author: Smith, Judge. McMurray, Presiding Judge,

text:
    A94A1977.
    In the Interest of S. B. H., a child.
    (456 SE2d 620)
   Smith, Judge.

The father of S. B. H., a two-year-old child, appeals from the order of the juvenile court terminating his parental rights. OCGA § 15-11-80 et seq. The mother’s rights were also terminated, but she does not join in this appeal.

Appellant, who is incarcerated, shows, among other things, that he has never been previously convicted of a crime; that he has never received a disciplinary report; that he is considered a minimum security prisoner; that during his incarceration he has worked toward an associate’s degree in business and is due to graduate from Massey Business College in December 1994; that appellant has two other children from a previous marriage with whom he has a normal parent-child relationship; and that upon his release appellant has arranged to live with his sister, then lease a house and begin to build back his business.

“Before considering whether to enter an order terminating parental rights, the court must first determine whether there exists ‘clear and convincing evidence of parental misconduct or inability. . . .’ OCGA § 15-11-81 (a). To reach this determination, the court must find the child is deprived within the meaning of OCGA § 15-11-2 (8) due to a lack of proper parental care or control by the parent in question, that this state of affairs is likely to continue or is not likely to be remedied, and that such deprivation will or is likely to cause the child serious physical, mental, emotional, or moral harm. OCGA § 15-11-81 (b) (4) (A). If the court makes this preliminary determination based on clear and convincing evidence, termination of parental rights is authorized if the court likewise finds such action will best serve the child’s interest and needs, ‘including the need for a secure and stable home.’ OCGA § 15-11-81 (a). As an alternative, the court may conclude that the child’s interest and needs will be best served by disposition under OCGA § 15-11-34. OCGA § 15-11-81 (c).” In the Interest of E. B., 215 Ga. App. 326 (450 SE2d 341) (1994).

The juvenile court concluded that “the evidence is clear and convincing that there has been parental misconduct or inability authorizing a termination of parental rights” as outlined under OCGA § 15-11-81 (b) (4) (A) (i-iv). Appellant essentially argues that the numerous positive factors offered for the court’s consideration preclude such a conclusion. We disagree.

The juvenile court found: that “the parents have abandoned the child”; “that since the child was placed in the custody of [the local Department of Family and Children Services the child’s] parents have not provided any financial, moral, physical or emotional support”; that, although incarcerated, appellant had “substantial abilities to make and have contact with the child, [and] has totally and completely failed to do so for a period of approximately two (2) years, or for the entire life of said child,” despite making weekly contact with other family members; that appellant disposed of substantial assets while reserving none “for the care, protection or benefit of this child”; that appellant, despite his financial position, allowed the child to be maintained “solely at the expense of the State”; that no effort was made to send cards on birthdays and holidays; that appellant’s crimes constitute “acts of moral turpitude [creating] a serious doubt as to the moral fitness of [appellant] to ever adequately parent this child”; that appellant’s tentative parole date “is currently fixed for August, 1998,” and; that the child has no awareness of appellant as a parental figure. (Emphasis in original.)

Appellant’s efforts to make the best of his situation and to better himself while in prison are certainly laudable, but that was not the deciding question before the juvenile court. The record shows by clear and convincing evidence that, despite appellant’s efforts toward personal betterment and future success, the restrictions upon his freedom to act due to his incarceration are not in themselves sufficient to explain, justify, or in any way excuse his total lack of effort to contact or provide parental support of any kind for S. B. H. during the child’s entire life. See OCGA § 15-11-81 (b) (4) (C) (i-ii).

The juvenile court was authorized under the facts to consider termination by clear and convincing evidence, and those facts likewise support the court’s conclusion that termination was in the child’s best interest. OCGA § 15-11-81 (a), (b) (4) (A) (i-iv).

Judgment affirmed.

Beasley, C. J., Birdsong, P. J., Pope, P. J., Andrews, Johnson, Blackburn and Ruffin, JJ., concur. McMurray, P. J., dissents.

McMurray, Presiding Judge,

dissenting.

“ ‘ “Clear and convincing” is a more stringent standard than “preponderating” and requires a greater quantum and a high quality of proof in [the proponent’s] favor. (Cit.)’ Barber v. Perdue, 194 Ga. App. 287, 289 (390 SE2d 234) (1989). Accord Clarke v. Cotton, 263 Ga. 861, 862, n. 1 (440 SE2d 165) (1994).” In re Estate of Burton, 265 Ga. 122 (453 SE2d 16) (1995). As my view of the quality of the evidence (largely disputed) adduced in the case sub judice differs from that of my colleagues in the majority, I respectfully dissent from the judgment affirming the order of the Clayton County Juvenile Court terminating the parental rights of the natural father in his two-year-old child, S. B. H. It is my view that, no rational trier of fact could find by clear and convincing evidence that the father has lost all parental rights to S. B. H. Also, I believe the juvenile court erred in failing to consider whether continued temporary custody of S. B. H. in foster care would be an appropriate remedy for the father’s temporary inability to care for the infant.

The termination petition, filed on January 18, 1994, alleges the natural mother of S. B. H. had abandoned the infant and the mother’s whereabouts were unknown; that the natural father’s last known address was the Scott Correctional Institute in Hardwick, Georgia; that while the “natural mother was married to the legal father at the time of said child’s birth . . . , the natural father did not provide support... or medical care,” either during the pregnancy or during hospitalization; that the father has had no contact with the child since the child was two months old, which was insufficient to establish any familial bond between himself and the child; and that the father has made no attempt to contact or support the child since that time. The mother did not appear at the hearing. The father appeared, represented by court-appointed counsel.

The evidence adduced before the juvenile court showed the following: S. B. H. was born on April 17, 1992. S. B. H. has been in foster care since the age of three months. S. B. H.’s mother has failed to overcome alcohol and drug addictions, and failed to meet the goals of a family reunification plan formulated with the Clayton County Department of Family & Children Services. The father was married to the mother at the time of S. B. H.’s birth but has since sought a divorce. He has been incarcerated since before the birth of S. B. H. For the past 18 months, he has been at the Scott Correctional Institute in Hardwick, Georgia, after pleading guilty to a drug possession charge and to two counts of enticement of a minor (not S. B. H.) for indecent purposes. For these offenses, he received a ten-year sentence, to serve eight years. The natural mother brought S. B. H. to visit him twice in April 1992, but since that time she has abandoned the child. When she attempted to leave the three-month-old S. B. H. in the care of the paternal grandmother, the grandmother protested, claiming that she was too ill at the time to care for the infant. Instead, the grandmother telephoned 911, thus initiating S. B. H.’s being placed in emergency foster care. Temporary custody of S. B. H. was granted to the Clayton County Department of Family & Children Services which placed the infant with a foster mother. By court order dated January 19,1994, temporary custody was extended for an additional two years.

S. B. H. has been in the foster care of the foster mother since “July of 1992.” The foster mother affirmed that there had been “[no] attempt to contact [the foster mother] by [the father] directly[, . . . specifically,] no telephone, no letters, no cards[.]” The foster mother acknowledged that the paternal grandmother sought and exercised visitation with S. B. H. The foster mother would like to adopt S. B. H. if that were possible. The foster mother never attempted to contact the father and did not know whether he had access to her telephone “number, or [her] addressf.]” The foster mother testified that as a result of her experience, she was aware that a natural parent could communicate with a child in foster care via the caseworker from the Department of Family & Children Services, without needing to know the foster parent’s address or telephone number. The paternal grandmother once gave S. B. H. a doll and offered an Easter blanket, but the foster mother “didn’t go to [the paternal grandmother’s] over the Easter holidays.”

Heather Payne of the Clayton County Department of Family & Children Services has been the caseworker assigned to S. B. H. since December 1992. After the natural mother participated in the formulation of a reunification plan, “she contacted the agency once, requesting to voluntarily surrender her rights for SBH, but she did not follow through with that scheduled appointment.” Ms. Payne “[has] not [personally] observed the child [in foster care]. The foster parents live out of county, and [the Clayton County Department of Family and Children Services has] what is called . . . courtesy supervision through that county, and they send . . . correspondence indicating how the placement is.” Ms. Payne has never spoken with the father, explaining that “when someone’s incarcerated in an area that is that far from [our agency], that we go through . . . correspondence.” She has never attempted to formulate a family unification plan for the father, opining in a report to the juvenile court that his “incarceration [is a barrier] to compliance.” In that same report, Ms. Payne indicates that, among the paternal relatives who could be contacted, “no one in the family would be willing [or physically able] to care for S. B. H.” She acknowledged receiving a letter from the father in December 1993 in which he indicated that “he was aware that the custody was being reviewed for SBH, and that he was in agreement that it be extended for two years.” According to Ms. Payne, “when we received the letter, we were beginning ... to pursue the termination of parental rights. The letter [she] sent in response to [the father’s letter] was, . . . notifying him of our intent [to terminate his parental rights].” Ms. Payne was aware that the father has two children from his previous marriage, but had never spoken with either of them and was unaware that a son was then 20 years old.

At the time of the hearing, the natural father was 44 years old. After his 1988 divorce from his first wife, the father lived with the natural mother of S. B. H. for two years before they married. The natural mother is 19 years his junior. While she was pregnant with S. B. H., the father was jailed on the charges of enticement of a minor for immoral purposes and drug possession. The enticement charges involved photographs taken by him of his then girl friend, along with the 13-year-old girl friend of his 16-year-old son, naked in a jacuzzi tub. Neither certified copies of the guilty pleas nor the photographs themselves were introduced in evidence at the termination proceeding.

The father has completed almost two years of the eight-year prison portion of his sentence. During his incarceration, he has pursued an associate’s degree in business administration through Massey Business College, and has been a “model prisoner” who has acquired no disciplinary reports. He is applying for statewide trustee status, pursuant to which he would be permitted to leave prison and visit family on his holidays. Before his incarceration, he had been successfully self-employed: He was a commercial landlord, owning two small shopping centers, and owned and operated his own business for eighteen years. In 1988, he had an income of more than $140,000. The two shopping centers were subsequently sold “[before] the child was under the custody of DFACS[.]” All of his money “was spent on lawyers,” while the proceeds of the sales of the shopping centers were turned over to his ex-wife, who held “a hundred thousand dollar alimony judgment.” Upon his anticipated release from prison, the father planned to stay with his sister in Jonesboro, Georgia, and start anew in his former carpet business. However, he could not offer with reasonable certainty any date of imminent or eventual parole, other than the end of his eight years, which had been calculated as August 1998. When asked why he had not been in contact with his child, he replied: “I have not had that luxury. They have not provided me with any address, any phone number, um, even on visitation that my mom’s, um, despite my recommendation to bring [S. B. H.] down there [to Hardwick, Georgia], has not been available. Either by the foster parents or DFACS.” He conceded he “[never sent] a card to [his] mama’s house ... to give ... to SBH[, . . . explaining:] because you know, the age of two years old. . . .” He affirmed that, but for his incarceration, he would “be with [S. B. H., . . . and would support S. B. H. . . . one] hundred percent.” He “[asked] for some kind of extension, so [he] can have the opportunity to try to get out [on parole and] straighten [his] life out.” Although the paternal grandmother has never petitioned for custody of S. B. H., she felt she was capable of caring for the child, “if [she] had a little help.” She “mentioned [to the DFACS caseworker] that [the father] would love to see the baby.” She receives photographs of S. B. H. from the foster mother and “[gives] the photographs to [the father].”

The juvenile court determined that S. B. H. was deprived and that the parents had abandoned the child. Specifically, the court found that during the two-year period the father has been incarcerated, he failed completely to make any effort to contact the child despite having weekly contact with his own mother, who is accorded visitation of S. B. H. by the foster parents. Furthermore, the father made no effort to provide material support despite having “disposed of substantial assets with a value estimated to be well in excess of ONE HUNDRED THOUSAND DOLLARS ($100,000.00) . . . , none of which were made available for the care, protection or benefit of this child[,]” leaving the State to maintain the child in a foster home. Moreover, the juvenile court determined that he failed to send the child any sort of card, or gift on holidays and the child’s birthday. In his sole enumeration, the natural father challenges the sufficiency of the evidence to terminate his parental rights.

1. “ ‘ “In order to find an abandonment, there must be sufficient [clear and convincing] evidence of an actual desertion, accompanied by an intention to sever entirely, as far as possible to do so, the parental relation, throw off all obligations growing out of the same, and forego all parental duties and claims.” ’ Sims v. Sims, 171 Ga. App. 99, 100 (318 SE2d 805) (1984); In re J. C. P., 167 Ga. App. 572, 573 (307 SE2d 1) (1983).” In re B. D. C., 256 Ga. 511, 512 (350 SE2d 444). “[T]he facts in an abandonment case must be construed in the parent’s favor and against the abandonment, Meyers v. State, 124 Ga. App. 146, 148 (183 SE2d 42) (1971)[.]” Thrasher v. Glynn County Dept. of Family &c. Sucs., 162 Ga. App. 702 (293 SE2d 6). Due process of law requires that before parental rights may be terminated predicated upon an alleged abandonment of parental responsibilities for failure to provide support for the child, clear and convincing evidence must show that such failure to provide support was wilful or otherwise without justifiable cause. Thorne v. Padgett, 259 Ga. 650, 651 (386 SE2d 155) (interpreting former OCGA § 19-8-6 (b)).

In the case sub judice, the evidence tending to support the determination of the juvenile court that the father has abandoned S. B. H. is the undisputed circumstance that he has not made any effort to contact the two-year-old S. B. H. directly while the child has been in foster care and also the undisputed fact that he has not contributed financially to the child’s support. This circumstantial evidence of “an actual desertion, accompanied by an intention to sever . . . the parental relation” must be juxtaposed with the equally undisputed circumstance that defendant has been incarcerated since before the birth of S. B. H. and no longer is gainfully employed. He was never informed of any address for the foster mother. Moreover, there is no evidence the caseworker ever informed him she would forward his communications to the child or to the foster family. The father’s stated intent was to rebuild his life with S. B. H. upon his release from prison, where he has been a model inmate. Other unrefuted evidence showed that the father wrote to the clerk of the juvenile court to “contest the petition to terminate [his] parental rights.” Both the father and the paternal grandmother testified that she was the vehicle by which he sought to maintain some connection (as opposed to direct contact) with his infant child while he was in prison. The paternal grandmother testified without contradiction that he would always ask her about S. B. H. and wanted her to bring him pictures of the child. On his behalf, the paternal grandmother inquired of the foster mother whether the foster mother would take S. B. H. to Scott Correctional Institute but was informed by the foster mother that “unless they could go down there, too, and [supervise the] visit, . . . they wouldn’t go.”

“Clear and convincing” evidence has been articulated in part as: “ ‘Evidence that, when weighed against evidence in opposition, will produce in the mind of the trier of fact a firm conviction as to each essential element of the claim and a high probability as to the correctness of the conclusion.’ ” Clarke v. Cotton, 263 Ga. 861, 863 (440 SE2d 165) (Jackson, Judge, concurring). “[T]he appropriate standard of appellate review in a case of this sort is whether after reviewing the evidence in the light most favorable to the appellee, any rational trier of fact could have found by clear and convincing evidence that the natural parent’s rights to custody were lost. Sims v. Sims, [171 Ga. App. 99, 100 (318 SE2d 805)], citing Blackburn v. Blackburn, 249 Ga. [689, 692 (292 SE2d 821)].” In re B. D. C., 256 Ga. 511, 512, supra. The reviewing court is compelled to defer to the lower court in the area of factfinding and should affirm unless the appellate standard of review is not met. In the Interest of L. F., 203 Ga. App. 522, 523 (417 SE2d 344). In the case sub judice, given the uncontradicted and unrefuted explanations offered in mitigation of the undisputed fact that the father has not communicated directly with his two-year-old child and has not contributed financially to the child’s support while he was incarcerated, I find “no showing of an actual desertion, nor of any intention to sever entirely the parental relation on the part of [the natural father].” Sims v. Sims, 171 Ga. App. 99, 101, supra. See also Griffith v. Brooks, 193 Ga. App. 762, 765 (1), 766 (389 SE2d 246). Consequently, the termination of the father’s parental rights cannot be sustained on the ground that he has abandoned S. B. H. within the meaning of OCGA §§ 15-11-2 (8) (C) and 15-11-81 (b) (3).

2. It is a “constitutional requirement that a natural parent’s rights in his child may not be terminated absent a showing, by clear and convincing evidence, of his unfitness.” Thorne v. Padgett, 259 Ga. 650, 651, supra. “ ‘OCGA § 15-11-81 (a) provides a two-step procedure to be followed in considering the termination of parental rights. First, the court shall determine whether there is present clear and convincing evidence of parental misconduct or inability as provided by OCGA § 15-11-81 (b). Secondly, “(i)f 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, . . .” OCGA § 15-11-81 (a).’ In the Interest of A. T., 187 Ga. App. 299, 301 (2) (370 SE2d 48).” In the Interest of J. M. K., 189 Ga. App. 140, 141 (375 SE2d 131). “[Parental] misconduct or inability may be found if, inter alia, the child is found to be a deprived child as defined in OCGA § 15-11-2 [(8)]; this deprivation results from a lack of proper parental care or control; the lack of care or control is likely to continue or will not likely be remedied; and this continued deprivation will or is likely to cause serious physical, mental, emotional, or moral harm to the child. OCGA § 15-11-81 (b) (4) (A). A finding of unfitness must center on the parent alone, and must be based on clear and convincing evidence of present unfitness, not merely upon evidence of past unfitness. In the Interest of H. L. T., 164 Ga. App. 517, 520 (298 SE2d 33) (1982).” In the Interest of J. L. M., 204 Ga. App. 46 (1), 47 (418 SE2d 415).

In the case sub judice, the juvenile court determined that S. B. H. was deprived within the meaning of OCGA § 15-11-2 (8); that the lack of parental care or control is the cause; that such cause of deprivation is likely to continue or will not be remedied were the child returned to one of the parents; and that continued deprivation is likely to cause serious physical, mental, emotional or moral harm to the child. In addition to finding that S. B. H. was deprived due to the failure of the father to support his child financially, the juvenile court found that the criminal charges to which the father pled guilty were “acts of moral turpitude [creating] a serious doubt as to the moral fitness of [the natural father] to ever adequately parent this child.” (Emphasis in original.) The father contends the evidence is insufficient to support these conclusions of the juvenile court.

The juvenile court made no finding that the father’s failure to support S. B. H. was wilful or was unjustified, despite his testimony attempting to explain his situation. To the extent that any assets he held, or the proceeds thereof, were subject to execution of a judgment lien in favor of his ex-spouse, the voluntary transfer of assets in satisfaction of that judgment, standing alone, would not be a wilful or unjustified failure to provide support within the meaning of OCGA § 15-11-2 (8) (A) and Thorne v. Padgett, 259 Ga. 650, 651, supra. As to the juvenile court’s finding of moral unfitness based upon the father’s convictions for prior acts of enticing a minor for indecent purposes, I note that unfitness must be based on present circumstances. “ ‘(E)vidence of past unfitness, standing alone, is insufficient to terminate the rights of a parent in his natural child; clear and convincing evidence of present unfitness is required.’ Blackburn v. Blackburn, supra at 692; Wright v. Hanson, 248 Ga. 523 (2) (283 SE2d 882) (1981).” (Emphasis in original.) In re J. C. P., 167 Ga. App. 572, 574 (307 SE2d 1). Imprisonment alone does not automatically authorize a termination of parental rights premised upon parental unfitness; there must be circumstances in aggravation. In the Interest of L. F., 203 Ga. App. 522, supra; In the Interest of S. K. L., 199 Ga. App. 731, 733 (405 SE2d 903); In the Interest of H. L. T., 164 Ga. App. 517, 519, supra. See also In the Interest of K. M. H, 209 Ga. App. 194, 196 (433 SE2d 117).

In the case sub judice, the father’s inability to provide financial support or any parental care and control stems directly from his imprisonment. His convictions are based upon prior acts which, while involving female nudity, were not acts of sexual or physical abuse directed at S. B. H. Compare In the Interest of G. L. H, 209 Ga. App. 146, 148 (433 SE2d 357), where “the father had touched G. L. H.’s vagina . . . [and] engaged in parental misconduct and physical abuse of J. D. H. . . .” These offenses also are unrelated to any deprivation of S. B. H. due to the absence of the natural mother. Compare In the Interest of J. L. M., 204 Ga. App. 46 (1), 48, supra, where the “appellant [natural father] violently murdered the children’s mother and another person within the children’s hearing and then' left the children alone with the bodies for six hours. . . .” The record in the case sub judice shows only the fact of incarceration based on past acts and the present inability to provide support and parental care and control as evidence of parental unfitness. However, all things remaining equal, that inability amounting to unfitness is temporary and must end no later than August 1998, when his incarceration will terminate without any early release or parole as a model prisoner. I am “ ‘aware of the fact that the [juvenile] court has a great deal of discretion in these cases and its judgment will ordinarily not be disturbed absent a manifest abuse of this discretion. “However, the evidence must be enough to show that the deprivation found will be likely to continue and likely to cause serious harm to the child.” (Cit.)’ In the Interest of S. M., 169 Ga. App. 364, 366 (312 SE2d 829) (1983).” In re N. F. R., 179 Ga. App. 346, 348 (2) (346 SE2d 121). “In view of the above noted factors, the [juvenile] court’s order [terminating the father’s parental rights in S. B. H. should be] vacated and the case . . . remanded for reconsideration [of whether his failure to support S. B. H. is wilful or unjustified]. In the event the [juvenile] court determines upon reconsideration of [all the pertinent] evidence that the child’s needs may adequately be met by [the extension] of temporary custody [in the Clayton County Department of Family & Children Services and of foster care, to which the father already has consented], as opposed to complete severance of all parental rights, [it is noted] that such a disposition is expressly authorized by OCGA § 15-11-[81 (c) and § 15-11-34 (a) (2)].” Jones v. Dept. of Human Resources, 168 Ga. App. 915, 916 (310 SE2d 753).

Decided March 8, 1995

Reconsideration denied March 28, 1995

Randall L. Keen, for appellant.

Michael J. Bowers, Attorney General, Teresa E. Lazzaroni, Assistant Attorney General, Foster & Foster, John A. Kimbell, Tarey B. Schell, for appellee.

       It appears that appellant did not “abandon” his child in the legal sense, because there is not sufficient evidence that he intended that result. See Thrasher v. Glynn County Dept. of Family &c. Sucs., 162 Ga. App. 702 (293 SE2d 6) (1982) (“In order to find an abandonment, there must be sufficient evidence of an actual desertion, accompanied by an intention to sever entirely, so far as possible to do so, the parental relation, throw off all obligations growing out of the same, and forego all parental duties and claims. [Cit.]”) This distinction makes little difference from the child’s perspective, since appellant has made no effort to meet S. B. H.’s needs (including prenatal care) to the extent it was within his power to do. Given this, and the fact that the juvenile court did not base its authority to terminate on an “abandonment” under OCGA § 15-11-81 (b) (3), there can be little doubt as to what the juvenile court meant by its finding that appellant “abandoned” S. B. H. Viewed in its proper context, the court’s finding is supported by the record.

       Appellant pled guilty to, among other things, two counts of enticing a child for indecent purposes. According to appellant’s own testimony at the termination hearing, he took nude pictures of S. B. H.’s mother and his 16-year-old son’s 13-year-old girl friend together in a jacuzzi. Moreover, the photographs discovered by police were not the product of a single, ill-considered episode, but were taken over a two-week period.

       “Divorce judgments [for permanent alimony payable in stated monthly installments] are an exception to the rule [of OCGA § 9-12-80] that all the property of the defendant is bound from the date of the judgment.” Cale v. Hale, 157 Ga. App. 412, 413 (277 SE2d 770).


source: Caselaw Access Project

author: Smith, Judge.

license: Public Domain

text:
    A94A1981.
    GIBSON v. PREFERRED RISK MUTUAL INSURANCE COMPANY.
    (456 SE2d 248)
   Smith, Judge.

Appellant Mary Y. Gibson was involved in a traffic collision. Several persons have claimed that they suffered personal injury resulting from the incident and that Gibson was responsible for those injuries. At the time of the incident, Gibson held an automobile liability policy from appellee Preferred Risk Mutual Insurance Company providing bodily injury coverage to the extent of $25,000 per person and $50,000 per occurrence. It is undisputed that the insurer settled and paid damages in good faith to two claimants in the amount of $25,000 each, thereby exhausting the policy’s limit of liability per occurrence.

Much later, the insurer filed this declaratory judgment action on the issue of whether it is obligated to continue defending Gibson in a separate action filed by Rhonda and Wayne Holder arising out of the same incident. Gibson answered and counterclaimed against the insurer, alleging legal malpractice for the failure of insurer’s counsel to file a counterclaim against Rhonda Holder. The trial court granted the insurer’s motion for summary judgment, and Gibson appeals.

The relevant policy provision reads as follows: “We will pay damages for bodily injury or property damage for which any insured becomes legally responsible because of an auto accident. ... We will settle or defend, as we consider appropriate, any claim or suit asking for these damages. In addition to our limit of liability, we will pay all defense costs we incur. Our duty to settle or defend ends when our limit of liability for this coverage has been exhausted. We have no duty to defend any suit or settle any claim for bodily injury or property damages not covered under this policy.” (Punctuation omitted.)

Gibson contends the insurer has a continuing duty to defend her in the case brought by the Holders for two reasons. First, she notes that the insurer exhausted its policy limits by settling two claims in May 1990, yet undertook to represent her interests by filing an answer on her behalf in the action brought by the Holders on May 7, 1992. Second, Gibson argues that in making that initial filing on her behalf, the attorney hired by the insurer to defend her was guilty of malpractice because he did not then file a counterclaim based on the theory that plaintiff Rhonda Holder had the “last clear chance” to avoid the collision.

The insurer received a letter from Gibson’s son on March 10, 1992. Gibson’s son explained he was acting as his elderly mother’s “intermediary.” The letter informed the insurer that enclosed was a complaint that had been filed against his mother for the accident occurring two years earlier, and that “[w]e are turning this over to you for your handling.”

The insurer’s initial response, dated March 13, 1992, reveals no apparent awareness of the exhaustion of policy coverage caused almost two years earlier by the insurer’s settlement with other claimants. Its response disclosed only that the Holders’ claims far exceeded the policy limits; that there was no coverage for the Holders’ prayers for punitive damages; that an agreement had been reached with plaintiffs’ counsel that an answer and appearance were not immediately due; that settlement negotiations were being undertaken; and that “in the event that we are unable to affect [sic] a settlement and it does become necessary to actively defend this case, we will immediately advise you [of] the name of the counsel we have retained on your behalf to defend this matter.”

The parties do not appear to dispute that because the policy’s limits were exhausted almost two years prior to the filing of the Holders’ complaint, the insurer was under no pre-existing contractual duty to defend Gibson in the action brought by the Holders. Moreover, the insurer could not be heard to argue that it was unaware of the fact that it had already exhausted the policy limits for the collision. Nevertheless, the insurer’s response of March 13, 1992, affirmatively reflects that settlement negotiations were already underway and that Preferred Risk intended to undertake her initial defense, if necessary.

On April 29, 1992, the insurer provided Gibson with a “notice of reservation of rights.” An answer was filed on May 7, 1992, under that reservation of rights. The present action for declaratory relief was filed May 14, 1992.

This case is unusual because Preferred Risk knew or should have known that it had already satisfied its policy obligations before Gibson turned the Holders’ complaint over to it. Therefore it could be argued that this case should be considered under the rule that “if a liability insurer, with knowledge of a ground of forfeiture or noncoverage under the policy, assumes and conducts the defense of an action brought against the insured, without disclaiming liability and giving notice of its reservation of rights, it is thereafter precluded in an action upon the policy from setting up such ground of forfeiture or non-coverage.” Jones v. Ga. Cas. &c. Co., 89 Ga. App. 181, 185 (78 SE2d 861) (1953). Gibson, however, is not arguing that Preferred Risk should provide coverage to her, only a defense. We therefore need not engage in a theoretical discussion of when a “defense” to the Holders’ action was initiated and whether that defense was initiated before or after the reservation of rights notice was provided to Gibson. See generally Prescott’s Altama Datsun v. Monarch Ins. Co. of Ohio, 170 Ga. App. 545, 548-551 (317 SE2d 845) (1984) (McMurray, C. J., dissenting).

Gibson instead argues only that she is entitled to a defense under Atkinson v. Atkinson, 254 Ga. 70, 75-76 (6) (326 SE2d 206) (1985), a case distinguishable from the present case in that the policy limits in Atkinson were paid to the wrong party. It would therefore appear that, unlike the present case, the insurer in Atkinson never satisfied its contractual duty to defend its insured in the first instance. However, we apply the reasoning of Atkinson to this case as standing for the proposition that an insurer may not under the circumstances presented “abandon the defense of the claim in mid-course to the prejudice of the insured.” Atkinson, supra at 76. This reading is entirely consistent with the rule regarding gratuitous undertakings generally. See, e.g., Stelts v. Epperson, 201 Ga. App. 405, 407 (411 SE2d 281) (1991). (“[0]ne who undertakes to do an act or perform a service for another has the duty to exercise care, and is liable for injury resulting from his failure to do so, even though his undertaking is purely voluntary or even though it was completely gratuitous, and he was not under any obligation to do such act or perform such service, or there was no consideration for the promise or undertaking sufficient to support an action ex contractu based thereon. [Cit.]”) The question before us is therefore whether Gibson has shown any prejudice to her defense that would result directly from Preferred Risk’s withdrawal at this point in the litigation.

On this point, Gibson argues only that her defense was prejudiced by the failure of the insurer’s attorney to file a compulsory counterclaim against the Holders. At most, however, Gibson is alleging only that the insurer’s attorney caused her to lose a right of action she may have once had; it does not follow that her defense to the Holders' claims has been in any way prejudiced. Any harm allegedly done to Gibson’s interests has already accrued, and there is nothing further the insurer can do to lessen that alleged harm other than compensate Gibson for the loss. This does not serve as a basis for imposing upon Preferred Risk a continuing duty to defend the remaining claims against Gibson.

Decided March 8, 1995

Reconsideration denied March 28, 1995

Wilson, Strickland & Benson, Warner R. Wilson, Jr., Carolyn V. Jordan, Mary M. Brockington, Sara L. Doyle, for appellant.

Zimmerman & Associates, Keith F. Brandon, Croy, Harris & Hammond, A. Cullen Hammond, Malcolm S. Murray & Associates, William D. Strickland, for appellee.

It is true that an insurer may be estopped to deny coverage once it has undertaken to defend a claim and performs that undertaking negligently. See Jones v. Ga. Cas. &c. Co., supra. The continuing duty to defend in such a case, however, is incidental to the fact that the insurer is estopped to deny coverage. No issue of coverage is presented in this case. Therefore, in the absence of any suggestion that the insurer can better defend Gibson than an attorney independently retained by her, we cannot say the trial court erred in granting Preferred Risk’s motion for summary judgment.

Judgment affirmed.

McMurray, P. J., and Pope, P. J., concur.

       The Holders were parties in the action below, but do not join in this appeal.


author: Ruffin, Judge.

text:
    A94A1997.
    HOLMES v. THE STATE.
    (456 SE2d 236)
   Ruffin, Judge.

Melvin Holmes was convicted of rape and aggravated sodomy. He appeals his conviction following the denial of his motion for a new trial.

The record shows that one night Holmes agreed to take the victim to the grocery store to get milk for her grandchild. Instead of going to the store, he drove behind a building in a deserted office park and ordered her out of the car. The victim testified that Holmes then punched her, knocked her to the ground and began to forcibly undress her. Holmes told the victim he would kill her if she screamed and forcibly performed oral sex on her. He then grabbed her wrists, threatened to kill her if she attempted to run away and raped her twice. Holmes testified that the sexual acts were consensual and denied forcing the victim to engage in oral sex or raping her.

Decided February 28, 1995

Reconsideration denied March 28, 1995.

John D. J. Bloodworth, for appellant.

Daniel J. Porter, District Attorney, R. Keith Miles, Assistant District Attorney, for appellee.

1. Holmes contends the trial court erred in allowing testimony about two similar transactions because the State did not meet the burden of showing that the relevance of the testimony outweighed its prejudicial effect. We disagree.

“In order for evidence of similar transactions to be admissible, it must be shown that the defendant was the perpetrator of the other transactions, and there must be some evidence to establish between the independent crime and the crime on trial such similarity to and logical connection with each other so that proof of the independent crime tends to establish, by evidence of identity, bent of mind, or intent, the commission of the crime ... on trial. This exception to the general rule that evidence of independent crimes is inadmissible has been most liberally extended in the area of sexual offenses, but even where sexual offenses are involved, the evidence should not be admitted unless the prejudice it creates is outweighed by its relevancy.” (Citations and punctuation omitted.) Payne v. State, 207 Ga. App. 312, 315 (2) (428 SE2d 103) (1993).

Like the victim in the instant case, both of the victims in the similar transactions testified that Holmes offered them a ride in his car for a specific purpose, and in each instance Holmes deviated from that purpose. Similarly, Holmes drove both of the other victims to a secluded area at night and became extremely violent when the women resisted his sexual advances. He forcibly performed oral sex on all three victims and raped one of the similar transaction victims as he did the victim here. Finally, as in the instant case, Holmes testified that his sexual involvement with one of the similar transaction victims was consensual and denied any involvement with the other victim. Thus, the evidence showed that the two other offenses were sufficiently similar with such a logical connection to the instant crime so as to render them admissible. Accordingly, “it is clear in this case that the relevancy of this extraneous evidence outweighed [any] prejudice.” Payne, supra at 315-316.

2. Holmes asserts 11 other enumerations of error by the trial court. However, none of these enumerations are supported by argument or citation of authority, and consequently they are deemed abandoned. Mack v. State, 212 Ga. App. 187 (441 SE2d 503) (1994); Court of Appeals Rule 15 (c) (2) (now Rule 27 (c) (2)).

Judgment affirmed.

Birdsong, P. J., and Blackburn, J., concur.


author: Johnson, Judge.

text:
    A94A1999.
    DYER v. SURRATT.
    (456 SE2d 510)
   Johnson, Judge.

Hal Dyer and Michelle Surratt, formerly Michelle Dyer, were married in 1988. They separated in November 1990, when Surratt moved from Georgia to North Carolina with their two minor daughters. Dyer and Surratt were divorced by a final decree entered in the Superior Court of Gwinnett County, Georgia, on December 3, 1991. The divorce settlement agreement granted Surratt custody of the two children and Dyer specified visitation privileges. Approximately 17 months after the divorce, Dyer filed a petition for contempt in Gwinnett County Superior Court, alleging Surratt violated the visitation provisions of the divorce agreement. Dyer amended the petition, requesting not only that Surratt be found in contempt of court, but also that the court modify the divorce decree by awarding custody of the children to him. Surratt moved to dismiss the petition as amended. The trial court granted the motion, dismissing the petition due to lack of subject matter jurisdiction. We granted Dyer’s application for discretionary review.

Dyer claims the , court erred in finding it lacked jurisdiction to hear his petition for contempt. At the outset, we note “[t]here is no magic in the nomenclature of a pleading; it is construed to serve the best interests of justice and judged by its substance rather than by its name. [Cit.]” Proctor Square, Ltd. v. Proctor Square Apartments, 211 Ga. App. 74, 75 (438 SE2d 144) (1993). Construing Dyer’s amended petition by its substance rather than by its name, we conclude it is not merely a contempt petition, but is also an action to modify custody because it plainly asks the court to change custody of the children from Surratt to him due to a material change of circumstances affecting the children’s welfare. Consequently, the issue before us is whether the trial court erred in ruling it lacked subject matter jurisdiction to decide this interstate custody matter.

Dyer is correct in asserting that the superior courts of Georgia generally have subject matter jurisdiction over child custody cases. See Art. VI, Sec. IV, Par. I, Ga. Const. 1983; OCGA §§ 15-6-8 and 19-9-1. Nevertheless, even if a court of this state issued the original custody decree, whether that court “has jurisdiction in an interstate custody matter is determined under the provisions of the [Uniform Child Custody Jurisdiction Act]. . . . OCGA § 19-9-43 (a) (UCCJA § 3) establishes the four bases for jurisdiction of child custody proceedings, whether initially or by modification: (1) the state is or has been within six months the child’s home state, as defined by the Act; (2) the child and at least one custody contestant have a significant connection with the state; (3) the child is physically present and has been abandoned or is in need of emergency protection from actual or threatened abuse or neglect; or (4) no other state has or accepts jurisdiction, and it is in the child’s best interest for this state’s courts to take jurisdiction.” (Citations, punctuation and emphasis omitted.) Williams v. Goss, 211 Ga. App. 195, 197 (438 SE2d 670) (1993). In the instant case, none of these four bases of jurisdiction apply to this state. The record reveals that North Carolina is the children’s home state because they have lived there with Surratt for more than six consecutive months immediately prior to Dyer’s filing of this change of custody action. See OCGA § 19-9-42 (5). Moreover, there is no evidence in the record that the children have any significant connection with Georgia, that the children are physically present in this state and have been abandoned or are in need of emergency protection, or that North Carolina refuses jurisdiction and it is in the children’s best interests for Georgia to take jurisdiction.

Decided March 15, 1995

Reconsideration denied March 28, 1995

Donn M. Peevy, for appellant.

Margaret G. Washburn, for appellee.

“Ordinarily, jurisdiction over child custody cases is in the county of residence of the legal custodian, and one of the purposes of the . . . UCCJA is to assure that litigation concerning the custody of a child takes place ordinarily in the state with which the child and his family have the closest connection and where significant evidence concerning his care, protection, training, and personal relationships is most readily available and also to assure that the courts of this state decline the exercise of jurisdiction when the child and his family have a closer connection with another state.” (Citations and punctuation omitted.) Lightfoot v. Lightfoot, 210 Ga. App. 400, 402 (2) (436 SE2d 700) (1993). Because Surratt and the children have the closest connection with their home state of North Carolina and none of the UCCJA bases for jurisdiction apply to Georgia, the trial court correctly declined to exercise jurisdiction over Dyer’s request for modification of custody. See Kemp v. Sharp, 261 Ga. 600, 601 (2) (409 SE2d 204) (1991); Douse v. Douse, 157 Ga. App. 524, 526 (277 SE2d 807) (1981).

Judgment affirmed.

Beasley, C. J., and Andrews, J., concur.


author: McMurray, Presiding Judge.

text:
    A94A2018.
    CHEN v. PROFIT SHARING PLAN OF DR. DONALD H. BOHNE, DDS, P. A.
    (456 SE2d 237)
   McMurray, Presiding Judge.

Richard Chen brought an action against the Profit Sharing Plan of Dr. Donald H. Bohne, DDS, P. A., by and through Dr. Donald H. Bohne, DDS, as its trustee (“the Profit Sharing Plan”), seeking (in relevant part) damages stemming from the Profit Sharing Plan’s alleged conversion of collateral worth substantially more than amounts due on the underlying debt. The facts upon opposing motions for summary judgment reveal the following:

On August 28, 1986, Chen acquired a $95,500 promissory note and security deed from Frances F. Blankenship encumbering Blankenship’s real property. This note bears interest at a rate of ten percent per annum, is based on thirty-year amortization of the loan and calls for a “balloon payment” of the remaining principal balance upon expiration of ten years. Blankenship is thus required to pay 120 consecutive monthly installments in the amount of $838.08. However, before Blankenship’s first payment became due on November 1, 1986, Chen exchanged the first 60 installments due under the loan for $29,132 in cash from the Profit Sharing Plan. He also assigned the Blankenship note and security deed to the Profit Sharing Plan and executed a document entitled, “AGREEMENT,” whereby Chen assigned the Profit Sharing Plan as agent for servicing the Blankenship note and agreed to allow the Profit Sharing Plan to keep all proceeds of any foreclosure sale (regardless of surplus) resulting from default under the Blankenship note. Chen had the right to avoid any such foreclosure by either curing the default or paying the Profit Sharing Plan the “unamortized principal balance as shown on the amortization schedule, plus all advances and costs.” The Profit Sharing Plan agreed to reassign the Blankenship note and security deed to Chen after receipt of the first 60 installments under the Blankenship note.

On August 22, 1988, Chen borrowed $20,000 from the Profit Sharing Plan in exchange for a $20,000 promissory note bearing interest at a rate of 21 percent per annum, providing for monthly interest payments in the amount of $368.38, “with additional payments of principal paid on any due date of interest in amounts of $1,000.00 minimum and $1,000.00 increments,” and requiring payment of the entire loan balance upon expiration of 34 months. Chen pledged the Blankenship note and security deed as collateral for this loan, executing a “TRANSFER AND ASSIGNMENT” of the note and security deed and a document entitled, “ADDENDUM,” whereby Chen agreed to sell the remaining 60 installments under the Blankenship note to the Profit Sharing Plan for $29,132. This “ADDENDUM” also provides that, “[i]n the event [Chen] shall fail to make said payments under the terms and conditions of [the $20,000 promissory] note made this date[,] the assignment of the collateral shall stand and no further duty shall be held between the parties, and the transfer shall be complete in full.”

After 18 installments, Chen stopped making payments under the $20,000 promissory note in July 1990, and the Profit Sharing Plan (allegedly) posted a letter to Chen dated August 6,1990, providing (in pertinent part) as follows: “[D]ue to [your] default, [the Profit Sharing Plan] claims all rights pursuant to various transfer agreements of promissory note and deed to secure debt from you to [the Profit Sharing Plan] which [the Profit Sharing Plan] already holds an interest. Such note and security deed originally executed by Frances F. Blankenship dated August 29, 1986 shall be subject to private sale at any time after August 20, 1990, which date is ten days subsequent to your presumed receipt of this letter allowing reasonable time for delivery of same.” Chen denies receiving any such demand from the Profit Sharing Plan and deposes (in his affidavit) that he “never received any notice from the [Profit Sharing Plan] indicating or stating that the [Profit Sharing Plan] proposed to retain the Collateral in satisfaction of the obligation [under the $20,000 note].”

In an order granting summary judgment in favor of the Profit Sharing Plan, the trial court found (in pertinent part) that the Profit Sharing Plan did not wrongfully convert the Blankenship note and security deed and that the demand letter purportedly transmitted to Chen on August 6, 1990, was sufficient to satisfy the notice requirements of OCGA § 11-9-505 (2). This Code subsection allows for retention of collateral (upon default) in satisfaction of an underlying debt, but only upon written notice informing the debtor that he has 21 days in which to object to any such proposed retention of collateral. Although recognizing that the August 6, 1990, letter from the Profit Sharing Plan does not explicitly inform Chen of a proposal to retain the Blankenship note and security deed in satisfaction of the underlying debt, the trial court found the letter sufficient to place Chen on notice of such a proposal because it informed Chen that the Profit Sharing Plan claims “ ‘all rights pursuant to various transfer agreements of promissory note and deed to secure debt . . ” and the “Agreement . . . between the parties . . . states ‘(i)n the event [Chen] shall fail to make said payments under the terms and conditions of [the $20,000 promissory] note made this date[,] the assignment of the collateral shall stand and no further duty shall be held between the parties, and the transfer shall be complete in full.’ ” Chen complains of this ruling on appeal. Held:

1. “OCGA § 11-9-505 (2) provides for the only situation in which collateral can be retained by a secured party in satisfaction of a debt. Under that Code section, the secured party has the option of retaining the collateral in satisfaction of the obligation, provided the creditor gives written notice of such proposal if he has not signed a statement after default renouncing or modifying his rights under this subsection.” (Emphasis supplied.) Willis v. Healthdyne, Inc., 191 Ga. App. 671, 673 (2) (382 SE2d 651). The written notice required by OCGA § 11-9-505 (2) must clearly state the creditor’s proposal to retain the collateral in satisfaction of the debt and must notify the debtor that he has 21 days in which to raise an objection to such a proposal. Anderson, Uniform Commercial Code, Volume 9, p. 807, § 9-505:15. See Braswell v. American Nat. Bank, 117 Ga. App. 699, 700 (161 SE2d 420). Compare Motor Contract Co. of Atlanta v. Sawyer, 123 Ga. App. 207, 209 (3) (180 SE2d 282). The purpose of requiring such written notice of a creditor’s proposal to retain collateral in lieu of the debt and of prohibiting waiver of such notice before default (in cases not involving the sale of accounts or chattel paper, OCGA § 11-9-502 (2); C C Financial v. Ross, 250 Ga. 832, 833 (2) (301 SE2d 262)) is to provide the debtor with options for reducing his loss when collateral has a value greater than the debt via redemption pursuant to OCGA § 11-9-506 or liquidation in a commercially reasonable manner as required by OCGA § 11-9-504. Stensvad v. Miners &c. Bank of Roundup, 517 P2d 715, 717 (1973). Allowing a debtor to reject a secured creditor’s proposal to retain collateral in lieu of debt (after default) not only protects the debtor’s right to mitigate his loss, it protects the creditor from claims of the debtor that the creditor should have disposed of the collateral. Herring Mining Co. v. Roberts Bros. Coal Co., 747 SW2d 616, 619 (1988). See Anderson, Uniform Commercial Code, Volume 9, p. 800, § 9-505:5.

In the case sub judice, the letter allegedly posted to Chen on August 6, 1990, neither stated a proposal for the Profit Sharing Plan to retain the collateral in satisfaction of Chen’s debt, nor advised Chen of his right to object to such disposition within 21 days after transmission of the written proposal. Moreover, the condition in the “ADDENDUM” providing for full and complete assignment and transfer of the collateral upon default by Chen amounted to nothing more than an unenforceable attempt at pre-default waiver of the debtor’s rights under Article 9 of Georgia’s Uniform Commercial Code. Kellos v. Parker-Sharpe, Inc., 245 Ga. 130, 132 (2), 133 (263 SE2d 138); GEMC Fed. Credit Union v. Shoemake, 151 Ga. App. 705 (1), 706 (261 SE2d 443). Notwithstanding, the Profit Sharing Plan contends Chen was not entitled to notice under OCGA § 11-9-505 (2) because OCGA § 11-9-104 (h) specifically excludes transactions involving transfers of interests in or liens on real estate from the requirements of Article 9. This argument is without merit.

It is clear that Article 9 does not apply “to the creation or transfer of an interest in or lien on real estate. . . .” OCGA § 11-9-104 (h). However, the transaction between Chen and the Profit Sharing Plan does not involve the “creation” or “transfer” of an instrument involving an “interest in” or “lien on” real estate, it involves pledge of collateral or “lien” against negotiable instruments. “ ‘A pledge is a bailment of personal property as a security for some debt or engagement, the property being redeemable on specified terms.’ 68 AmJur2d 876, Secured Transactions, § 50. As succinctly stated in First Nat. Bank v. Hattaway, 172 Ga. 731, 735 (158 SE 565) (1931) ‘a pledge ... is property deposited with another as security for the payment of a debt.’ The essential elements of a pledge are: T) the existence of a debt or obligation and 2) the transfer of property to the pledgee, to be held as security.’ Williams v. Espey, 11 Utah2d 317 (358 P2d 903) (1961). . . . Regarding a pledge, possession passes, but not title. The pledge creates a lien on the property by the pledgee while legal title remains in the pledgor. Bromley v. Bromley, 106 Ga. App. 606, 608 (127 SE2d 836) (1962).” Shedd v. Goldsmith Chevrolet, 178 Ga. App. 554, 557 (3) (343 SE2d 733).

Although Chen gave the Profit Sharing Plan possession of the Blankenship note and security deed and executed a “TRANSFER AND ASSIGNMENT” of these instruments to the Profit Sharing Plan, the specific language of the “ADDENDUM” executed by the parties reveals that Chen completed these acts to enable the Profit Sharing Plan to “hold the [Blankenship] note and Security Deed . . . as collateral for said loan. ...” Thus, while the Profit Sharing Plan had possession of the Blankenship security deed and note at the time of Chen’s default, title to these instruments never vested in the Profit Sharing Plan. The Profit Sharing Plan only acquired a lien against the commercial paper, i.e., the security deed and the note. Consequently, since the transaction in the case sub judice never resulted in the “creation” or “transfer” of an interest in or lien against real property, the Profit Sharing Plan was not exempt from complying with any notice provision required under Article 9 of Georgia’s Uniform Commercial Code.

Decided March 3, 1995

Reconsideration denied March 28, 1995

Ferguson & Saunders, Richard J. Storrs, Steven M. Kushner, for appellant.

David G. Crockett, for appellee.

The trial court erred in finding that the letter allegedly posted to Chen on August 6, 1990, complied with the notice requirements of OCGA § 11-9-505 (2) and in granting summary judgment in favor of the Profit Sharing Plan. Chen is entitled to recover either damages for conversion of the collateral after default or damages prescribed by OCGA § 11-9-507 (1). UIV Corp. v. Oswald, 139 Ga. App. 697, 700 (229 SE2d 512). See Anderson, Uniform Commercial Code, Volume 9, p. 813, § 9-505:29. Compare Willis v. Healthdyne, Inc., 191 Ga. App. 671, supra, where the debtor suffered no damage as a result of failure to provide notice pursuant to OCGA § 11-9-505 (2); and Barney v. Morris, 168 Ga. App. 426 (309 SE2d 420), where the jury rejected the debtor’s claim for loss of profits because of a lack of notice of repossession of the collateral.

2. In light of our holding in Division 1 of this opinion, it is unnecessary to address Chen’s remaining enumeration of error.

Judgment reversed.

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

       This ten-year balloon loan has an expected yield of $91,915.54. The principal balance of the loan after ten years is expected to be $86,845.81.

       This agreement provides an effective annual yield of more than twenty-four percent for the Profit Sharing Plan and is based on five-year amortization of a debt with an original principal balance equal to the amount the Profit Sharing Plan paid Chen for the first five years of the Blankenship loan, i.e., $29,132.

       According to a ledger sheet attached to the affidavit of Donald H. Bohne, DDS, the $368.38 monthly payments prescribed by this note cover only half of the monthly interest accruals on the 21 percent loan. Based on Bohne’s figures, $32,521.52 would be the amount due on the $20,000 loan upon successful completion of all 34 payments prescribed by this promissory note.


author: Johnson, Judge. Andrews, Judge,

text:
    A94A2030.
    A94A2031.
    GORDY CONSTRUCTION COMPANY v. STEWART. GORDY CONSTRUCTION COMPANY v. TALLEY.
    (456 SE2d 245)
   Johnson, Judge.

Charles Strack, an employee of Gordy Construction Company, was driving a truck owned by Gordy when he was involved in a motor vehicle collision with Rebecca Stewart and her passenger, Lois Talley. Stewart and Talley sued Strack and also sued Gordy under the theory of respondeat superior. Gordy moved for summary judgment on the ground that at the time of the accident Strack was outside the scope of his employment. The trial court denied the motion, finding the instant case is controlled by the decision in IBM v. Bozardt, 156 Ga. App. 794 (275 SE2d 376) (1980). Gordy filed two separate notices of appeal, which are consolidated for purposes of this opinion.

“It is a recognized principle under Georgia law that when an employee is involved in a collision, while operating his employer’s vehicle, a presumption arises that he is acting within the scope of his employment. Once this presumption arises the burden then shifts to the employer to rebut the presumption by evidence that is clear, positive and uncontradicted and that shows the servant was not in the scope of his employment. . . . [T]he Supreme Court in [Allen Kane’s Major Dodge v. Barnes, 243 Ga. 776 (257 SE2d 186) (1979),] held that once the employer or employee presents positive and uncontradicted evidence that the employee’s activities at the time and place in question were not within the scope of his employment, the plaintiff must show some other fact — other than the fact which gave rise to the initial presumption — from which a jury could infer that the employee was acting within the scope of the employment. In determining what other fact must be shown in order to submit a given case to the jury, the court stated: If this other fact is direct evidence, that is sufficient for the case to go to a jury. However, when the other fact is circumstantial evidence, it must be evidence sufficient to support a verdict in order to withstand the defendant’s motion for summary judgment.” (Citations, punctuation and emphasis omitted.) Bozardt, supra at 794-795.

In the present case, because Strack was driving Gordy’s truck, the presumption arises that he was in the scope of his employment at the time of the accident. We assume, without deciding, that this presumption was rebutted by Strack’s deposition testimony that at the time of the collision he was on a personal errand and not performing a task to benefit Gordy. Nevertheless, as in Bozardt, there are enough other facts in this case from which a jury could infer Strack was acting within the scope of his employment when he collided with Stewart. In Bozardt, “the employee was driving a rental car at the expense of the employer, and, while away from his home at the express directions of his employer, while lodging in public accommodations, and while going to and from meals, he was performing an act in the scope of his employment or necessarily incident thereto.” Collins v. Everidge, 161 Ga. App. 708, 710 (1) (289 SE2d 804) (1982). The instant case involves these same factors. Strack was in Georgia away from his home in Alabama at the express direction of Gordy, he was driving a truck owned by Gordy at Gordy’s expense, the truck was the only vehicle available to Strack in Georgia, he was lodging in a motel and he was returning to the motel from a meal at a restaurant when the accident occurred.

An important factor cited by the Bozardt court was the employer’s realization that the employee would use the rented vehicle to travel, within reason, to restaurants for meals. Id. at 797. In the current case, although Gordy had a written policy that employees should not use company vehicles for personal use, Strack gave testimony from which one could infer the reality of how Gordy handled its vehicles was very different from this policy. Strack testified he used the truck for various personal errands and no one at Gordy ever told him not to use it to drive from the motel to meals. When asked if any one at Gordy told him not to use the truck for such errands, Strack said: “If they did, I don’t think I would stay with Gordy as long as I did.” Gordy gave Strack credit cards to pay for use of the truck and Strack kept a log distinguishing between personal and business mileage on the truck, but Gordy never charged him for personal mileage. Moreover, Gordy knew Strack was living in a motel far away from his permanent residence with only the company truck as transportation. A reasonable inference from all this evidence is that Gordy knew Strack would use the truck for personal errands, including driving to and from some meals.

In cases that distinguish Bozardt, the employee is not traveling to or from a meal and staying in a motel while away from home on business, but is unquestionably on a personal errand without the employer’s knowledge or consent at the time of the collision (e.g., visiting a relative, going to the drugstore or leaving a bar). See Johnstown Financial Corp. v. Roper, 170 Ga. App. 575 (317 SE2d 634) (1984); Presser v. Rayner, 166 Ga. App. 633 (305 SE2d 149) (1983); Collins v. Everidge, supra. Unlike the employees in those cases, Strack was not unquestionably using the truck for a wholly personal errand without Gordy’s permission. The instant case is therefore not materially distinguishable from Bozardt. Because there is a genuine issue of fact as to whether Strack was outside the scope of his employment at the time of the collision, the trial court properly denied Gordy’s motion for summary judgment.

Judgment affirmed.

McMurray, P. J., Pope, P. J., Blackburn, Smith and Ruffin, JJ., concur. Beasley, C. J., Birdsong, P. J., and Andrews, J., dissent.

Andrews, Judge,

dissenting.

Because I believe the plaintiffs below failed to carry their evidentiary burden in opposing summary judgment to Gordy, Allen Kane’s Major Dodge v. Barnes, 243 Ga. 776 (257 SE2d 186) (1979), and further that IBM v. Bozardt, 156 Ga. App. 794 (275 SE2d 376) (1980), should be overruled, I must respectfully dissent.

All parties below, in supporting and opposing Gordy’s motion for summary judgment, relied solely on the deposition of Strack, Gordy’s employee. That deposition reflects that Strack, who resided with his wife in Eufaula, Alabama, was employed as a foreman of a work crew which installed water, sewage, and drainage pipes on construction projects. Gordy Construction Company was headquartered in Columbus, Georgia, and the project at the time of the accident was located in Cobb County, also the location of the wreck. Strack owned an automobile, but it was in the possession of his wife in Alabama.

On the day of the wreck, Strack had finished work on the project, returned in his company truck to his motel where he was staying for the project, gone to dinner at a steakhouse, and was returning to the motel around 10:00 p.m. when the wreck occurred. The truck was owned by Gordy and Strack was provided with company credit cards with which to purchase gasoline. Strack maintained a log book in which he noted his personal mileage with a “P.”

Here, Strack’s testimony with regard to what he was doing at the time of the wreck was unequivocal: “Q. When you left the job site that day, do you know where you went? A. I believe I went right back to the motel. Q. And then when you left the motel, . . . you indicated you were going at some point to a steak house for dinner? A. Um-hum. Q. Did you make any stops between the motel and the steak house? A. No. Q. When you left the steak house, you were going back to the motel? ... A. Yes, sir. Q. Were you intending to make any stops or do anything on the way from the steak house to the motel, had the wreck not occurred? A. Well, I do remember maybe getting a hair cut, if it was still open, on my way back. But, if it was closed, I wasn’t going to bother. Q. Was there anything else? A. That was it. Q. And that, of course, would have been something entirely personal that you wanted to do[?] ... A. Right. Q. And you were by yourself? A. Yes, sir. Q. The trip from the motel to the steak house to get dinner, that was purely personal to you; would that be correct? A. Yes, sir. Q. So as soon as you left the motel, whatever you did or intended to do for the rest of the evening was purely personal to you . . . ? A. Yes.”

This unequivocal testimony by Gordy’s employee is enough, alone, to distinguish this case from IBM, supra, because there IBM’s employee Henner was out of town attending a convention and was on his way to dinner in a rental car paid for by IBM. Henner never, by deposition or otherwise, stated that his mission in going to dinner was purely personal.

Also, IBM’s rationale was based solely on cases arising in the area of workers’ compensation. “ ‘To be injured within the course and scope of one’s employment in the context of the worker’s compensation system is not the same thing as to be in the course or scope of one’s employment and cause injury to a third person who is foreign to the employee-employer relationship. . . . Worker’s compensation is a creature of statute and one designed especially to protect workers injured in the course of their work. . . . Within the context of the statute, the employer has a special duty vis-a-vis the employees who work for him. Under worker’s compensation, an employee is covered for injuries which arise “* * * out of and in the course of employment. . . .” This states a problem of proof different from that which is encountered in the negligence area. . . . Within the general negligence sphere, the rules regarding “scope of employment” are somewhat different. This is so for a number of reasons. A liberal statute designed to benefit workers is not involved. There is no special relationship giving rise to a special duty as in worker’s compensation. There is no sound reason for finding liability without fault for social or economic reasons.’ [Cit.] Since the laws of workers’ compensation and negligence are so different, an employee can be said to be within the scope of employment for workers’ compensation purposes and not within the scope of employment for negligence purposes.” Jones v. Aldrich Co., 188 Ga. App. 581, 584 (2) (373 SE2d 649) (1988).

Decided March 8, 1995

Reconsideration denied March 28, 1995

Tisinger, Tisinger, Vance & Greer, Robert H. Sullivan, Glenn M. Jarrell, for appellant.

Griffin & O’Toole, Martin K. O’Toole, Downey & Cleveland, Y. Kevin Williams, Arrington & Hollowell, W. Ray Persons, for appellees.

Jones, supra, was the last case to cite and distinguish IBM v. Bozardt, supra. It involved an employee traveling back from an out-of-town site who was involved in an accident on her way home. She was awarded workers’ compensation benefits and plaintiff third party contended this controlled the question of respondeat superior. It does not. Jones, supra. To the extent that it can be said that Jones did not implicitly overrule that case, it should be expressly overruled for the reasons set forth in Jones.

The present case is more factually similar to and should be controlled by Braddy v. Collins Plumbing &c. Co., 204 Ga. App. 862 (420 SE2d 806) (1992). There, Lamb, a mechanic for Collins, was working on a sewage pumping station. He was paid by the hour and was on his way to the project site from his home in a truck owned by Collins and filled with company supplies when he had the wreck. Collins had given him permission to drive the truck to and from work. Lamb stated unequivocally that he was not doing anything for his employer’s benefit and was not on the clock at the time of the wreck. Summary judgment for Collins was held appropriate.

Here, there has been no evidence presented by appellees which would qualify as the “other evidence” needed under Allen Kane’s, supra, to overcome the positive and uncontradicted testimony of Strack. Therefore, I believe summary judgment was demanded in Gordy’s favor. Braddy, supra; see also Schofield v. Cox Enterprises, 212 Ga. App. 354 (441 SE2d 693) (1994); Riel v. Paulding County Bd. of Ed., 206 Ga. App. 230 (1) (425 SE2d 305) (1992); Wright v. Transus, Inc., 209 Ga. App. 771, 775 (2) (434 SE2d 786) (1993) (Andrews, J., dissenting).

I am authorized to state that Chief Judge Beasley and Presiding Judge Birdsong join in this dissent.


text:
    A94A2102.
    RESTAURA, INC. et al. v. SINGLETON.
    (456 SE2d 219)
   Ruffin, Judge.

In this premises liability case, appellants Restaura, Inc. f/k/a Greyhound Food Management (“GFM”) and Burger King Corporation (“Burger King”) appeal from the trial court’s denial of their motion for summary judgment.

Appellee, Sally Singleton, was on her way to the ticketing area in the Greyhound bus terminal where her husband was purchasing a ticket when she slipped and fell on a greasy area of a walkway behind the back door of a Burger King restaurant located at the terminal. The area where she fell was owned by Greyhound Lines, Inc. (“Greyhound”) and jointly used and maintained by Greyhound, Burger King and GFM.

1. Burger King and GFM contend that the trial court erred in denying their motion for summary judgment because Singleton was a licensee and there is no evidence that her injuries were caused by their wilful and wanton conduct. We disagree.

“The liability of [GFM and Burger King] depends upon whether [Singleton] at the time [she] suffered [her] injury, was a licensee or an invitee. Under OCGA § 51-3-2, the owner or proprietor of the premises is liable only for wilful or wanton injury to a licensee, whereas under OCGA § 51-3-1 the landowner or occupier owes an invitee the duty to exercise ordinary care in keeping the premises safe.

“To determine whether a person is an invitee or a mere licensee, the nature of his relation or contact with the owner or occupier of the premises must be determined. The test is ‘whether the injured person at the time of the injury had present business relations with the owner of the premises which would render his presence of mutual aid to both, or whether his presence on the premises was for his own convenience.’ ” (Citation and punctuation omitted.) Armstrong v. Sun-dance Entertainment, 179 Ga. App. 635 (347 SE2d 292) (1986) (citing Atkins v. Tri-Cities Steel, 166 Ga. App. 349, 350 (304 SE2d 409) (1983)).

In the instant case, the area where Singleton fell was owned by Greyhound and jointly used and maintained by Greyhound, GFM and Burger King. Although Singleton contends that GFM and Burger King occupied the terminal to provide food to Greyhound passengers, she cites nothing in the record to support this. The record is clear that the reason Singleton was on the premises was her husband’s travel, and since there is nothing to suggest that at the time of her injury Singleton had any present business relations with GFM or Burger King, we must conclude that she was a licensee.

Accordingly, the only duty owed to Singleton by GFM and Burger King “was to refrain from ‘wilful or wanton’ injury, from deliberate acts or omissions and those that warrant an inference of conscious indifference to consequences.” (Citations omitted.) Stanfield v. Kime Plus, 210 Ga. App. 316, 317 (436 SE2d 54) (1993). In support of its motion for summary judgment on this issue, Burger King and GFM filed an affidavit of Burger King manager Bill Taylor. Taylor’s affidavit established that Burger King was aware that spilled grease was dangerous, as Burger King required its employees to inspect the area behind the restaurant’s back door for “trash or spillage or conditions which could cause harm to others. . . .” Similarly, the affidavit stated that it was Burger King’s policy for employees to clean grease discovered around the Burger King operations at the terminal “so as to eliminate accidents such as the one at issue here.”

In addition, Taylor averred that it was the policy of Greyhound and Burger King that “nothing was to be stacked or stored out behind the back door area of the [restaurant], and all trash and refuse of Burger King was stored inside the back door until it was transported to the trash compactors.”

In opposition to the motion, Singleton presented affidavits from three individuals who swore that on various occasions, including the day of the incident, they saw a number of garbage bags stacked outside Burger King’s back door which were leaking grease onto the sidewalk where Singleton fell. The first affidavit came from an individual unrelated to Singleton who was present when she fell. This person also stated that the leaking garbage bags made the walkway very slippery but that the grease was not noticeable because it was clear. Another affidavit came from one of Singleton’s former lawyers who withdrew from the case for health and other reasons. He averred that he observed these same conditions on three separate occasions, that the rubber tip of his cane slid due to the leaking grease and that he provided pictures of the area behind the back door to GFM and Burger King. Singleton’s second lawyer (who withdrew from the case because of the possibility he might have to testify about his observation of the same conditions), Singleton and her husband all gave similar affidavits.

On summary judgment the evidence must be viewed most favorably toward the respondent and against the movant. Therefore, we agree that a jury issue existed as to whether the invisible, slick conditions of the area by the restaurant’s back door caused by Burger King’s violation of the policy against stacking garbage outside its doors constituted deliberate acts or omissions which warrant an inference of conscious indifference to consequences of which, by their own admission, they were aware. See North v. Toco Hills, 160 Ga. App. 116 (286 SE2d 346) (1981). Consequently, the trial court did not err in denying the motion for summary judgment.

Decided February 20, 1995

Reconsideration denied March 28, 1995

Mozley, Finlayson & Loggins, Sewell K. Loggins, Deborah A. Finnerty, for appellants.

Glenville Haldi, for appellee.

2. In light of our holding in Division 1, we need not address appellants’ second enumeration of error.

Judgment affirmed.

Birdsong, P. J., and Blackburn, J., concur.


text:
    A94A2243.
    MITCHAM v. INGRAM.
    (455 SE2d 846)
   McMurray, Presiding Judge.

This case first appeared via direct appeal in Mitcham v. Blalock, 214 Ga. App. 29 (447 SE2d 83), where the judgment of the trial court was reversed in part and the case was remanded for further proceedings on plaintiff Michael Mitcham’s claim against defendant Rollo Frederick Ingram. While this direct appeal was pending, the trial court entered an award of attorney fees and expenses pursuant to OCGA § 9-15-14 in favor of defendant Ingram predicated, at least in part, on the erroneous dismissal of certain claims plaintiff asserted against defendant Ingram. Held:

We granted this discretionary appeal because the trial court’s OCGA § 9-15-14 award is clearly connected (at least in part) to the merits of plaintiff’s claim against defendant Ingram. Accordingly, in order to avoid the anomalous possibility that the OCGA § 9-15-14 award in favor of defendant Ingram will be allowed to stand notwithstanding reversal of the underlying judgment upon which the award is predicated, Mitcham v. Blalock, 214 Ga. App. 29, supra, we hereby vacate the judgment and remand the case sub judice to the trial court with direction that the trial court vacate the OCGA § 9-15-14 award so as to prevent such an anomalous possibility. Rolleston v. Huie, 198 Ga. App. 49, 51 (4) (400 SE2d 349). See Fairburn Banking Co. v. Gafford, 263 Ga. 792, 794 (439 SE2d 482).

Judgment vacated and case remanded.

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

Decided March 13, 1995

Reconsideration denied March 28, 1995.

Robert H. McKnight, Jr., for appellant.

Bruce C. Bailey, Michael K. Wolensky, Kutak & Rock, Angela M. Gottsche, Tinkler & Groff, William P. Tinkler, Jr., for appellee.

Charles L. Bradley, pro se.


author: Smith, Judge. Pope, Presiding Judge,

text:
    A94A2253.
    HOWELL v. THREE RIVERS SECURITY, INC. et al.
    (456 SE2d 278)
   Smith, Judge.

Paul Brent Howell appeals from the trial court’s grant of summary judgment to defendants, Three Rivers Security, Inc. and Disco Mania 2000, Inc., in this premises liability case.

The facts construed in a light most favorable to Howell are as follows: Disco Mania owns a bar in Rome, Georgia, named Shenanigan’s. Three Rivers provides uniformed security for the bar. Howell allegedly was injured in the bar when he got into a fight with Billy Bennett, Franklin Morriss, and an unnamed third person. According to Three Rivers’ president, there was a procedure in place at Shenanigan’s whereby patrons would be banned from the bar for various periods of time for causing trouble. There is evidence in the record that prior to the fight Bennett and Morriss had been told they were permanently banned from Shenanigan’s for fighting. However, on the date of the incident in question, this ban was not enforced. The record also shows that a few weeks before the fight Howell had been threatened personally by Bennett because of an incident that occurred between Howell and Bennett’s girl friend. Howell also had heard from other sources that Bennett wanted to beat him up.

On the night of the fight, Howell paid a cover charge and was admitted to Shenanigan’s along with his date and some friends. Shortly after arriving, Howell found out that Bennett and Morriss were also at the bar. After seeing Bennett, Howell told some friends to “watch his back” for him. Howell told his date that he wanted to leave, but instead of immediately leaving he decided to dance one more slow dance. Howell testified that during this last dance he tried to dance close (ten to fifteen feet) to a security guard allegedly for protection. It is undisputed that Howell never told any security guard or any employee of the bar that someone inside the bar might be after him or that he might be in danger.

While dancing, Howell saw Bennett and the others coming toward him. Expecting Bennett to hit him, Howell put Bennett in a head-lock. While struggling with Bennett, Howell injured his knee. After falling to the floor, Howell was allegedly kicked in the head by Morriss. The altercation lasted from ten to thirty seconds. Howell claims that after the incident one of Disco Mania’s officers, Mrs. Greene, told Howell that she knew what Bennett and Morriss were there for and that she should not have let them enter the bar. According to Howell, Mrs. Greene also told him that Bennett and Morriss had both been banned from the bar for life.

In his complaint, Howell claimed that Three Rivers knew or should have known of Bennett’s and Morriss’ propensity for violence and thus was wantonly and wilfully negligent in failing to properly secure the premises to more or less protect Howell from these individuals. Howell claimed that Disco Mania also knew or should have known that these individuals had a propensity for violence and that Disco Mania was negligent in failing to provide adequate security for Howell while an invitee at Shenanigan’s. Howell did not bring suit against Bennett or Morriss.

Three Rivers and Disco Mania both filed motions for summary judgment. In opposition to these motions, Howell filed the affidavit of Larry Talley, a security expert. Talley testified that in his opinion Disco Mania and Three Rivers had both breached their respective duties of care by allowing Bennett and Morriss to come back onto the premises after originally banning them. He also stated that those breaches were the “proximate cause” of Howell’s damages. The trial court granted summary judgment to Disco Mania and Three Rivers. We affirm.

As a paying customer of Shenanigan’s, it is undisputed that Howell was an invitee in this case. See Lee v. Myers, 189 Ga. App. 87, 88 (1) (374 SE2d 797) (1988). A proprietor’s duty to invitees is to “exercise ordinary care in keeping the premises and approaches safe.” OCGA § 51-3-1. The proprietor “is not an insurer of an invitee’s safety. The true ground of liability ... is the superior knowledge of the proprietor of the existence of a condition that may subject the invitee to an unreasonable risk of harm.” (Citation and punctuation omitted.) Pound v. Augusta Nat., 158 Ga. App. 166, 167-168 (279 SE2d 342) (1981).

In this case, Morriss testified by affidavit that on a prior occasion he and Bennett had both been barred from Shenanigan’s for fighting. During his deposition, Morriss also testified that on one occasion he was told he was barred from the bar for life. This testimony and the purported statements of Mrs. Greene constitute record evidence that Disco Mania and Three Rivers had actual knowledge that Bennett and Morriss had a propensity for violence and that they arguably posed a potential danger to all Shenanigan’s patrons, including Howell. It is also undisputed that on the night in question Bennett and Morriss were both allowed to enter the bar. Talley’s affidavit states that this constitutes negligence on Disco Mania and Three Rivers’ part.

We readily agree that Disco Mania’s and Three Rivers’ actions in allowing Bennett and Morriss on the premises, in light of the knowledge they allegedly possessed, constitutes a breach of the duty they owed to Howell. However, breach of duty alone does not make a defendant liable in negligence. The rule remains that the “true ground of liability ... is the superior knowledge of the proprietor of the existence of a condition that may subject the invitee to an unreasonable risk of harm.” (Emphasis supplied.) Pound, supra.

Howell cannot seriously contend that appellees had superior knowledge of Howell’s peril under the circumstances. Howell manifested his knowledge of the risk to him of remaining by deliberately dancing in close proximity to a security guard. Howell knew, or certainly should have known, that this strategy would not totally neutralize the known risk to him of remaining on the premises. To ignore this consequence would be tantamount to making appellees “ ‘the insurer of [Howell’s] safety.’ ” Pound, supra.

Since any breach of duty by the appellees was not the “proximate cause” of Howell’s injuries, the trial court properly granted appellees’ motion for summary judgment.

Judgment affirmed.

Beasley, C. J., Birdsong, P. J., Andrews, Johnson, Blackburn and Ruffin, JJ., concur. McMurray, P. J., and Pope, P. J., dissent.

Pope, Presiding Judge,

dissenting.

I respectfully dissent to the majority opinion. It is undisputed in this case, that as a paying customer of Shenanigan’s, Howell was an invitee. See Lee v. Myers, 189 Ga. App. 87, 88 (1) (374 SE2d 797) (1988). Moreover, it is undisputed that Disco Mania and Three Rivers had undertaken to provide security to the patrons of the bar. “[A] proprietor [has a duty] to protect an invitee from injury caused by the misconduct of employees, customers and third persons if there is any reasonable apprehension of danger from the conduct of said persons or if injury could be prevented by the proprietor through the exercise of ordinary care and diligence. Ordinarily, even where the proprietor’s negligence is shown, he would be insulated from liability by the intervention of an illegal act which is the proximate cause of the injury. However, the above rule has been held inapplicable if the defendant (original wrongdoer) had reasonable grounds for apprehending that such criminal act would be committed.” (Citation and punctuation omitted.) Bishop v. Mangal Bhai Enterprises, 194 Ga. App. 874, 876 (3) (392 SE2d 535) (1990). Additionally, once a proprietor undertakes the duty of providing security for invitees it must do so in a non-negligent manner. Id. at 877.

Decided March 17, 1995

Reconsideration denied March 28, 1995

L. Cleveland Burton, Keith J. Williams, for appellant.

Drew, Eckl & Farnham, B. Holland Pritchard, Bruce A. Taylor, Jr., for appellees.

As the majority readily admits, Disco Mania’s and Three Rivers’ actions in this case, in light of the knowledge they allegedly possessed, clearly would constitute a breach of the duty they owed to Howell. Although the majority concludes that Howell had superior knowledge of the potential danger to him by remaining in the bar after seeing Bennett and Morriss, I cannot agree. Clearly an issue of material fact exists in this case as to whether Howell’s knowledge of any potential danger to him was equal or superior to that of the defendants. This is especially true in light of the purported testimony of Mrs. Greene, to the effect that on the night in question, she knew what Bennett and Morriss were there for, and yet still let them into the bar knowing they had previously been banned for life. Consequently, I would reverse the trial court’s grant of summary judgment to Disco Mania and Three Rivers because there are issues in this case that should be determined by a jury.

I am authorized to state that Presiding Judge McMurray joins in this dissent.


author: Andrews, Judge. Beasley, Chief Judge,

text:
    A94A2333.
    HENRY v. MEDICAL CENTER, INC.
    (456 SE2d 216)
   Andrews, Judge.

Henry appeals from the grant of summary judgment to the hospital in her medical malpractice suit.

Viewed with all inferences in favor of Henry, the evidence was that she entered defendant hospital on September 4, 1991 to give birth. Upon being admitted, an IV was placed in her hand by hospital personnel. According to Henry, the IV began to hurt immediately upon being inserted and continued to hurt and she complained to a nurse about it. Henry was released on September 6,1991 and over the next two days she began having fever blisters around the point of insertion. By Sunday, September 8, her arm was numb. On Monday, September 9, she called her ob/gyn and was told to elevate the arm and apply heat. When this provided no relief, she went in to see her doctor on September 10. Treatment was begun for cellulitis and she was admitted to the hospital on September 13 for intensive antibiotic therapy.

1. The brief filed by counsel for Henry is not in compliance with the Rules of the Court of Appeals. As pointed out by appellee, there are no references to the record or transcript to support the arguments made by Henry in direct violation of Rule 15 (c) (3) (i) and (ii). In such a situation, as stated by then Presiding Judge Beasley in Dugger v. Danello, 175 Ga. App. 618, 620 (2) (334 SE2d 3) (1985), “[t]he absence of specific page references is tantamount to an abandonment of the enumerations of error.” According to Rule 7, it may also lead to dismissal of the appeal when committed by an appellant.

“ ‘ “Error must be shown affirmatively by the record, and not by mere recitations in a brief. (Cits.)” (Cit.)’ Rolling v. State, 204 Ga. App. 13 (1) (418 SE2d 396) (1992).” Wright v. State, 213 Ga. App. 626, 627 (445 SE2d 377) (1994).

“ ‘ “ ‘The burden is upon the party alleging error to show it affirmatively by the record.’ ” (Cit.)’ [Cit.]” Gale v. Obstetrics & Gynecology of Atlanta, 213 Ga. App. 614, 615 (2) (445 SE2d 366) (1994). See McHaffie v. Decatur Fed. &c. Assn., 214 Ga. App. 368, 369 (448 SE2d 36) (1994).

2. Considering the record, as we are bound to do, it reflects that suit was filed on September 10, 1993. The hospital filed its motion to dismiss or for summary judgment which was granted by the trial court. We affirm.

Under OCGA § 9-3-71 (a), such an action must be brought within two years after the date “on which an injury . . . occurred.” While appellant argues that her visit to her doctor’s office where the actual diagnosis was made is the operative date, it is without question that, at least by Sunday, September 8 when her numbness began and a day after the appearance of fever blisters, Henry was aware that her arm had been injured.

“The fact that [Henry] did not know the medical cause of her suffering did not affect the application of OCGA § 9-3-71 (a) when [her own] evidence established that her injury had occurred and had physically manifested itself to her [by September 8, 1991].” Frankel v. Clark, 213 Ga. App. 222, 223 (444 SE2d 147) (1994). See Jones v. Lamon, 206 Ga. App. 842 (426 SE2d 657) (1992).

Therefore, summary judgment was properly granted to the hospital.

Judgment affirmed.

Beasley, C. J., and Johnson, J., concur specially.

Beasley, Chief Judge,

concurring specially on motion for reconsideration and request for leave to supplement the record.

It was pointed out in a special concurrence when the original opinion in this case was issued that I reluctantly concurred, because the record contained no support for the statement in appellant’s brief that “[s]uit was [originally] filed on March 25, 1993, in the State Court of Muscogee County and subsequently dismissed without prejudice on May 27, 1993.” The record does show that the suit before us was filed on September 10, 1993, and that the injury first manifested itself at least by September 7, 1991, when the patient experienced fever blisters and other unexpected negative symptoms.

If evidence of the facts asserted by appellant in regard to the procedural history of her claim were contained in the record, this case might come within the grace period provided by OCGA § 9-2-61 (a), which states, “[w]hen any case has been commenced in either a state or federal court within the applicable statute of limitations and the plaintiff discontinues or dismisses the same, it may be recommenced in a court of this state or, if permitted by the federal rules of civil procedure, in a federal court either within the original applicable period of limitations or within six months after the discontinuance or dismissal, whichever is later. . . .” The suit before us was filed within six months of May 27, so the statute would declare it timely if it was a renewed suit, inasmuch as it would be regarded as having been filed on March 25. Bennett v. Matt Gay Chevrolet Oldsmobile, 200 Ga. App. 348, 349 (1) (408 SE2d 111) (1991). I say the suit “might” come within the grace period because this assumes that the original suit would fall within the procedural strictures of OCGA § 9-11-9.1 (f), which is also not demonstrated by the record. The expert affidavit in the current suit is dated September 10, 1993; it did not exist the previous March so as to be submitted with any complaint filed then.

Although appellee does not dispute the statement which is dehors the record, and Rule 27 (b) (1) permits the court to accept it as uncontroverted, this generally relates to facts shown somewhere in the record. Appellant has the responsibility of both including in the record all that is necessary to support the enumerations of error, Nazli v. Scott, 203 Ga. App. 523, 524 (2) (417 SE2d 187) (1992), and citing the parts of the record which confirm the accuracy of the required statement of the proceedings below. Rule 27 (a) (1). Section (c) (3) of that rule also directs that specific references to the record or transcript be made. See Dugger v. Danello, 175 Ga. App. 618, 619 (2) (334 SE2d 3) (1985).

Appellant has not raised as a ground of the enumerated error that the court failed to consider the grace period provided by OCGA § 9-2-61 (a), but we could not even overlook this deficiency because of the silent record. Nor has appellant attempted to utilize the procedure for adding record which is provided for in OCGA § 5-6-48 (d), until this late date. The record would have to include the pleadings and voluntary dismissal in the prior suit, and appellant has not asserted that her first suit satisfied OCGA § 9-11-9.1 (f).

Decided February 16, 1995

Reconsideration Denied March 28, 1995.

William J. Wright, for appellant.

Layfield, Rothschild & Morgan, Jerome M. Rothschild, Virgil T. Theus, for appellee.

Thus the involuntary dismissal must be affirmed. It would be a slim reed upon which to exercise jurisdiction if the mere statement of the plaintiff or appellant could establish timeliness; whether deliberately misleading or innocently inaccurate, the self-serving recitation would allow litigation of a stale claim. For the court to assure compliance with the law, it must be certain that such a statement represents fact.

I am authorized to state that Judge Johnson joins in this special concurrence.

       At the time the briefs were filed, this was Rule 15.