author: Miller, Judge. Andrews, Presiding Judge,

text:
    A01A1344.
    PINE CREEK, LLC v. PINE MOUNT, LLC.
    (558 SE2d 44)
   Miller, Judge.

Pine Creek, LLC (Pine Creek) appeals from the trial court’s partial grant of summary judgment to Pine Mount, LLC (Pine Mount) on Pine Mount’s third defense to this dissenter’s rights action initiated by Pine Creek pursuant to OCGA § 14-11-1001 et seq., the Dissenters’ Rights Article of the Georgia Limited Liability Company Act (the Act).-

Pine Creek asserts four enumerations of error. The first and fourth are that the trial court erred in granting summary judgment to Pine Mount on its third defense and that the trial court erred in denying Pine Creek’s motion to strike or dismiss Pine Mount’s third defense. Both obviously address the same issue. The second enumeration is that the trial court erred in concluding that Pine Creek violated the Operating Agreement, one of the legal bases upon which the trial court granted summary judgment on the third defense. The third enumeration is that the trial court erred in dismissing the petition to allow Pine Mount to pursue a private right of action for damages, because Pine Creek’s limited liability action complied with all relevant statutory and contractual requirements, the converse of the second enumeration of error. In summary, there are two issues before the Court: (1) whether the trial court erred in concluding that the Operating Agreement was violated, and (2) whether the trial court erred in granting summary judgment on Pine Mount’s third defense, thereby allowing its pursuit of causes of action other than dissenters’ rights.

In reviewing the grant or denial of a motion for summary judgment, we apply a de novo standard of review and consider the evidence with all reasonable inferences therefrom in favor of the party opposing summary judgment.

So viewed, the evidence was that, from 1984 until the formation of Pine Creek on June 2, 1997, Philip Browning, Jr. (Browning) had held, through various entities, a contract or option to purchase approximately 153 acres located near the Interstate 85 and Old Peachtree Road interchange in Gwinnett County, an area of burgeoning growth and development. In the spring of 1997, nearing the expiration of the option on the property, Madison Ventures, Ltd. and John D. Stephens agreed with Pine Mount (an entity owned by Browning) to form a limited liability company to be known as Pine Creek, LLC, which company would purchase as its sole asset the 153 acres. The parties agreed Pine Mount would have a 25 percent interest in Pine Creek, Madison Ventures a 37.5 percent interest, and Stephens a 37.5 percent interest. Madison Ventures and Stephens were each putting up $2.25 million to close on the property. On June 2, 1997, the parties executed an Operating Agreement for Pine Creek.

On August 27, 1997, John Stephens transferred his 37.5 percent interest in Pine Creek to Stephens, Inc. Madison Ventures consented to this transfer, but Pine Mount (Browning) was not aware of the transfer. Although acknowledging that he was listed as an individual in and signed the Operating Agreement as an individual, Stephens contended that it was a mistake. According to him, the $2.25 million put into Pine Creek came from Stephens, Inc., and the corporation was to have been the member of Pine Creek.

On September 12, 1997, Madison Ventures transferred its 37.5 percent interest in Pine Creek to Stephens, Inc., without advising Pine Mount. The purpose of the transfer was to allow Pine Creek to have part of the property rezoned without the controversy associated with Madison Ventures’ owner. On June 30, 1998, Stephens, Inc. transferred this 37.5 percent interest back to Madison Ventures, again without Pine Mount’s knowledge.

On July 7, 1998, Pine Creek closed the sale of the 153 acres to M. D. Hodges for over $10 million, thereby triggering Pine Mount’s right to dissent under OCGA § 14-11-1002 (a) (2). The sale was completed without calling a meeting of all members of Pine Creek, without a vote of the membership, and without the consent of Browning and Pine Mount.

Pine Creek immediately sent a notice of the sale to Pine Mount. Pine Mount disagreed with selling the property outright and wanted to develop it instead. Pine Mount also disagreed with the sale price and responded with its demand for payment of $4.4 million as the fair value of its 25 percent membership interest. In response, on September 18, 1998, Pine Creek filed its petition to determine the fair value of Pine Mount’s membership interest in Pine Creek, pursuant to OCGA § 14-11-1011 (a).

OCGA § 14-11-1002 (b) states in part:

A member entitled to dissent and obtain payment for his or her membership interest. . . may not challenge the limited liability company action creating his or her entitlement unless the limited liability company action fails to comply with procedural requirements of this chapter ... or the written operating agreement. . . .

Section 6.1.1.3 of the Pine Creek Operating Agreement provides that “[n]o Person may Transfer all or any portion of or any interest or rights in the Person’s Membership Rights or Interest, unless . . . the Transfer will not result in the termination of the Company pursuant to [IRS] Code Section 708.” Section 6.1.3 further provides:

The Transfer of any Membership Rights or Interests in violation of the prohibition contained in this Section 6.1 shall be deemed invalid, null and void, and of no force or effect. Any Person to whom Membership Rights are attempted to be transferred in violation of this Section shall not be entitled to vote on matters coming before the Members, participate in the management of the Company, act as an agent of the Company, receive distributions from the Company or have any other rights in or with respect to the Membership Rights.

Pine Mount asserted as its third defense to the petition the failure of Pine Creek and its other members to comply with the procedural requirements of the Act and with the terms of the Operating Agreement, specifically Section 6.1.1.3, i.e., the breach of the prohibition against transfers that would result in the termination of Pine Creek under tax code 26 USC § 708 for tax purposes (which Pine Mount claimed occurred as a result of the September 1997 Madison Ventures’ transfer to Stephens, Inc.).

The pertinent subsections of 26 USC § 708 state:

(a) General rule. For purposes of this subchapter, an existing partnership shall be considered as continuing if it is not terminated. (b) Termination. (1) General rule. For purposes of subsection (a), a partnership shall be considered as terminated only if — . . . (B) within a 12-month period there is a sale or exchange of 50 percent or more of the total interest in partnership capital and profits.

The crux of Pine Mount’s argument in its third defense is that the Stephens to Stephens, Inc. August 1997 transfer of 37.5 percent interest combined with the Madison Ventures to Stephens, Inc. September 1997 transfer to produce transfers exceeding 50 percent within 12 months, which under § 708 terminated Pine Creek for tax purposes. Thus, Pine Mount argues, under the Operating Agreement the second transfer was not only invalid, but also precluded Stephens, Inc. from voting its pre-existing 37.5 percent in favor of the property sale. Since Stephens, Inc. did not have the two-thirds vote needed under the Operating Agreement to effectuate a sale of Pine Creek’s sole asset, Pine Mount concludes that the Act was not triggered so as restrict its remedy to a dissenters’ rights valuation proceeding.

This reasoning, also advanced by the dissent, hinges on the multi-tiered conclusion that there are no fact issues as to whether (1) the transfer of Madison Ventures’ interest to Stephens, Inc. was truly a transfer of dominion and control of Madison Ventures’ interest in Pine Creek, (2) the combination of the two transfers completely invalidated the ability of Stephens, Inc. (or for that matter John Stephens) to vote any interests whatsoever in favor of the sale of the property, and (3) the consent of Madison Ventures, John Stephens, and Stephens, Inc. to the sale of property must all be ignored. We hold that fact disputes exist with regard to these issues. As the failure of any one link in this chain would require a trial, summary judgment was inappropriate. Indeed, there are factual and legal issues as to whether the Operating Agreement was violated and therefore as to whether the Dissenters’ Rights Article was triggered. Summary judgment was accordingly inappropriate, and a finder of fact should be allowed to consider the matter in an evidentiary trial.

Specific examples of disputed issues include at least the following. First, to conclude that the property sale was not in accordance with the Operating Agreement, Pine Mount posits that the transfer of Madison Ventures’ 37.5 percent interest to Stephens, Inc. in September 1997 was a transfer that for tax purposes under 26 USC § 708 was a sale or exchange of more than 50 percent of interest in Pine Creek within 12 months (when combined with the August 1997 transfer of John Stephens’ 37.5 percent interest to Stephens, Inc.). Based on this conclusion, Pine Mount contends that the Madison Ventures’ transfer terminated Pine Creek, thus violating Section 6.1.1.3 of the Operating Agreement.

The flaw in this analysis is that “[t]o be recognized for tax purposes, a transfer of a partnership interest must vest dominion and control in the transferee.” Here, notwithstanding its transfer of interests, Madison Ventures retained (1) the right to receive any and all cash and other distributions of assets from Pine Creek, (2) the right to use such cash or distributions to pay debts owed to it by Stephens, Inc. or other debts of Pine Creek, (3) the right to prevent, by withholding consent in its sole and unfettered discretion, Stephens, Inc.’s sale or assignment of the 37.5 percent interest to another party, and (4) control over Stephens, Inc.’s voting rights with respect to the 153 acres. Thus, there is a question of fact as to whether a transfer, so structured, vested dominion and control in Stephens, Inc.

Even assuming this was not a disputed fact issue, a second issue is whether under the Operating Agreement, the transfer of Madison Ventures’ 37.5 percent interest to Stephens, Inc. completely invalidated Stephens, Inc.’s ability to vote its pre-existing 37.5 percent interest (received from John Stephens) that it held before the Madison Ventures’ transfer. Section 6.1.1.3 of the Operating Agreement appears to invalidate only those voting rights that were wrongfully transferred (i.e., that were transferred such that Pine Creek was terminated for tax purposes). This would pertain only to the second transfer — the Madison Ventures’ transfer — which (when combined with prior transfers) exceeded the 50 percent rule of § 708 of the tax code.

The importance of this conclusion is that despite the alleged invalidity of the Madison Ventures’ transfer, Stephens, Inc. retained the right to vote its pre-existing 37.5 percent interest. Since Madison Ventures also approved the sale of the 153 acres, then even if the transfer of Madison Ventures’ interest was invalid (and Madison Ventures thus retained its 37.5 percent interest), the votes in favor of the sale were still 75 percent — more than enough to approve the transfer even without Pine Mount’s votes. Indeed, even if Stephens, Inc.’s receipt of interests from John Stephens was somehow invalid, the fact that John Stephens himself approved the sale would mean that regardless of which of these three parties held jointly or individually the 75 percent in interests, the written approval of all three to the sale would meet the two-thirds requirement of the Operating Agreement in any case.

In light of these factual and legal issues, we reverse summary judgment so as to allow the trier of fact to determine the merits of the petition.

Judgment reversed. Ruffin, Barnes and Ellington, JJ., concur. Andrews, R J, Johnson, P. J, and Eldridge, J., dissent.

Andrews, Presiding Judge,

dissenting.

Because I believe the majority has totally ignored the plain wording of the controlling law and contract documents at issue here, as well as overemphasizing immaterial issues of fact which fly in the face of the wording of the documents, I respectfully dissent.

First, a number of facts in addition to those set out in the majority should be noted. It is not disputed that Browning dealt only with Wayne Mason, former Gwinnett County commissioner and principal of Madison Ventures, Ltd. during negotiations concerning the 153 acres. It is also not disputed that Mason brought in John D. Stephens, individual, as a third partner in the venture. The documents establishing Pine Creek, including the Operating Agreement, were prepared by Andersen, Davidson & Tate, appellate counsel for Pine Creek, on behalf of Madison Ventures and Stephens, individually, and reviewed by separate counsel for Pine Mount. At no point during Browning’s negotiations with Mason was John D. Stephens, Inc. mentioned.

On June 2, 1997, the Operating Agreement for Pine Creek was signed. The initial paragraph lists the parties as “JOHN D. STEPHENS, a resident of the State of Georgia (‘JDS’), MADISON VENTURES, LTD., a Georgia corporation (‘Madison’), and PINE MOUNT, L.L.C., a Georgia limited liability company (‘Pine Mount’).” The same three parties are listed as members in Paragraph 2.7 titled “Members” and the same three parties signed the agreement. There is no mention in the document of John D. Stephens, Inc. (Stephens, Inc.).

In its brief here, Pine Creek states that the trial court

correctly noted that any attempted transfer of an interest in the Company which would result in a termination of the Company under I.R.C. § 708 would be “deemed invalid, null and void, and of no force or effect” under Paragraph 6.1.1.3 of the Operating Agreement, and accordingly found that the September 12, 1997 Madison Ventures to Stephens, Inc. [tjransfer failed to transfer any interest in the Company to Stephens, Inc.

(Emphasis supplied.)

Nonetheless, the majority has found extensive factual issues regarding whether, in fact, Madison Ventures’ transfer to Stephens, Inc. was truly a transfer of dominion and control of Madison Ventures’ interest in Pine Creek. Such a conclusion ignores the documents which were, again, prepared by Andersen, Davidson & Tate for Pine Creek and Madison Ventures. The Transfer and Assignment of Limited Liability Company Interest, found unambiguous by the trial court, states that “Assignor [Madison Ventures] hereby sells, conveys, assigns, and transfers to Assignee [Stephens, Inc.] the Interest and all of Assignor’s right, title and interest in and to the Company [Pine Creek] in consideration for Assignee’s execution in favor of Assignor of a Promissory Note of even date herewith. . . .”

It has been repeatedly held that

[t]he construction of a contract is peculiarly well suited for disposition by summary judgment because, in the absence of an ambiguity in terms, it is a question of law for the court. An ambiguity exists only if after the application of the pertinent rules of interpretation, it remains uncertain which of two or more possible meanings the parties intended. “No construction is required or even permissible when the language employed by the parties in the contract is plain, unambiguous and capable of only one reasonable interpretation.”

(Footnotes omitted.) Tucker Materials v. DeVito Contracting &c., 245 Ga. App. 309, 310 (535 SE2d 858) (2000). See also Balata Dev. Corp. v. Reed, 249 Ga. App. 528, 529 (548 SE2d 668) (2001).

Considering the documents effecting this transfer from Madison Ventures to Stephens, Inc., without reference to any parol evidence regarding an intent contrary to that expressed in the documents, it is clear that the trial court correctly concluded that this transfer would violate § 708 and, thereby, the Operating Agreement. Evans v. Commr. of Internal Revenue, 54 TC 40, 50-51 (U. S. Tax Court 1970), aff’d, 447 F2d 547 (7th Cir. 1971); 26 CFR § 1.708-1 (b) (2).

The majority also ignores the argument actually made below by Pine Creek. As restated by the trial court, that argument was that even if there were a § 708 termination, the Operating Agreement would render the transfers null and void, such that (1) the interests would never be considered transferred; (2) there would not be a termination under § 708; and (3) there would not be a violation of the Operating Agreement because John D. Stephens signed the documents concerning the limited liability company action both in his individual capacity and as president of John D. Stephens, Inc. and Madison Ventures ratified the sale.

This circuitous argument was, I believe, correctly rejected by the trial court as ignoring the plain language of Section 6.1.3 regarding the consequences of an impermissible transfer, as agreed to by all parties to the Operating Agreement.

Therefore, I agree with the trial court that Stephens, Inc., as the person to whom Madison Ventures sought to transfer its 37.5 percent, lost its rights to participate in Pine Creek, at least as to this 37.5 percent. Since the sale to M. D. Hodges could not have been completed by Stephens, Inc. voting only its other 37.5 percent because, according to Section 5.1.3.1 of the Operating Agreement, the sale of substantially all of the assets of Pine Creek was required to be approved by “no less than two-thirds (2/3) of the Percentages then held by Members,” the limited liability company action was done in contravention of the Operating Agreement.

That, as concluded by the majority, had the improper transfers not occurred, Stephens individually (and/or Stephens, Inc.) along with Madison Ventures could have done what they did regarding the sale of the 153 acres without Pine Mount’s participation or knowledge obfuscates the real issue. That issue is, if the Operating Agreement were violated, all parties agreeing that the sale of the property cannot be undone, what is Pine Mount’s remedy? Is it restricted to the “nonjury equitable valuation proceeding” provided by OCGA § 14-11-1011 of the Dissenters’ Rights Article, or may it sue for breach of contract, fraud, and other remedies?

I agree with the trial court which concluded that Pine Mount was not, as argued by Pine Creek, restricted to the dissenters’ rights proceeding, but could pursue other remedies.

Pine Creek relies on Grace Bros., Ltd. v. Farley Indus., 264 Ga. 817 (450 SE2d 814) (1994), which dealt with dissenting shareholders’ rights in a corporate merger situation. That case, however, did not involve a situation where there was a violation of the articles of incorporation or bylaws or fraudulent and deceptive means used to obtain approval of the corporate action. As the Supreme Court noted, it was instead a “complaint about stock price,” as to which the statutory appraisal remedy is exclusive. Id. at 821. See also Matthews v. Tele-Systems, 240 Ga. App. 871, 873 (525 SE2d 413) (1999) (depletion of corporate assets through excessive salaries relates to value of shares to be determined in appraisal action); Lewis v. Turner Broadcasting System, 232 Ga. App. 831, 833 (3) (503 SE2d 81) (1998) (claims of violation of corporate bylaws not viable, statutory appraisal action exclusive remedy); Croxton v. MSC Holding, Inc., 227 Ga. App. 179, 182 (2) (489 SE2d 77) (1997) (shareholder’s complaint not essentially a “complaint about price” and he was not restricted to statutory appraisal proceeding).

Had the legislature intended that a member of a limited liability company be restricted to the dissenters’ rights procedure in the case of a violation of the operating agreement, it could have so specified. Instead, it designated the appraisal process for situations where no such violation or fraud had been shown and only value was at issue.

I am persuaded, as was the trial court, by Shidler v. All American Life &c. Corp., 775 F2d 917 (8th Cir. 1985), which considered the Iowa dissenting shareholders’ statute and concluded that the legislature had not intended, by that statute, to exclude other private remedies. As stated therein,

[t]he defendants argue first that statutory appraisal, [cit.], is the sole relief intended by the legislature for disappointed minority shareholders. However, the statute provides for appraisal as the exclusive remedy only where “the proposed corporate transaction [is] approved by the required vote.” [Cits.] ... If the transaction is unlawful [as the result of improper corporate action], appraisal cannot be the exclusive remedy.

Id. at 922 (I) (D).

If Pine Mount were restricted,- in this situation, to the dissenters’ rights valuation proceeding, as noted in Shidler, the statute would condone wrongdoing, and I will not presume the legislature intended that result. Therefore, I believe that the trial court properly granted Pine Mount summary judgment on its third defense and dismissed the petition of Pine Creek.

I am authorized to state that Presiding Judge Johnson and Judge Eldridge join in this dissent.

Decided November 30, 2001

Reconsideration denied December 14, 2001.

Andersen, Davidson & Tate, Gerald Davidson, Jr., Thomas T. Tate, Tanya A. Eades, Robert H. Hishon, for appellant.

Chamberlain, Hrdlicka, White, Williams & Martin, Eric C. White, James L. Paul, Matthew J. McCoyd, for appellee.

        Birnbrey, Minsk & Minsk v. Yirga, 244 Ga. App. 726 (535 SE2d 792) (2000).

       All parties agree that Hodges, a bona fide purchaser for value without notice, obtained legal title to the property. See Virginia Highland Civic Assn. v. Paces Properties, 250 Ga. App. 72, 74 (550 SE2d 128) (2001).

       If an entity does not meet the definition of “corporation” under 26 CFR § 301.7701-2, it may elect to be treated as a partnership for federal tax purposes. 26 CFR § 301.7701-3. There is no dispute that Pine Creek was treated as a partnership for federal tax purposes, making 26 USC § 708 applicable.

       Section 6.1 of the Operating Agreement provides that any person to whom membership rights are attempted to be transferred in violation of this section loses the right to “vote on matters coming before the Members, participate in the management of the Company, act as an agent of the Company, receive distributions ... or have any.other rights in or with respect to the Membership Rights.”

       Under Section 5.1.3.1 of the Operating Agreement, the sale of substantially all of the assets of Pine Creek was required to be approved by “no less than two-thirds (2/3) of the Percentages then held by Members.”

       OCGA § 14-11-1001 et seq.

        Pflugradt v. United States, 310 F2d 412, 416 (7th Cir. 1962).

       “Any Person to whom Membership Rights are attempted to be transferred in violation of this Section shall not be entitled to vote on matters coming before the Members, participate in the management of the Company, act as an agent of the Company, receive distributions from the Company or have any other rights in or with respect to the Membership Rights.” (Emphasis supplied.)

       Stephens repeatedly referred to Andersen, Davidson & Tate as “representing the deal.”

       That company’s shareholders were Stephens and his three sons.

       Such parol evidence may not, of course, be considered to alter the terms of a written document where the terms are unambiguous. OCGA § 13-2-2 (1). This parol evidence was specifically objected to below by Pine Mount.

       I would not decide whether the trial court correctly determined that Stephens, Inc. was precluded from voting its original 37.5 percent received from Stephens by its receipt of the second 37.5 percent in violation of § 708 because that decision of the trial court was not necessary to the decision rendered and was, therefore, obiter dicta. Davis v. State, 266 Ga. 212 (465 SE2d 438) (1996); Veal v. Barber, 197 Ga. 555, 560 (1) (30 SE2d 252) (1944); Peacock a Peacock, 196 Ga. 441, 449 (26 SE2d 608) (1943); Glisson v. Hosp. Auth. of Valdosta &c., 224 Ga. App. 649, 652 (481 SE2d 612) (1997).

       To the extent that Pine Creek argues here that Pine Mount should have sought to enjoin the limited liability company action, i.e., the sale to M. D. Hodges, the argument is factually inapposite because the sale was concealed from Pine Mount until the sale was consummated and, as acknowledged by Pine Creek’s brief, “Pine Mount could not legally have set aside the sale of the Property to Hodges, a bona fide purchaser for value, without notice of any conflicting interest in the property.”


source: Caselaw Access Project

author: Pope, Presiding Judge. Blackburn, Chief Judge,

license: Public Domain

text:
    A01A1363.
    RAPID GROUP, INC. v. YELLOW CAB OF COLUMBUS, INC.
    (557 SE2d 420)
   Pope, Presiding Judge.

In general, legal malpractice liability attaches when an attorney fails to apply well-settled legal principles or procedures. In this case, the attorney representing a taxicab company allegedly failed to assert the well-known independent contractor defense to a claim of respondeat superior for a cabdriver’s tort. But the malpractice defendants argued that it is also well settled that the independent contractor defense did not apply to the facts of the case. They relied on Yellow Cab of Chatham County v. Karwoski, 226 Ga. App. 63 (486 SE2d 39) (1997), which was decided three years after the alleged legal malpractice. Thus, one of the questions presented by this appeal is does Karwoski reiterate well-settled law or break new ground.

In 1992, Stephens, a driver for Yellow Cab of Columbus, Inc., had an accident in Columbus that injured Lester and Tina Howard. At the time of the accident, Stephens had a Columbus taxicab driver’s permit but not a Columbus taxicab business license. Stephens had a business relationship with Yellow Cab, described by Yellow Cab as one of dispatch service and independent contractor. The Howards sued Stephens in tort, and Yellow Cab under the doctrine of respondeat superior. Rapid Group, Inc. insured Yellow Cab, and it provided a defense using attorney Sidney Moore.

In 1994, during the litigation, Moore allegedly committed malpractice in several ways including failing to respond to discovery, which resulted in a default judgment. After a trial on damages, a judgment in the amount of $101,000 was entered against Yellow Cab. Yellow Cab sued Moore and Rapid Group for legal malpractice alleging in part that the default judgment precluded it from raising the defense that Stephens was an independent contractor. Moore and Rapid Group attempted to rely on Karwoski and argued that Stephens was Yellow Cab’s employee as a matter of law and therefore Yellow Cab would have been liable regardless of the default judgment.

But, because the decision in Karwoski was issued three years after the alleged malpractice occurred, the trial court did not charge Karwoski to the jury, did not allow the defendants to argue Karwoski, and would not grant a directed verdict and rule as a matter of law that Karwoski applied to the facts of this malpractice case. At the end of the trial, the jury ruled in favor of Yellow Cab and awarded damages and attorney fees totaling $244,431 for the malpractice. Rapid Group appeals.

1. In its first three enumerations, Rapid Group contends, in essence, that the trial court prevented it from fully asserting its defense that Yellow Cab employed the driver and therefore would have been liable as a matter of law in the tort action even if there had been no default judgment. Rapid Group based its defense on Karwoski, which suggests that the driver was Yellow Cab’s employee — not an independent contractor — as a matter of law, because he did not have a taxicab owner’s business license as required by an applicable Columbus municipal ordinance. See Karwoski, 226 Ga. App. at 67-69 (on motion for reconsideration). Rapid Group contends that Karwoski did not change the law, but simply articulated what had always been the law, and therefore, the trial court erred by not applying it to the case.

In numerous cases dating back to at least 1939, this Court has repeatedly held that, for the purposes of determining employer liability under the Georgia Workers’ Compensation Act, OCGA § 34-9-1 et seq., a taxicab company is estopped to deny that an affiliated driver is an employee (and claim that he is an independent contractor) when local ordinances either directly or indirectly prohibit the use of independent contractors, or the independent contractor himself is not fully and properly licensed and operating in compliance with the local ordinances. See Karwoski, 226 Ga. App. at 63, and cases cited therein; Aetna Cas. &c. Co. v. Prather, 59 Ga. App. 797 (1) (2 SE2d 115) (1939). For the purposes of this decision, the application of a local ordinance to determine employee/independent contractor status will be referred to as the local ordinance rule.

The issue in this case is whether it was well settled in 1994, the time of the alleged malpractice, that the same local ordinance rule applied in a tort case. This Court’s decision in Karwoski purports to hold that it does. See Karwoski, 226 Ga. App. at 67-69 (on motion for reconsideration). But there are four reasons for concluding that Karwoski represents a change in the law and not simply an articulation of what had always been the law.

First and foremost, the opinion in Karwoski itself reveals that application of the local ordinance test to tort cases was strongly debated and that the law had previously been unclear. Karwoski was a workers’ compensation case. The original opinion only addressed whether the local ordinance rule should apply to the.specific facts of the case. Id. at 63-65. On a motion for reconsideration, the Court went further. The taxicab company in Karwoski suggested that the original opinion was inconsistent with Smith v. Yellow Cab Co. of Chatham County, 223 Ga. App. 143 (476 SE2d 887) (1996). In that tort action, this Court refused to apply the local ordinance rule to tort actions and instead applied the well-known law that the question of whether one is an employee or an independent contractor is resolved by determining whether the employer retains the right to exercise control over the time, manner, and method of the work performed. Id. at 144.

In response to the motion for reconsideration, in a five-to-four decision, this Court overruled Smith and held that the local ordinance test applies to both tort and workers’ compensation actions. In so doing, the majority acknowledged that the case law had “become blurred and confiised” and that the cases “generally divide into two lines: those tort cases involving the doctrine of respondeat superior and those workers’ compensation cases involving coverage for injured drivers.” (Emphasis omitted.) Karwoski, 226 Ga. App. at 67. Furthermore, there was a pointed dissent to extension of the local ordinance rule to tort cases and to overruling Smith.

Thus, the decision itself makes manifest that the holding on the motion for reconsideration in Karwoski did not simply articulate well-established and unambiguous principles of law but rather extended the law. Moreover, one could argue that application of the local ordinance test to tort actions was unnecessary to the decision in Karwoski, a workers’ compensation case.

Second, the original basis for application of the local ordinance rule to workers’ compensation actions arose from the policy underlying the Workers’ Compensation Act. This Court first applied a predecessor of the local ordinance rule to a taxicab case in 1939 in Prather, 59 Ga. App. at 797 (1). There, the Court held that a taxicab company certified to act as such by the Georgia Public Service Commission was without authority to hire an independent contractor who had no such certificate and, therefore, any person hired would be considered an employee as a matter of law for the purposes of determining workers’ compensation liability. Id. The Court explained that the public policy emanating from the Workers’ Compensation Act dictated this result. It explained,

This is true because the law[, i.e., the Workers’ Compensation Act,] requires the carrier to insure against injury to its passengers, and makes it responsible for the fitness of the drivers of its vehicles, which duties it is against public policy to the State for the carrier to delegate to another over whom the [licensing entity] could have no jurisdiction.

Id.

Prather was directly followed in Diamond Cab Co. v. Adams, 91 Ga. App. 220 (85 SE2d 451) (1954), which in turn led to a line of workers’ compensation cases establishing what we now refer to as the local ordinance rule.

Third, no court has determined that the same policy should apply to the doctrine of respondeat superior. The only case we find partially relevant is West End Cab Co. v. Stovall, 98 Ga. App. 724 (106 SE2d 810) (1958). But that case is nonprecedential, and, although the opinion states that the taxicab driver could not be an independent contractor because he operated the taxicab under the cab company’s license and not his own, the court answered the question of whether the driver was an employee by considering whether the driver was under the company’s supervision and control. Id. at 729.

Fourth, precedent from this Court existing at the time of the alleged legal malpractice shows that the test in tort cases for determining employee/independent contractor status was the traditional control test. See, e.g., Brunson v. Valley Coaches, 173 Ga. App. 667, 668 (1) (327 SE2d 758) (1985) (“right to direct the time, the manner, the methods, and the means of the execution of the work”). See also Hand v. Checker Cab Co., 216 Ga. App. 116 (453 SE2d 138) (1995); Red Top Cab Co. v. Hyder, 130 Ga. App. 870 (204 SE2d 814) (1974) (company had no control over operation of cab); English v. Yellow Cab Co., 119 Ga. App. 828 (168 SE2d 920) (1969); Clark v. Atlanta Veterans Transp., 113 Ga. App. 531 (148 SE2d 921) (1966). Similarly, Supreme Court precedent applicable to both workers’ compensation actions and tort actions holds that the primary test for answering the employee/independent contractor question is whether the agreement between the parties gives the employer “the right to control the time, manner [,] and method of executing the work, as distinguished from the right merely to require certain definite results in conformity to the contract.” (Punctuation omitted.) Golosh v. Cherokee Cab Co., 226 Ga. 636, 637 (176 SE2d 925) (1970) (a workers’ compensation case). See also Yearwood v. Peabody, 45 Ga. App. 451 (164 SE 901) (1932) (a tort action; cited as support by the Supreme Court in Golosh).

Finally, Smith v. Yellow Cab Co., a case decided after the alleged malpractice in this case but before Karwoski, specifically held that the local ordinance test did not override the traditional control test. Smith, 223 Ga. App. at 143. Although Karwoski overturned the decision in Smith, Smith reflects the opinion of this Court, and of the author of the decision in Karwoski, at a point in time closer to the alleged legal malpractice in this case.

For the above reasons and because Karwoski was decided long after the alleged legal malpractice in this case, the trial court did not err in refusing to charge the jury on Karwoski or to allow Rapid Group to use the decision at trial. Nor did the court err by refusing to grant a directed verdict or judgment notwithstanding the verdict because a finding that Stephens was an employee of Yellow Cab was not demanded as a matter of fact and law, as it existed at the time. See St. Paul Mercury Ins. Co. v. Meeks, 270 Ga. 136, 137 (1) (508 SE2d 646) (1998).

2. Rapid Group also contends the trial court erred by failing to give a requested jury charge on the principle of intervening causation. Rapid Group asserts that it presented facts to support an argument that attorney Moore’s negligence was not the proximate cause of the default judgment because his client Yellow Cab and its local attorney committed intervening acts of negligence. Rapid Group bases its argument on facts that show that Yellow Cab and its attorney Nicholas Cook were involved in the attempt to respond to the discovery and that they may have contributed to the delay or misunderstandings that led to entry of the default judgment. Rapid Group claims that Yellow Cab and Cook failed to timely return the discovery responses to Moore and that at one point in time Moore thought Cook had responded to the discovery on his own, so he did not follow up.

However, Moore was attorney of record for Rapid Group the entire ten months that the discovery questions went unanswered; there is no evidence of an agreement that Cook was responsible for responding to the discovery; Moore knew that the trial court had ordered that a response be filed by a certain day or else Rapid Group’s pleadings would be struck; there is no evidence that Moore told his client that a motion to compel had been filed, although he told Cook; Moore never made any last minute attempts to obtain the discovery responses; and Moore allowed the deadline to pass without responding, requesting more time, or calling his client or Cook to obtain the responses immediately. Furthermore, Moore’s attempt to place the blame on Cook is based in part on events that occurred after the ten-day deadline had passed, and Moore even admitted that he should have known that Cook had not actually responded to discovery at that late date. Moore stated in a letter to the judge, “I do not fault Attorney Cook on this, as a careful reading of his cover letter should have informed me that no copy was sent to Plaintiff’s counsel.”

As a matter of well-known law, there can be no intervening cause when “the character of the intervening act claimed to break the connection between the original wrongful act and the subsequent injury was such that its probable or natural consequences could reasonably have been anticipated, apprehended, or foreseen by the original wrong-doer.” Southern R. Co. v. Webb, 116 Ga. 152, hn. 1 (42 SE 395) (1902). See also Cope v. Enterprise Rent-A-Car, 250 Ga. App. 648 (551 SE2d 841) (2001). Moore was attorney of record, and it was his responsibility to ensure that discovery responses were timely filed or to bring the matter to the attention of the court, if despite his best efforts, he could not obtain the necessary information from his client. Under the circumstances, Moore should have anticipated a default judgment given that he knew his client and Cook were not acting in a timely fashion. Therefore, although Cook may have been a joint cause of the failure to respond (a charge on joint responsibility was given), his actions could not eliminate Moore’s duty as counsel of record.

Meiners v. Fortson & White, 210 Ga. App. 612 (436 SE2d 780) (1993), relied upon by Rapid Group, is distinguishable. There, after the first attorneys had been fired, the second attorney failed to serve the defendant even though he had six months to do so and had been specifically informed by one of the first attorneys that the defendant had never been served. Id. at 613. This Court held that substitution of new counsel who negligently fails to cure the results of the first counsel’s negligence cuts off the first counsel’s liability. Id. Here, however, Moore was always attorney of record.

3. Our findings above support the conclusion that the trial court also did not err in denying a motion for new trial. The evidence supports the allegation of negligence in failing to respond to discovery thereby causing the loss of the independent contractor defense.

4. Rapid Group also contends that the trial court erred by submitting an attorney fee claim to the jury. Yellow Cab sought fees under OCGA § 13-6-11 for bad faith by Rapid Group in its contractual relations. Yellow Cab claimed that Rapid Group acted in bad faith defending the Howard lawsuit because attorney Moore’s conduct fell far below the standard of care for attorneys and because Rapid Group condoned Moore’s alleged minimalist approach to representing Yellow Cab. Yellow Cab does not claim in its appellate brief that it was entitled to fees for stubborn litigiousness or unnecessary trouble and expense in the malpractice litigation itself, and we agree that the existence of a bona fide controversy as shown above would preclude such a claim. See Lamb v. State Farm &c. Ins. Cos., 240 Ga. App. 363 (522 SE2d 573) (1999).

OCGA § 13-6-11 allows recovery of litigation expenses when a defendant has acted in bad faith. Where there is some evidence to support a finding of bad faith, an award of attorney fees on that basis must be affirmed. Crocker v. Stevens, 210 Ga. App. 231, 238 (8) (435 SE2d 690) (1993).

It is true that this issue is generally one for the jury. See, e.g., Dept. of Transp. v. Dalton Paving &c., 227 Ga. App. 207, 219 (6) (b) (489 SE2d 329) (1997). But bad faith cannot be prompted by an honest mistake as to one’s rights or duties but must result from some interested or sinister motive. Plemons v. Weaver, 243 Ga. App. 464 (533 SE2d 747) (2000). See also Glen Restaurant v. West, 173 Ga. App. 204, 205 (325 SE2d 781) (1984). “‘Bad faith’ is not simply bad judgment or negligence, but it imports a dishonest purpose or some moral obliquity, and implies conscious doing of wrong, and means breach of known duty through some motive of interest or ill will. [Cit.]” Vickers v. Motte, 109 Ga. App. 615, 619-620 (137 SE2d 77) (1964).

Yellow Cab presented evidence at trial that Moore was negligent in the following ways: (1) failing to advise his client, Yellow Cab, to demand that Rapid Group offer policy limits; (2) failing to serve discovery responses in a timely fashion; (3) failing to depose the plaintiffs or their physician; (4) consenting to striking his client’s answer after he was faced with the fact that the discovery had not been answered, even in response to an order of the court to do so, and (5) failing to inform his client of the trial date on damages and the importance of having a party representative at trial. In addition, Yellow Cab asserted that Moore violated several provisions of the Code of Professional Responsibility and Rules of Conduct of the State Bar of Georgia.

But Yellow Cab points to no testimony or other evidence in the record to show that Moore or Rapid Group acted dishonestly or that they were motivated by sinister motive or ill will. The cited testimony and evidence support only claims of negligence by Moore, which do not support an award of attorney fees based on bad faith. Michaels v. Gordon, 211 Ga. App. 470 (439 SE2d 722) (1993). “[Pjroof of mere negligence or bad judgment is not proof that [Moore] refused to fulfill [his] professional duties, out of some interested or sinister motive, or that [he] consciously acted for some dishonest or improper purpose.” Id. at 473 (2) (b).

Yellow Cab argues that because Rapid Group retained Moore on a flat fee of $6,000 per month no matter how much work he did, the jury was authorized to find that Rapid Group acted in bad faith by “condoning Moore’s ‘minimalist’ representation, that . . . fell far below the standard of care and amounted to a violation of [Rapid Group’s] duty of good faith to its insured.” First, we find this inference to be invalid on its face. Otherwise, we could also conclude that all salaried workers have an incentive to do as little as possible. In addition, regardless of Rapid Group’s business arrangement with Moore, Yellow Cab points to no evidence showing that this business relationship affected any of Moore’s litigation decisions. Although Moore breached a known duty, there is simply no evidence of ill will, personal gain, or other improper purpose.

Therefore, the trial court erred by failing to grant Rapid Group’s motion for directed verdict on the issue of attorney fees.

Judgment affirmed in part and reversed in part.

Mikell, J., concurs. Blackburn, C. J., concurs fully in Divisions 2, 3 and 4 and concurs specially as to the judgment only in Division 1.

Blackburn, Chief Judge,

concurring specially.

I fully concur in Divisions 2, 3, and 4 and the judgment. I do not concur in Division 1 and write specially. I cannot concur in the analysis contained in Division 1 or the holding and analysis of Yellow Cab of Chatham County v. Karwoski, 226 Ga. App. 63 (486 SE2d 39) (1997). The majority opinion’s characterization of Karwoski is a distortion of the opinion and represents an attempt to refight battles previously lost. As Karwoski clearly indicates, the case law in existence at the time the malpractice in this case occurred would have provided no recourse to a defense lawyer who failed to raise the defense of independent contractor. A simple reading of Karwoski will show that its holding was that the relationship between a cab company and its drivers is controlled by the applicable local ordinance, where such addresses this relationship, directly or indirectly. Where the local ordinance does not address this matter, one then looks to the general law. The cab company cases generally arose out of automobile accident cases, where a private citizen sought damages from the cab company, and the cabdriver might seek workers’ compensation benefits. In either case, cab companies took the position that the drivers were independent contractors. Judge Johnson addressed the unfairness to the general public created by this problem in his special concurrence in Loudermilk Enterprises v. Hurtig, 214 Ga. App. 746 (449 SE2d 141) (1994).

Decided November 29, 2001

Reconsideration denied December 14, 2001

David A. Webster, for appellant.

Taylor W. Jones & Associates, Taylor W. Jones, Richard E. Harris, for appellee.

Municipalities were given the authority to regulate taxicab companies which operated within their corporate limits by the legislature. Many municipalities adopted rules which precluded drivers of taxicabs from being independent contractors, while others did not.

Karwoski pointed out that numerous cases were decided by this court without regard to applicable local ordinances.. The majority here chooses an array of such cases to make its point. The dissent in Karwoski relied on two cases having no precedential value whatsoever. In Smith v. Yellow Cab Co. of Chatham County, 223 Ga. App. 143 (476 SE2d 887) (1996), the case which we overruled in Karwoski, the majority relied upon the single judge opinion in Loudermilk Enterprises, supra. We note that Loudermilk Enterprises, which involved a City of Atlanta taxicab company, did not address the application of the city ordinance. It may well have been that the ordinance was not raised, but we note that Worrell v. Yellow Cab Co., 146 Ga. App. 748 (247 SE2d 569) (1978), a case involving the Atlanta City Code, held that taxicabs shall not be operated by any person other than the owner or his employee. Under the Karwoski dissent the cabdriver could be an independent contractor for workers’ compensation purposes, but an employee for tort purposes. I would suggest that anyone wishing to understand Karwoski read the opinion and Judge Johnson’s special concurrence. In any event, Karwoski, as written, would provide no defense for the attorney in this case.

       An attorney is only negligent if he or she “wilfully or negligently fails to apply commonly known and accepted legal principles and procedures through ignorance of basic, well-established and unambiguous principles of law or through a failure to act reasonably to protect his client’s interests.” (Citation and punctuation omitted.) Jones, Day, Reavis & Pogue v. American Envirecycle, 217 Ga. App. 80, 83 (2) (456 SE2d 264) (1995).

       Although the exact manner of how the local ordinance functions in this way differs, see Karwoski, the differences are not relevant here.

       See Malone v. Gary, 98 Ga. App. 699 (106 SE2d 320) (1958); Atlanta Million Co-op. Cab Co. v. Wilson-Acomb, 108 Ga. App. 465 (133 SE2d 437) (1963); Worrell v. Yellow Cab Co., 146 Ga. App. 748 (247 SE2d 569) (1978); Univ. Cab v. Fagan, 150 Ga. App. 404 (258 SE2d 21) (1979), aff'd, 245 Ga. 469 (266 SE2d 798) (1980); Atlanta Checker Cab Co. v. Padgett, 154 Ga. App. 43 (267 SE2d 464) (1980).

       Evidence was presented during the trial to support Yellow Cab’s contention that Stephens was an independent contractor.


author: Ellington, Judge.

text:
    A01A1883.
    MALLON v. THE STATE.
    (557 SE2d 409)
   Ellington, Judge.

After a bench trial, Daniel William Mallon was convicted of battery, OCGA § 16-5-23.1 (a); aggravated assault, OCGA § 16-5-21 (a) (2); and terroristic threats, OCGA §. 16-11-37 (a). Following the denial of his motion for new trial, Mallon appeals, contending that the trial court erred in failing to ensure that he knowingly and voluntarily waived his right to a jury trial and admitted his guilt as to the battery and terroristic threats charges, that the trial court erred in admitting evidence of the victim’s out-of-court statements, that the evidence as to the aggravated assault charge was insufficient to convict, that his trial counsel provided inadequate representation, and that the sentence was excessive. We affirm the convictions and remand for a hearing on the ineffective assistance of counsel claim.

A Gwinnett County grand jury indicted Mallon on multiple counts arising out of two separate incidents of domestic violence. In the first incident, on August 1, 1999, Mallon and the victim left a bar together to return to their residence. The two argued in the car, and Mallon, who was driving, struck the victim with his hand and bit her on the arm, leaving visible marks. In the second incident, on December 27, 1999, the two argued at their residence, and Mallon repeatedly struck the victim with his fists, caused her head to strike a counter, and ripped off her nightclothes. The victim sustained two egg-sized lumps on her forehead and various other scrapes and bruises. Barely clothed, the victim fled to a neighbor’s house, yelling, “He’s going to kill me.” After police arrived at the couple’s residence, Mallon called from another location and threatened to kill the victim.

The trial court consolidated the two incidents for trial. Mallon requested a bench trial. He presented a defense that, in essence, admitted guilt on the battery charge, as to the first incident, but argued against the more serious charge of kidnapping with bodily injury. Similarly, as to the second incident, Mallon admitted guilt on charges of simple assault and terroristic threats, but argued against the more serious charges of aggravated assault. The trial court convicted Mallon of battery as to the first incident and aggravated assault and terroristic threats as to the second incident, based largely on Mallon’s admissions about the incidents. At sentencing, Mallon asked for leniency based on his diagnosed mental illness, his drug dependency, and his lack of any criminal history. The trial court sentenced Mallon to twenty years on the aggravated assault charge and five years probation on the terroristic threats charge to run consecutive, for a total of twenty-five years (fifteen years in prison followed by ten years probation), and twelve months on the battery charge, to rim concurrently with the other sentences.

Mallon’s trial counsel handled his motion for new trial, asserting the general grounds as to the aggravated assault charge only; the trial court decided the motion without a hearing. Mallon’s trial counsel filed a notice of appeal. New retained counsel represents Mallon on appeal and first entered his appearance by filing a motion to remand.

1. Mallon contends that his trial counsel’s conduct in requesting a bench trial and admitting some of the allegations in the indictments amounted to a de facto guilty plea which required the trial court to ensure that he knowingly and voluntarily waived the many rights inherent in his not guilty plea, including his right to a jury trial. Mallon argues that the trial court erred in failing to comply with Uniform Superior Court Rule 33 as required when a court accepts a guilty plea. Mallon contends his appeal should be remanded for an evidentiary hearing on the voluntariness of his “plea.” The record shows that Mallon entered pleas of not guilty to all charges and put the State to its proof. Mallon, through his trial counsel, cross-examined the State’s witnesses and put up evidence in his defense, including his own testimony. We will not blur the line between entering a guilty plea and admitting facts at trial. The trial court was not required to comply with the procedures for accepting a guilty plea unless and until Mallon, through his counsel, expressed an intention to formally enter a guilty plea. USCR 33. See Division 5, infra.

2. Mallon contends the trial court erred in admitting evidence of the victim’s out-of-court statements. Over objection, the investigating officer testified to the contents of the victim’s tape-recorded statement given the day after the August 1, 1999 incident, and the court received into evidence the victim’s written statement given the night of the December 27, 1999 incident. When considering an appeal from a nonjury trial, we presume that the trial court selected and considered only the legal evidence and will reverse the trial court only where there is no legal evidence to support the trial court’s ruling. In the Interest of C. G. B., 242 Ga. App. 705, 711 (4) (531 SE2d 107) (2000). Here, there was ample admissible evidence supporting the trial court’s determination. Thus, we find no reversible error.

3. Mallon contends the evidence as to the aggravated assault charge was insufficient to convict.

On appeal from a criminal conviction, the evidence must be construed in the light most favorable to the [factfinder’s] verdict, and the defendant no longer enjoys the presumption of innocence. An appellate court does not weigh the evidence or judge the credibility of the witnesses but only determines whether the evidence to convict is sufficient under the standard of Jackson v. Virginia, [443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979)].

Reeves v. State, 244 Ga. App. 15, 17 (1) (a) (534 SE2d 179) (2000). The trial court convicted Mallon of the count of the indictment charging him with assaulting the victim with “his hands, which, when used offensively against another person results in serious bodily injury, by striking said person in the head, thereby placing said person in reasonable apprehension of immediately receiving a violent injury.” See OCGA §§ 16-5-20 (a) (2); 16-5-21 (a) (2). While hands are not considered deadly weapons per se within the meaning of OCGA § 16-5-21 (a) (2), the factfinder may — and in this case, did — find them to be so depending on the circumstances surrounding their use, including the extent of the victim’s injuries. Dixon v. State, 268 Ga. 81, 82 (1) (485 SE2d 480) (1997); Gafford v. State, 240 Ga. App. 251, 252 (1) (523 SE2d 336) (1999). Furthermore, flight by a terrified victim can — and in this case, did — satisfy the element of reasonable apprehension of immediately receiving violent injury. Kenyada v. State, 239 Ga. App. 438, 439 (521 SE2d 408) (1999); Lewis v. State, 215 Ga. App. 161, 163 (2) (450 SE2d 448) (1994). The evidence was sufficient beyond a reasonable doubt to support the guilty verdict. Jackson v. Virginia, supra.

4. Mallon contends the sentence was excessive. The punishment of which Mallon complains does not exceed that which is authorized by law. OCGA §§ 16-5-21 (i); 16-5-23.1 (c), (f) (1); 16-11-37 (c); 17-10-3. “[B]ecause the sentence is within the applicable statutory limits we lack authority to modify it. Any question as to the excessiveness of a sentence, which in this case was within the legal limits, should be addressed to the appropriate sentence review panel.” (Citations and punctuation omitted.) Gafford v. State, 240 Ga. App. at 254 (3).

5. Mallon contends his trial counsel provided inadequate representation and that his appeal must be remanded for an evidentiary hearing on that claim. Mallon’s brief fails to specify counsel’s alleged deficiencies. We conclude, however, that his claim of ineffective assistance of trial counsel is one which “cannot be decided as a matter of law upon the existing record.” Gomillion v. State, 236 Ga. App. 14, 15 (1) (512 SE2d 640) (1999). See Division 1, supra. Furthermore, “the record supports appellate counsel’s contention that direct appeal was the first opportunity to raise [this] claim.” Id. See Smith v. State, 263 Ga. 224, 225 (3) (430 SE2d 579) (1993) (an ineffectiveness claim may be raised for the first time in a direct appeal if the direct appeal marks the first appearance of new counsel). Therefore, having entered judgment on the appeal as to the claims raised pursuant to the denial of the motion for new trial, we remand to the trial court solely for a determination of the ineffectiveness claim. If the trial court finds that Mallon did not receive effective assistance of counsel, a new trial is required. If the trial court finds that Mallon did have effective assistance, he shall have 30 days in which to initiate an appeal of the trial court’s ruling on the issue. Jackson v. State, 244 Ga. App. 477, 478 (2) (535 SE2d 818) (2000).

Decided November 28, 2001

Reconsideration denied December 14, 2001.

Thompson, O’Brien, Kemp & Nasuti, Scott L. Dix, John A. Pick-ens, for appellant.

Daniel J. Porter, District Attorney, Traci R. Soderberg, Assistant District Attorney, for appellee.

Judgment affirmed and case remanded with direction.

Johnson, P. J., and Ruffin, J., concur.

       OCGA § 16-5-21 (a) (2) provides: “A person, commits the offense of aggravated assault when he or she assaults [w]ith a deadly weapon or with any object, device, or instrument which, when used offensively against a person, is likely to or actually does result in serious bodily injury.”


author: Eldridge, Judge.

text:
    A01A1813.
    SMITH v. THE STATE.
    (557 SE2d 496)
   Eldridge, Judge.

A Sumter County jury found Latorris C. Smith guilty of aggravated assault and voluntary manslaughter for acts Smith perpetrated during an argument with victim James Clyde Neal, which acts resulted in Neal’s death from a gunshot wound to the head. Smith appeals and claims that three errors of law require reversal in the instant case and that his aggravated assault conviction should have merged with his voluntary manslaughter conviction for purposes of sentencing. Upon review, we find no merit to Smith’s enumerated errors, and we affirm.

1. Smith contends his character was improperly placed into evidence by an investigating officer’s testimony that he had seen Smith once at the Americus Police Department when Smith was under investigation.

The record shows that, upon objection to such testimony, Smith’s defense counsel asked the trial court to give a curative instruction: “Whatever instruction you can give the jury about the relevance of the testimony would be appreciated.” The trial court then complied, even to the extent of repeating before the jury in tandem with defense counsel the exact words counsel wanted the court to say. Following such instruction, defense counsel replied, “Thank you, Judge.” No motions, objections, or requests for further action were made.

Where the trial judge gives corrective instructions and thereafter counsel fails to request further instruction or renew his motion for mistrial, an enumeration addressed to such ground is waived. Accordingly, the issue raised in Smith’s first enumeration of error presents nothing for this Court to review.

2. We find no error in the trial court’s refusal to allow a defense witness to testify that the victim told him he had engaged in a fight using a razorblade box cutter. Such testimony was hearsay, and no showing of “particularized guarantees of trustworthiness” “coupled with circumstances which attribute verity” was made so as to introduce such testimony under the necessity exception to the hearsay rule.

Further, we reject Smith’s contention that such evidence of violent acts by the victim was not to be introduced for the truth of the matter asserted therein and thus was not hearsay. The truth of the matter asserted was the purpose for the evidence, i.e., to reinforce Smith’s justification defense based on “establish[ing] the existence of prior violent acts by competent evidence.” Smith’s reliance on the Supreme Court of Georgia case of Sturkey v. State is misplaced. Sturkey involved an oral threat by the victim issued against the defendant and communicated to the defendant by a third party prior to the incident in question. The truth of the matter asserted in the threat was not at issue, but simply that the threat was made and communicated to defendant Sturkey. That is not the scenario we have in this case which involves independent acts of violence by the victim toward others, the actual existence of which must be proved by competent evidence.

Finally, the trial court permitted nine prior acts of violence by the victim toward others to go before the jury, which included three other incidents wherein the victim allegedly attacked others with a razorblade box cutter. From our review of the record, we find it highly probable that the omission of the evidence about which Smith complains, evidence which was cumulative only, did not affect the verdict.

3. We also find no error in the trial court’s refusal to permit the Georgia Bureau of Investigation crime laboratory report on the victim’s blood tests to go out with the jury during deliberations. The lab report was tendered and admitted for testimonial purposes. Two crime lab witnesses identified the report and testified as to its contents, including that the victim’s blood contained cocaine metabolites and that the victim had a 0.08 blood alcohol content when he died. The report itself was simply cumulative of this testimony, and Smith fails to provide us with any rationale for admission of the report in light of the testimony thereon. There is no reversible error where the contents of a document are put into evidence through testimony but the document is not allowed.

Decided December 14, 2001.

Joseph A. Grimsley, for appellant.

Cecilia M. Cooper, District Attorney, Richard E. Nettum, Assistant District Attorney, for appellee.

4. Smith assigns error to the trial court’s failure at time of sentencing to merge his conviction for aggravated assault into his voluntary manslaughter conviction. We find no error.

Smith was indicted for assaulting the victim with a handgun, as well as for the murder of the victim. The evidence shows that, in the middle of an argument with the victim, Smith obtained a handgun, put it to the victim’s head, and then started to put it back in his pocket. As the argument continued, Smith stated that he “put the gun to [the victim’s] head again. I said, ‘Look, man, just leave me alone. That’s all I ask you. Just leave me alone.’ ” Smith then “pulled the gun back and put it back down like I was fixing to put it in my pocket so I could go on back to my room.” At that point, Smith stated that he saw the victim reach into his pocket and that he feared the victim had a knife. He stated, “ ‘This [man’s] fixing to kill me for real, and I ain’t fixing to die,’ so I just pulled the gun out and shot him in his head.”

Under these facts, we find the assault on the victim with a handgun was independent of the killing itself. Smith put the handgun to the victim’s head twice before finally “pull[ing] the gun out” and killing the victim. Accordingly, there was no merger of the offenses.

Judgment affirmed.

Andrews, P. J., and Miller, J., concur.

        Jackson v. State, 248 Ga. 480, 483 (2) (284 SE2d 267) (1981); Ward v. State, 234 Ga. App. 610, 612 (2) (507 SE2d 506) (1998).

        Turner v. State, 267 Ga. 149, 154-155 (476 SE2d 252) (1996).

        Shields v. State, 272 Ga. 32, 34 (3) (526 SE2d 845) (2000).

       271 Ga. 572, 573 (2) (522 SE2d 463) (1999).

        Holder v. State, 242 Ga. App. 479, 482 (529 SE2d 907) (2000).

        Gantt v. Bennett, 231 Ga. App. 238, 246 (10) (499 SE2d 75) (1998).

       See, e.g., Foster v. State, 264 Ga. 369 (1) (444 SE2d 296) (1994).


author: Barnes, Judge.

text:
    A01A2081.
    MOBLEY v. THE STATE.
    (557 SE2d 488)
   Barnes, Judge.

Lloyd Mobley appeals from his conviction of driving with a suspended license, contending the trial court erred in allowing the prosecution to go forward. Mobley asserts that the arresting officer failed to comply with the following requirement of OCGA § 40-5-121 (b) (1): “The charge of driving with a suspended or disqualified license shall not be made where the suspension is a result of a failure to respond under Code Section 40-5-56 or an insurance cancellation unless the arresting officer hás verified a service date and such date is placed on the uniform citation.” The record in this case shows that Mobley’s license was suspended under OCGA § 40-5-56 for failing to appear at a hearing for a traffic offense and that the officer arrested him for driving with a suspended license. Instead of issuing a citation to Mobley, however, the officer took him into custody and obtained an arrest warrant. Mobley was never given a uniform citation listing the service date nor a copy of his arrest warrant.

Decided December 14, 2001.

Robert L. Mack, Jr., for appellant.

Keith C. Martin, Solicitor-General, for appellee.

In State v. Brooks, 194 Ga. App. 465 (390 SE2d 673) (1990), we interpreted a broader predecessor to the current version of OCGA § 40-5-121 (b) (1) in a case in which the officer did not verify and place the service date on the uniform citation issued to the appellant. We held that “under the clear mandate of; . . the statute ... , no charge of driving with a suspended license could be made against appellant.” Id. at 466. As in Brooks, supra, “we may not sanction noncompliance [with the statute] because we perceive it to be unnecessary or cumbersome.” Id.

Judgment reversed.

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


text:
    A01A2198.
    THOMAS v. THE STATE.
    (557 SE2d 483)
   Eldridge, Judge.

A Fulton County jury found Scilentto Thomas guilty of aggravated assault and theft by taking.. These offenses arose when Thomas arranged to have two men beat an Anthony’s Pizza deliveryman about the head and shoulders with a wooden stick and a metal pipe so that Thomas could obtain an order of chicken wings and four large pizzas for free. He appeals, claiming that the trial court erred in permitting the introduction of similar transaction evidence; permitting the introduction of impermissible character evidence; permitting testimony in violation of reciprocal discovery provisions; and denying a motion for directed verdict upon the sufficiency of the evidence of armed robbery. Upon careful review, we affirm Thomas’ conviction.

1. We find merit in Thomas’ claim that the similar transaction was insufficiently similar to warrant admission into evidence.

Generally in a criminal trial, proof that the defendant committed a distinct, independent, and separate offense is highly and inherently prejudicial, irrelevant and inadmissible, even if it is a crime of the same sort for which the defendant is being tried, unless there is some logical connection between the independent act and the crime for which the defendant is being tried, from which it can be said that proof of one tends to establish the other. The prosecutor seeking to introduce a defendant’s independent offense must establish in a pre-trial hearing, among other things, the similarity between the independent act and the crime for which the defendant is being tried.

In this case, the prior act introduced at trial involved a recently committed (but unindicted) armed robbery wherein Thomas put a gun to a convenience store clerk’s head and demanded money; upon the clerk’s compliance, Thomas made off with $700. As it applies to the instant case, the State claimed that the prior act demonstrated a common “scheme or plan.” The State argued similarity between the armed robbery of the store clerk and the beating of the pizza man in that “[t]hey are similars in that the case of Scilentto Thomas these happened within a month and a half time frame. It was in the same general vicinity. . . . And, again, the third thing wherein it is similar is that it demonstrates his attempt to obtain money forcefully from people.” We cannot, however, fathom any similarity between the two acts so as to demonstrate a coherent “scheme or plan,” especially since — contrary to the State’s representation at the Uniform Superior Court Rule 31.3 (B) hearing — the instant act did not involve an “attempt to obtain money forcefully from people.” It is true that a prior act need not be identical in order to be admissible on the trial of a case. It also remains very true that the test of admissibility of evidence of other criminal acts by the defendant is not the number of similarities between the two incidents. But we do not abandon the principle that there must be some “logical connection” between the independent act and the charged offense so that proof of one tends to prove the other through a nexus other than the fact that both acts show defendant’s bad character.

In the current incident as contrasted with the prior act: there were two physical assailants, not one; a stick and pole were used, not a handgun; pizza was the motive, not money; an apartment was involved, not a business establishment; the victim was beaten, not threatened with a firearm; and, while clearly a party to the crime, Thomas did not commit the actual assault on the victim as he did in the prior act, but instead arranged/urged its commission by others so that he would not have to pay for his food. The only apparent similarities between the independent act and the charged offense were that both involved a “taking” and there was a general proximity in time and place; this is insufficient to establish a common “scheme or plan” to do an act. Since the State failed to demonstrate a logical connection between the prior act and the indicted offenses so as to show a common scheme or plan, the trial court erred in admitting the similar transaction evidence.

Nevertheless, “error alone is not automatically grounds for a new trial but is subject to scrutiny for harmless error.” The erroneous admission of similar transaction evidence “may be harmless if there is such overwhelming evidence of the defendant’s guilt that it is highly probable that the error did not contribute to the guilty verdict.”

In that regard, a witness at trial positively identified Thomas as the person who came to his apartment at the Charlestown Homes on the incident date to use the telephone and order pizza. The Anthony’s Pizza delivery ticket was introduced showing delivery to apartment 27-E at the Charlestown Homes, which apartment was unrented and supposed to be unoccupied at the time of the incident. The victim positively identified Thomas as the man who answered the door of apartment 27-E and took the pizza from him. Thomas then told the deliveryman to “come on in” while he got money to pay for the food. When the deliveryman did so, two accomplices came from behind the front door and beat the victim about the head and shoulders, one with a pipe and one with a wooden stick. The victim testified that when he fought back, one of the assailants looked at Thomas who was standing on the stairs and stated, “he’s fighting back.” After being hit several more times, the victim backed out of the apartment and got into his truck. He testified that before he left, he looked back at the apartment and Thomas “was coming, he came down, went through the hallway with the food still in his hand. . . . Kind of smirk, giggle on his face. Headed in towards the living room part.” One of the assailants, fóurteen-year-old Carlos Brown, pled guilty to the offense and positively identified Thomas as the person who planned the robbery of the pizza man; gave Brown the stick with which to hit the victim; and told Brown and the other assailant, Marcus Franklin, to hit the victim after Thomas got the pizza. No evidence was offered to rebut the State’s case.

“Given such unequivocal eyewitness identification, it is highly unlikely that the admission of the similar transaction evidence contributed to the verdict.” This is especially true since the similar transaction went more to the offense of armed robbery, for which offense the jury found Thomas not guilty. “Thus, this claim of error presents no basis for reversal.”

2. Next, Thomas contends that his character was impermissibly put into issue by the admission of evidence of a separate crime of “criminal trespass” when the manager of the Charlestown Homes testified that apartment 27-E was vacant on the incident date and that neither Thomas nor anyone else had authority to be in that apartment.

There is no record of any objection being made to such testimony. “Because [Thomas] made no. contemporaneous objection, he cannot now raise this error. The failure to object to the admission of evidence at trial constitutes a waiver of the right to raise the issue on appeal.”

Further, the testimony about which Thomas complains was part of the circumstances surrounding the commission of the charged offense. As such, it was admissible as part of the res gestae of the crime.

Finally, the apartment manager did not testify that Thomas or anybody else was in apartment 27-E; she testified only that the apartment was supposed to be vacant. She knew nothing about the incident and did not know Thomas. On its face, then, the apartment manager’s testimony did not “allege . . . that he committed the crime of criminal trespass,” as Thomas asserts before this Court. Accordingly, this enumeration of error has no factual basis.

3. Thomas contends that “the trial court erred by failing to grant appellant’s motion to exclude the defendant’s statement after the state violated their reciprocal discovery obligations by failing to turn over the statement until the day of trial.” What follows the enumerated error is a virtually unintelligible argument that incorporates Thomas’ objection to testimony from a similar transaction witness, Detective Strozier, because Strozier’s name was not served ten days prior to trial; Thomas’ claim that some of Strozier’s notes were not included in the supplemental police report served upon Thomas and thus discovery was violated; a Brady claim that the State withheld exculpatory evidence: “we believe [Strozier’s notes] contained crucial evidence that they’re [the State] not submitting in court as to the identity of the perpetrator in that crime [similar transaction] and things that led to the identity or identification of the perpetrator”; and a claim that the trial court erred in not striking Strozier’s testimony in its entirety for discovery violations.

However, nowhere in such argument does Thomas address any discovery violation involving a statement made by “defendant” to any person; nowhere does Thomas cite to any place in the record where a statement made by him was introduced into evidence; and nowhere does Thomas cite to a trial court’s ruling with regard to the exclusion of any statement made by him. In short, Thomas’ argument has nothing whatsoever to do with his error as enumerated. “Enumerations may not be enlarged by brief on appeal to cover issues not contained in the original enumeration.”

Further, we have reviewed the voluminous 51 pages of discovery served upon Thomas by the State, which included all police reports; supplemental police reports; inculpatory statements from nonwitnesses and accomplices; evidence property records; juvenile reports on nontestifying accomplices; a similar transaction notice with attached police reports; and supplemental similar transaction police reports. We find that the discovery served was more than sufficient to satisfy the requirements of OCGA § 17-16-4. In an apparent attempt not to “violate” discovery, it appears that more information than required by statute was supplied. Such excess, while unnecessary, certainly weakens considerably any defense claim that more should have been given or that the State withheld exculpatory information.

We also find as unmeritorious Thomas’ claim of a Brady violation. Nothing in Strozier’s testimony and the several similar transaction police reports that were served on Thomas provides any basis for a belief that Strozier’s notes would be other than inculpatory. And Thomas’ asserted, completely unsupported “belief” to the contrary is simply insufficient to show that the State withheld exculpatory evidence in violation of Brady. In fact, it was established through Thomas’ cross-examination that Strozier’s notes would show that the similar transaction victim easily identified Thomas as the perpetrator of the armed robbery because Thomas was a regular customer at the convenience store. The similar transaction victim testified at trial to the same fact. Thus, not only is this evidence clearly inculpatory, there is no Brady violation when disputed evidence is brought out at trial.

Decided December 14, 2001.

Alicia C. Head, for appellant.

Paul L. Howard, Jr., District Attorney, Bettieanne C. Hart, Assistant District Attorney, for appellee.

Finally, Thomas failed to request a continuance, an opportunity to review any of Detective Strozier’s notes, or any other form of relief other than to strike Strozier’s testimony in its entirety or, alternatively, for the court to grant a mistrial.

Before the harsh sanction of excluding evidence will be imposed by the trial court under OCGA § 17-16-6, the defendant must show both that he was prejudiced and that the state acted in bad faith. [Thomas] did not make either showing. Consequently, the trial court did not abuse its discretion, under OCGA § 17-16-6, when it admitted [Detective Strozier’s testimony] over defense counsel’s objection.

4. The jury acquitted Thomas of armed robbery under Count 1 of the indictment and, instead, found him guilty of the lesser included offense of theft by taking. Accordingly, any claim of error regarding the trial court’s failure to direct a verdict on armed robbery is moot.

Judgment affirmed.

Andrews, P. J., and Miller, J., concur.

       Thomas was indicted for armed robbery and found guilty of the lesser included offense of theft by taking.

       (Citations omitted.) Hudson v. State, 271 Ga. 477, 479 (2) (521 SE2d 810) (1999).

        Smith v. State, 264 Ga. 46 (2) (440 SE2d 188) (1994).

        Farley v. State, 265 Ga. 622, 624 (458 SE2d 643) (1995).

        Williams v. State, 261 Ga. 640 (409 SE2d 649) (1991).

       (Punctuation omitted.) Tanner v. State, 243 Ga. App. 640, 643 (2) (533 SE2d 794) (2000).

        Moore v. State, 242 Ga. App. 249, 250 (1) (a) (529 SE2d 381) (2000).

        Humphrey v. State, 249 Ga. App. 805, 807 (1) (549 SE2d 144) (2001).

       Id.

       (Punctuation omitted.) Priester v. State, 249 Ga. App. 594, 598 (3) (549 SE2d 429) (2001).

        Myrick v. State, 242 Ga. App. 892, 894 (531 SE2d 766) (2000).

        Brady v. Maryland, 373 U. S. 83 (83 SC 1194, 10 LE2d 215) (1963).

       (Punctuation omitted.) Gabbard v. State, 233 Ga. App. 122, 123 (2) (503 SE2d 347) (1998).

        Merritt v. State, 248 Ga. App. 709, 713 (548 SE2d 427) (2001).

        Davis v. State, 261 Ga. 382, 385 (8) (b) (405 SE2d 648) (1991).

       (Footnote omitted.) Romero v. State, 247 Ga. App. 724, 726 (545 SE2d 103) (2001).

        Moore v. State, 242 Ga. App. 208, 211 (2) (529 SE2d 210) (2000); Jennings v. State, 226 Ga. App. 461 (486 SE2d 693) (1997); Cornwell v. State, 193 Ga. App. 561 (1) (388 SE2d 353) (1989); Middlebrooks v. State, 191 Ga. App. 542, 543 (1) (382 SE2d 385) (1989).


text:
    A01A2350.
    In the Interest of A. D. L., a child.
    (557 SE2d 489)
   Eldridge, Judge.

Appellant, the biological father of A. D. L. Ill and the noncustodial parent, appeals the Chatham County Juvenile Court’s termination of his parental rights contending, among other things, that the trial court erred in failing to set forth explicit findings establishing parental misconduct or inability under OCGA § 15-11-94 (b). The termination petition, filed by the child’s biological mother from whom the appellant was divorced in June 1997, sought the termination of appellant’s parental rights for nonsupport and abandonment of the child for a period exceeding one year before the petition to terminate was filed. After its hearing, the trial court ordered the termination of the appellant’s parental rights, finding parental misconduct or inability for wanton and wilful nonsupport and as in the best interest of the child. OCGA § 15-11-94 (a), (b) (2).

Pertinently, the record shows that the parties were married in 1993. Their son, A. D. L., was born in 1995. The following year the couple separated, and divorce proceedings were instituted. On October 31, 1996, a trial judge of the Chatham County Superior Court issued a temporary order in the divorce action, among other things, ordering the appellant to pay $80 per week as child support starting October 27, 1996. When the final decree of divorce was entered in June 1997, the appellant was ordered to pay child support in the amount of $660 per month upon the finding that his gross annual income was $40,000. Thereafter, the superior court twice issued contempt orders against the appellant. The first of these cited the appellant for his failure to deliver a medical insurance policy for the benefit of the child, and the second such order, issued a month later, cited the appellant for his failure to pay court-ordered child support. Notwithstanding the foregoing, no evidence of record reflects the appellant’s payment of child support from early February 1997 through the termination hearing in August 1998.

On November 14,1997, the appellant was discharged in Chapter 7 bankruptcy without distribution of assets, and, at the time of the termination hearing, he owed in excess of $12,000 in child support. The appellant, nonetheless, did not appear at the termination hearing, because the space available, nonrevenue guest airline ticket he obtained to travel to the hearing was cancelled. Noting that the superior court had found that the appellant failed to appear at its May 1997 contempt hearing and at its final hearing on the appellant’s divorce two months later, at its termination hearing the juvenile court found that the appellant had “ample opportunity to make arrangements” to be present. It is also undisputed in the record that the appellant had not had contact of any sort with his son for more than 20 months before the termination hearing. Held:

1. Appellant’s claim that the juvenile court erred in refusing to consider evidence of his inability to pay child support is without merit. At its August 1998 termination hearing, without objection, the juvenile court properly ruled inadmissible a copy of a document purporting to be a discharge order of the U. S. Bankruptcy Court for the Middle District of Florida discharging the appellant in Chapter 7 bankruptcy as uncertified. OCGA § 24-7-24 (a); see also Venable v. Venable, 153 Ga. 689 (1) (112 SE 891) (1922) (documents in bankruptcy proceedings certified by the clerk of court as correct and complete admissible). Notwithstanding the foregoing and the appellant’s failure to appear at the termination hearing despite good notice thereof, the juvenile court gave the appellant leave through counsel to submit a post-hearing affidavit before issuing its termination order. See In the Interest of T. B. R, 224 Ga. App. 470, 478 (3) (480 SE2d 901) (1997) (notice of hearing under OCGA § 15-11-39.1 reasonably calculated to afford parties due process right of opportunity to be heard). This the appellant did, attaching duly certified copies of the bankruptcy court’s orders discharging him in bankruptcy on November 14, 1997, without distribution. As additional evidence in support of his alleged inability to pay, the appellant attached to his post-hearing affidavit two documents purporting to show that he had twice been evicted from rental properties he lived in the year before the termination hearing. There thus is no error for “failure to consider” the evidence supporting appellant’s claim of financial inability to pay court-ordered child support as here in issue.

We nonetheless conclude, as the juvenile court found, that the appellant failed to come forward with evidence showing his inability to pay court-ordered child support. Because the debtor’s estate in federal bankruptcy law is subject to extensive exemption to ensure debtors a “fresh start,” among other things, protecting their families from impoverishment, see 11 USC § 522 (b) (1), (d); In the Matter of Hahn, 5 Bankr. 242 (S.D. Iowa 1980), the appellant’s discharge in bankruptcy nearly a year before the termination was not probative of his inability to pay court-ordered child support; rather, it indicated the contrary.

Neither were the two documents on which the appellant relies to show that he was unable to pay his rent in the year before the termination hearing probative of more than the nonpayment of rent. Such documents were also inadmissible as hearsay, i.e., the first, as a copy of an additional uncertified order of the bankruptcy court granting landlord Flossie Clemmons relief from automatic stay for the purpose of evicting the appellant, Venable v. Venable, supra, and the second, as a copy of a document denominated “Five (5) Day Notice to Pay or Quit” for want of separate foundations duly authenticating each document and establishing status as a copy of an original writing or record made in the regular course of business. See OCGA § 24-5-26 (admission of a photostatic copy of a writing without accounting for the original admissible if the photostatic copy made in the regular course of business to preserve the writing); see also Suarez v. Suarez, 257 Ga. 102, 103 (2) (355 SE2d 649) (1987) (admissibility as business record conditioned upon authentication as such).

Juxtaposed against the absence of evidence in the record showing the appellant’s inability to pay child support is the undisputed finding of the superior court that the appellant’s annual gross income at the time of the final judgment and decree of divorce was $40,000. Nothing of record shows that the appellant sought a downward modification of the court-ordered child support calculated on the basis of such annual income. Accordingly, even had the juvenile court erred in not considering the appellant’s discharge in bankruptcy and his evictions (and we have held the contrary), any such error would have been harmless as above. See Tarleton v. Griffin Fed. Sav. Bank, 202 Ga. App. 454, 455 (2) (b) (415 SE2d 4) (1992) (“An appellant must show harm as well as error to prevail on appeal; error to be reversible must be harmful. [Cits.]”).

It must be remembered that termination for nonsupport means no payment of support in any amount and not a failure to pay all of a court-ordered support. Here, the father had other priorities as to who received money, which did not include even a little support for his child.

2. The trial court did not err in finding appellant’s parental rights lost because its order failed to explicitly find parental misconduct or inability upon further explicit findings by clear and convincing evidence that: (1) the child is deprived; (2) the lack of proper parental care or control is the cause of deprivation; (3) the cause of deprivation is likely to continue or will not likely be remedied; and (4) the continued deprivation is likely to cause serious physical, mental, emotional, or moral harm to the child. OCGA § 15-11-94 (b) (4) (A) (i)-(iv). OCGA § 15-11-94 (a) establishes two statutory criteria for the termination of the appellant’s parental rights. That statute provides:

In considering the termination of parental rights, the court shall first determine whether there is present clear and convincing evidence of parental misconduct or inability as provided in subsection (b) of this Code section. If there is clear and convincing evidence of such parental misconduct or inability, the court shall then consider whether termination of parental rights is in the best interest of the child, after considering the physical, mental, emotional, and moral condition and needs of the child who is the subject of the proceeding, including the need for a secure and stable home.

(Emphasis supplied.) Id. Further, “[t]he juvenile court is required to make explicit findings as to the existence of parental misconduct or inability as defined in OCGA § [15-11-94] (b).” In the Interest of G.K.J., 187 Ga. App. 443, 445 (3) (370 SE2d 490) (1988); Crook v. Ga. Dept. of Human Resources, 137 Ga. App. 817 (224 SE2d 806) (1976); Williams v. Dept. of Human Resources, 148 Ga. App. 219 (251 SE2d 134) (1978); Griffith v. Ga. Dept. of Human Resources, 159 Ga. App. 649 (284 SE2d 666) (1981); compare In the Interest of G. K. J., supra (“[T]here is no explicit statutory requirement for entering the specific findings of fact which support the juvenile court’s ultimate finding that, based upon its further consideration of the best interest of the child, the rights of a defaulting parent should be terminated.”).

However, inasmuch as OCGA § 15-11-94 (b) authorizes the termination of parental rights upon four mutually exclusive grounds as separated by semicolons and as to the third and fourth grounds, the word “or” as well, each ground thereof is sufficient to establish parental misconduct or inability within the meaning of OCGA § 15-11-94 (a) if explicitly found upon clear and convincing evidence. Because the meaning of this statute is plain, unambiguous, and leads to no absurd or impracticable consequence, we must construe it according to its terms and no further inquiry as to its interpretation is conducted. Diefenderfer v. Pierce, 260 Ga. 426, 427 (396 SE2d 227) (1990); see Chives v. State, 214 Ga. App. 786, 787 (449 SE2d 152) (1994). Thus, the juvenile court here did not err for explicitly finding wanton and wilful nonsupport under OCGA § 15-11-94 (b) (2) without further finding parental misconduct and inability under OCGA § 15-11-94 (b) (4) (A) (i)-(iv).

It remains to determine the sufficiency of the evidence supporting the juvenile court’s determination that the appellant’s parental rights in A. D. L. here were lost. In this regard, there is no evidence of record reflecting the appellant’s payment of child support from early February 1997 through its termination hearing in August 1998, a period of 19 months. The appellant has not come forward with evidence showing that he lacked an ability to pay any child support, and there is evidence that the appellant had no contact with his son for more than 20 months prior to the termination hearing. Under these circumstances, the juvenile court’s finding that the appellant wantonly and wilfully failed to pay any court-ordered child support for a period of 12 months or more, OCGA § 15-11-94 (b) (2), showed parental misconduct or inability by clear and convincing evidence. The juvenile court’s further finding that the termination of the appellant’s parental rights was in the best interest of A. D. L. was likewise supported by clear and convincing evidence. ‘“[The] same factors which show the existence of parental misconduct or inability can also support a finding that the termination of parental rights of the defaulting parent would be in the child’s best interest.’ (Citations and punctuation omitted.) In the Interest of J. S., 232 Ga. App. 876, 881 (1) (502 SE2d 788) (1998).” In the Interest of N. Y., 246 Ga. App. 723, 726 (542 SE2d 137) (2000). Further, although by his affidavit submitted after the termination hearing, the appellant indicates his desire to be a nurturing parent and states that he needs to be “there to help [A. D. L.] grow to be a man[,]” “a child’s future must rest on more than positive promises which are contrary to negative past fact. [Cit.]” (Punctuation omitted.) In the Interest of D. I. W., 215 Ga. App. 644, 646 (1) (451 SE2d 804) (1994). Accordingly, the juvenile court’s judgment that appellant’s parental rights to A. D. L. were lost was proper. OCGA § 15-11-94 (a), (b) (2).

3. We need not address the appellant’s remaining claims of error in that he fails to support these by citation of authority or argument supported by reference to the record or transcript. Court of Appeals Rule 27 (c) (2), (3).

Judgment affirmed.

Andrews, P. J, and Miller, J., concur.

Decided December 14, 2001.

William G. Maston, for appellant.

Adam P. Cerbone, Lawrence E. Madison, for appellee.

       “[T]he Federal exemption scheme reflects a Federal interest in seeing that a debtor who petitions the Bankruptcy Court for relief comes out with adequate possessions to begin a fresh start.” (Emphasis supplied.) In the Matter of Upright, 1 Bankr. 694, 701 (N.D. N.Y. 1979). Accord In re Parrish, 19 Bankr. 331, 334 (D. Colo. 1982).

       There are five basic purposes for exemption laws: 1. To provide a debtor enough money to survive. 2. To protect his dignity and his cultural and religious identity.

       The requirement for explicit findings may not be satisfied by a dry recitation of the OCGA § 15-11-94 (b) findings. McCary v. Dept. of Human Resources, 151 Ga. App. 181, 183 (2) (259 SE2d 181) (1979). “Findings of fact and conclusions of law are mandatory under OCGA § 9-11-52 (a). The trial judge is to . . . state not only the end result of that inquiry but the process by which it was reached.” (Citations omitted.) In the Interest of J. B., 241 Ga. App. 679, 680 (1) (527 SE2d 275) (1999). This is essential so that on review the higher standard of evidence applicable can be demonstrated. See Greene County v. North Shore Resort &c., 238 Ga. App. 236, 240 (2) (517 SE2d 553) (1999) (purpose of findings of fact threefold: (1) to aid the trial, judge’s process of adjudication; (2) for purposes of res judicata and estoppel by judgment; and (3) as an aid upon appellate review).

       “[E]ntirely unlike the juvenile court’s [consideration] of parental [misconduct] or inability which is narrowly limited to the objective grounds enumerated in OCGA § [15-11-94 (b) (4) (A)], the inquiry into the best interest of the child is necessarily a broader and somewhat more subjective one . . . not. . . amenable to appellate review other than for a manifest abuse of discretion.” In the Interest of G. K. J., supra at 445 (3).

      . To afford a means of financial rehabilitation. 4. To protect the family unit from impoverishment. 5. To spread the burden of the debtor’s support from society to his creditors. [Cits.]

        In the Matter of Hahn, 5 Bankr. 242, 244 (S.D. Iowa 1980). In this regard, “debts for alimony or maintenance or support of wife or child are not dischargeable in bankruptcy.” (Punctuation omitted; emphasis in original.) McLure v. McLure, 163 Ga. App. 469, 470 (294 SE2d 693) (1982).