Center after Estep’s three-year-old daughter was brought into the emergency room with a broken leg. Fish and Lingerfelt both testified that Estep initially told them that she did not know how the victim broke her leg. Fish testified that he interviewed Estep’s six-year-old son outside her presence and the son told Fish that his mother was mad and threw his sister down on the floor. Lingerfelt testified she asked the victim what happened to her leg and she responded “mommy hurt me.” Lingerfelt testified that at that point Estep began crying and stated that she must have “dropped the [victim] down too hard.” Because the incident occurred in Banks County, the case was turned over to Banks County DFACS and law enforcement. James O’Neal, who was then an investigator with Banks County DFACS, testified that he also talked with Estep’s son at the hospital on the day of the incident, and that the son told him that his mother was upset with the victim and threw her in or against the crib or playpen. Peggy Woodward, a Banks County DFACS caseworker, testified that Estep told her that the victim and her son continued to get in the playpen with her one-year-old despite Estep’s repeated admonitions for them not to do so, and that she physically removed the victim from the playpen to the floor. Initially, Estep told the caseworker that she did not realize the victim had been hurt, but she later recanted and admitted that she heard the bone in the victim’s leg crack when she put her down. Estep later told a Banks County Sheriff’s Investigator that she was having a hard time at home, that the children were unruly and that “she just had all she could take, and when [her daughter] climbed into the playpen the last time, she just went out and jerked [her] up and just dropped her on the floor.” Estep also gave the investigator a written statement that she “grabbed [the victim] and dropped her on the floor.”

1. In her first three enumerations of error, Estep argues that her right to be present at trial and her right to confront witnesses against her were violated when portions of the proceedings were conducted in her absence.

The transcript shows Estep was present on the first day of trial, but was absent for the remainder of the proceedings. The trial court noted on the record that Estep was not present in court by 9:20 a.m. and that he had clearly stated the day before that proceedings would reconvene at 9:00 that morning. Defense counsel objected to proceeding in Estep’s absence and advised the court that he did not know why Estep was absent. The trial court noted that “[a]t this point the best information available to the Court is that the Defendant is not present and no reason of substance is known for her failure to be present this morning. I’m going to proceed at this time because of the circumstances with the doctors, the work that they need to be doing, and the fact that they’re being required to be here by subpoena.” Following the doctors’ testimony, the trial court stated on the record that at about 9:30 a.m. he received a note stating that Estep’s mother had called defense counsel’s office and told them Estep’s car had broken down but that she was on her way. At that point the trial court decided to “wait a while and let’s see. . . . [W]e’ll try to find out what her situation is before we proceed any further.”

The state rested its case, and defense counsel stated the only witness he planned to call was Estep. The trial court granted a recess/lunch break of approximately two hours in order to give Estep time to arrive. Defense counsel also drove along the road he thought Estep would be traveling to try and find her. The trial court subsequently decided to recess until 8:30 a.m. the following day and issued a bench warrant to procure Estep’s presence.

Estep was not present when court reconvened the following morning. The prosecuting attorney advised the court that the sheriff’s office had been unable to locate Estep and the bench warrant had not been served. Defense counsel also advised the court of bis efforts to locate Estep and stated he had talked to her the previous evening and advised her to be in court that morning by 8:30 a.m. The trial court then made a finding that Estep was voluntarily absent, and that the trial should go forward. Defense counsel objected to the court’s ruling on the basis that there was no evidence that Estep’s absence was voluntary. At 10:04 a.m., after the jury had been charged, defense counsel reported that Estep had called his office and was on her way. However, Estep never arrived. The jury returned a guilty verdict, and Estep was sentenced to ten years, three to be served in confinement and the remainder to be served on probation, provided certain conditions were first met.

Relying on Goodroe v. State, 224 Ga. App. 378 (480 SE2d 378) (1997), Estep argues the trial court erred in conducting the trial and imposing sentence in her absence.

Pursuant to Art. I, Sec. I, Par. XII of the Georgia Constitution, it is the legal right of a person accused of crime in this State to be present at all stages of his trial. The accused and his counsel have the right to be present at every stage of the proceedings and personally see and know what is being done in the case.

(Citations and punctuation omitted.) Goodroe v. State, 224 Ga. App. at 380. The state argues Goodroe is distinguishable because Estep was out on bail and voluntarily absented herself from the proceedings. We agree. As our appellate courts have repeatedly held “[c]onfrontation rights are personal to the accused and are waived when the accused is free on bail and voluntarily absents himself from the trial.” Byrd v. Ricketts, 233 Ga. 779, 780 (213 SE2d 610) (1975).

In this case the sequence of events surrounding Estep’s absence supports the trial court’s finding that her absence on the second and third days of trial was voluntary. “The burden of determining the cause of the defendant’s absence was on [her] counsel, not on the trial judge.” Smith v. State, 139 Ga. App. 515, 517 (228 SE2d 705) (1976). “[Estep] voluntarily absented [herself] from the court since [she] was free on bail and clearly knew the proceedings had begun, but had not made sufficient arrangements to attend.” Winfield v. State, 210 Ga. App. 849, 851 (1) (437 SE2d 849) (1993); Gee v. State, 212 Ga. App. 422, 423 (1) (442 SE2d 290) (1994); see also Yancey v. State, 219 Ga. App. 116 (464 SE2d 245) (1995); Brown v. State, 199 Ga. App. 856, 857 (2) (406 SE2d 516) (1991).

Moreover, contrary to Estep’s contention otherwise, the court was authorized to sentence Estep in her absence. “[V]oluntary absence of the accused waives his right to be present when sentence is imposed.” Byrd, 233 Ga. at 780. See also Croy v. State, 168 Ga. App. 241 (1) (308 SE2d 568) (1983). Under these facts we find Estep waived her confrontation rights and her right to be present during the trial. Estep’s first three enumerations of error are thus without merit.

2. Estep next argues that the trial court erred in admitting evidence that Forsyth County DFACS previously had investigated her after bruising was noticed on her son. During an interview, Estep’s son, who was at that time four years old, stated that Estep had hit him with a rock on his leg. Estep told the caseworker that her son had been “pitching a fit” and she grabbed him by the arm and “he tripped out of the car and fell onto the rocks.” No charges were filed against Estep as a result of this incident.

On appeal, Estep argues that the trial court erred in admitting the prior act to prove her criminal intent in this case. But the record shows that Estep did not raise this objection below. At the similar transaction hearing Estep argued that the evidence should not be admitted because the acts lacked similarity; she did not challenge the purpose for which the evidence was being admitted. “It is well settled that a reason urged by enumeration of error on appeal which is different from that urged below will not be considered for the first time on appeal.” (Citations and punctuation omitted.) Moon v. State, 199 Ga. App. 94, 97 (2) (404 SE2d 273) (1991) (physical precedent only); Hunter v. State, 202 Ga. App. 195, 196-197 (3) (413 SE2d 526) (1991).

Decided May 19, 1999.

Kevin R. Christopher, for appellant.

3. Relying on Woodward v. State, 269 Ga. 317, 321-323 (3) (496 SE2d 896) (1998), Estep also argues the trial court erred by allowing witnesses to testify about statements her son made to them about the incident. In Woodward, our Supreme Court held the 1995 amendment to our Child Hearsay Statute, OCGA § 24-3-16, which allowed the admission into evidence of hearsay statements made by a child under the age of 14 who witnesses an act of physical or sexual abuse inflicted upon another, unconstitutional because it violated the equal protection clauses of our state and federal constitutions.

We note at the outset that this issue may not have been preserved for appellate review. The trial transcript shows that at trial Estep objected to the testimony at issue here on the basis that the state had not presented an adequate foundation for admission of the evidence and also urged a violation of her confrontation rights. The trial court specifically questioned defense counsel to ensure that there was no other basis for objection. Consequently, it is arguable that Estep’s objection was insufficient to preserve the ground now urged on appeal.

However, even assuming this issue is properly before us, reversal is not required. Division 4 of Woodward makes clear that “erroneous admission of the [child] witness’s hearsay statements is only reversible if it appears likely that the hearsay contributed to the guilty verdict.” Woodward v. State, 269 Ga. at 324 (4). Estep argues that reversal is required here, because the hearsay statements went to the issue of intent. We disagree that reversal is required. The witness’ statements were merely cumulative of Estep’s own statements that she was angry when the incident occurred. See Whatley v. State, 270 Ga. 296, 299 (7) (509 SE2d 45) (1998). Moreover, as the state points out, the most “damaging” testimony on the issue of intent came from the orthopedic surgeon who treated the victim, who testified the type of injury the victim suffered was usually caused by an intentional act, not by an accident. Reversal of Estep’s conviction is not required under the facts of this case.

Judgment affirmed.

Smith and Eldridge, JJ., concur.

Timothy G. Madison, District Attorney, Robin R. Riggs, Assistant District Attorney, for appellee.