text:
    A99A1779.
    SCARBROUGH et al. v. HALLAM et al.
    (525 SE2d 377)
   McMurray, Presiding Judge.

Appellants-plaintiffs Anne Marie Scarbrough and Susan E. Reu wrought the instant action for damages against appellees-defendants Rosalie Hallam and Hallam Construction Services, Inc., alleging breach of contract, negligent construction, damages for cost of repairs, fraud, and conversion arising out of renovation work done on ;heir home. The record reveals that the instant action arose under ;he second of two contracts plaintiffs entered into with the defendants for the renovation of their home. Plaintiffs contend that defendants fraudulently induced them to enter into the second of the contacts which provided for an addition to the rear of their home by falsely leading them to believe that the useable-space minimum specified by the construction lender, SouthTrust Mortgage Corporation (“SouthTrust”), could be met by removing an inner wall. Additionally, plaintiffs contend that defendants converted a substantial portion of the $11,034 they paid defendants in advance under the second contract — this by means of a draw in the amount of approximately $10,000 against such advance not authorized by SouthTrust.

Following a hearing upon cross-motions for partial summary judgment — defendants pertinently seeking Hallam’s dismissal from the lawsuit and dismissal of plaintiffs’ fraud and conversion claims, plaintiffs seeking summary judgment as to their conversion claim — the superior court issued its order granting summary judgment to defendants and denying summary judgment to plaintiffs. Plaintiffs now appeal. Held:

1.

To prevail at summary judgment under OCGA § 9-11-56, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law. OCGA § 9-11-56 (c). A defendant may do this by showing the court that the documents, affidavits, depositions and other evidence in the record reveal that there is no evidence sufficient to create a jury issue on at least one essential element of plaintiff’s case. If there is no evidence sufficient to create a genuine issue as to any essential element of plaintiff’s claim, that claim tumbles like a house of cards. All of the other disputes of fact are rendered immaterial. See, e.g., Holiday Inns v. Newton, 157 Ga. App. 436 (278 SE2d 85) (1981). A defendant who will not bear the burden of proof at trial need not affirmatively disprove the nonmoving party’s case; instead, the burden on the moving party may be discharged by pointing out by reference to the affidavits, depositions and other documents in the record that there is an absence of evidence to support the nonmoving party’s case. If the moving party discharges this burden, the nonmoving party cannot rest on its pleadings, but rather must point to specific evidence giving rise to a triable issue. OCGA § 9-11-56 (e).

(Emphasis in original.) Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474).

2. Plaintiffs contend that the superior court erred in granting summary judgment to defendants for failing to construe Hallam’s affidavits in support of defendants’ motion for partial summary judgment against her as in conflict with testimony she gave upon being deposed by plaintiffs in violation of the contradictory testimony rule. Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27, 30 (2) (343 SE2d 680). The superior court’s order is silent as to the basis upon which it granted summary judgment to defendants in the case sub judice. Plaintiffs do not support the instant claim of error by reference to the record as to the superior court’s alleged misapplication of the contradictory testimony rule. Further, while plaintiffs point to Hallam’s affidavits averring that SouthTrust, through John Blakeslee, authorized defendants to take a $10,000 draw against the $11,034 plaintiffs had paid for renovation work under the second contract, they do not point to any testimony in Hallam’s deposition as in conflict with that she provided by affidavit. Plaintiffs do correctly note that defendants’ counsel conceded conflict between Hallam’s affidavits and her testimony upon being deposed insofar as she averred by the former that she made application for the complained-of $10,000 draw through Blakeslee while denying having discussed any draw with him by the latter. This, however, does nothing to advance plaintiffs’ duty to make reference to the record as to error in the superior court as alleged. Court of Appeals Rule 27 (c) (3) (i). Neither is the question of whether Hallam obtained authority-for the $10,000 draw through Blakeslee material. Rather, the relevant question is whether Hallam denied having such draw authority upon being deposed in conflict with the evidence she provided by her later affidavits. We find none.

Under these circumstances, we need not consider the instant claim of error as it is premised upon unsupported allegations in plaintiffs’ brief rather than demonstrated error in the record. In light of the foregoing, we must rely on the presumption of regularity as to the superior court’s disposition of the parties’ cross-motions for partial summary judgment and assume that the superior court properly granted summary judgment to defendants and denied summary judgment to plaintiffs upon an appropriate consideration of the relevant evidence. Tanis v. Tanis, 240 Ga. 718 (1) (242 SE2d 71).

_

3. Finally, plaintiffs contend that the superior court erred in granting summary judgment to defendants as to their fraud and conversion claims for material issues of fact remain arising out of defendants’ $10,000 draw against the $11,034 plaintiffs paid to defendants for additional renovation work under the second contract. We disagree.

Five elements must be proven in order to establish the tort of fraud:

(1) a false representation; (2) scienter; (3) intention to induce plaintiff to act or refrain from acting; (4) justifiable reliance by plaintiff; and (5) damage to plaintiff. Lykins v. Nationwide Mut. Ins. Co., 214 Ga. App. 577, 579 (2) (448 SE2d 716) (1994). With regard to the element of scienter, “(t)he gist . . . of an action for damages in tort based on the falsity of representations is that they must have involved actual moral guilt.” (Citations and punctuation omitted.) Bennett v. Clark, 192 Ga. App. 698, 699 (1) (385 SE2d 780) (1989).

Jones v. Cartee, 227 Ga. App. 401, 405 (2) (489 SE2d 141). Plaintiffs contend that they were fraudulently induced to enter into the second contract upon the defendants’ false representation that they could remove all of an inner wall to provide the floor space required by the construction loan. However, no evidence was presented by plaintiffs showing that defendants acted with any intent to deceive when the parties entered into the first contract which, in part, called for the removal of such wall. Consequently, plaintiffs failed to prove at least one element of their claim for fraud, and the superior court properly granted summary judgment to defendants thereon for that reason. Lau’s Corp. v. Haskins, 261 Ga. 491, supra.

Likewise, we conclude that the superior court properly granted defendants summary judgment on plaintiffs’ conversion claim for want of evidence that any demand was made of defendants for the return of its $10,000 draw against plaintiffs’ $11,034 payment on the second contract. In order to show conversion of their money, plaintiffs were, among other things, required to show that they made demand for its return. Charter Mtg. Co. v. Ahouse, 165 Ga. App. 497, 498 (300 SE2d 328). This plaintiffs did not do in opposition to defendants’ motion for partial summary judgment. Lau’s Corp. v. Haskins, 261 Ga. 491, supra.

Decided November 16, 1999.

Michael B. Butler, for appellants.

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

Judgment affirmed.

Johnson, C. J., and Phipps, J., concur.

       The exact amount appears to be $10,000.

       In this regard, we have taken the liberty to review the record and find no inconsistency on this issue. “ “Whether such testimony is contradictory! ] and whether a reasonable explanation has been offered [are] question[s] of law for the trial court. (Cits.)’ Worley v. State Farm &c. Ins. Co., 208 Ga. App. 805, 807 (432 SE2d 244) (1993).”Harrison v. Beckham, 238 Ga. App. 199, 202 (2) (518 SE2d 435). Although Hallam’s deposition is unclear as to whether she discussed the $10,000 draw here in issue with Blakeslee, she deposed, as she consistently averred in both her affidavits, that defendants took such draw against the $11,034 plaintiffs paid under the second contract upon authority to do so, crediting plaintiffs’ account accordingly.

       In addition to proof of demand, the tort of conversion requires proof of demand’s refusal, proof that plaintiff lawfully acquired possession of the property, and proof that title and right of possession was in plaintiff. Charter Mtg. Co. v. Ahouse, 165 Ga. App. 497, 498 (2) (300 SE2d 328).


source: Caselaw Access Project

author: Phipps, Judge.

license: Public Domain

text:
    A99A1827.
    GEORGIA FARM BUREAU MUTUAL INSURANCE COMPANY v. OSTING et al.
    (525 SE2d 380)
    Decided November 16, 1999.
   Phipps, Judge.

Osting and Morrison entered into a bailor-bailee agreement for storage of Morrison’s goods at Osting’s residence. While there, the goods were destroyed by fire. Osting’s homeowner’s insurance carrier, Georgia Farm Bureau Mutual Insurance Company, sued for a declaratory judgment that its policy does not cover claims against Osting for loss of the property. The trial court held otherwise.

The insurer appealed in Ga. Farm &c. Ins. Co. v. Osting. Because the coverage issue turns on the question of whether Osting and Morrison intended their contract to directly relate to the insured location, and because the trial court decided the case on another ground, this court reversed and remanded for reconsideration. This court held that the testimony of Morrison and Osting presented conflicting evidence on the question to be decided.

On remand, the trial court, without hearing additional evidence, ruled that the parties intended their contract to relate directly to the insured premises.

The insurer again appeals, arguing that (1) Osting’s and Morrison’s testimony was not admissible on the question of contract interpretation, and (2) there is no evidence to support the trial court’s ruling. In the prior appeal, these issues were decided adversely to the insurer through rulings which are binding in this appeal under the law of the case rule.

Judgment affirmed.

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

John T. Croley, Jr., for Georgia Farm Bureau.

Jason A. Craig, for Osting.

John E. Morrison, pro se.

       235 Ga. App. 599 (1) (510 SE2d 334) (1998).

       See In re Spruell, 237 Ga. App. 259 (515 SE2d 190) (1999).


author: Blackburn, Presiding Judge.

text:
    A99A2278.
    ROSE v. THORPE.
    (525 SE2d 381)
   Blackburn, Presiding Judge.

James A. Rose appeals the trial court’s finding that he was in contempt for failure to pay child support arrearages in the amount of $17,500, contending that the award of such arrearages was an improper retroactive modification of child support obligations. We agree and reverse the finding of contempt.

It is undisputed by the parties that Arnita Thorpe gave birth to Rose’s child in September 1991, and, with the assistance of the Georgia Department of Human Resources, Thorpe obtained a consent order from the Superior Court of DeKalb County against Rose in June 1992 requiring the payment of $460 a month for child support. Then, on May 22, 1997, Thorpe filed a complaint for a modification of child support in the Superior Court of Fulton County, contending that the support payments should be increased to reflect the growth of Rose’s income and the needs of the child. In addition, Thorpe contended that Rose had fraudulently under-reported his income in 1992 when the original child support order was entered, and she asked the trial court to award arrearages.

In response, on September 10, 1997, the trial court increased Rose’s monthly payment to $950, and, finding that Rose had wilfully under-reported his income since 1992, the trial court ordered him to pay “arrearages” in the amount of $17,500. Rose failed to pay the latter, and, in an order dated November 19, 1997, the trial court found Rose in contempt of its September 10 order. It is this finding of contempt which Rose now appeals.

As an initial matter, Thorpe chose the wrong type of action for the recoupment of support by an obligor due to under-reporting of income. Rather than a petition for modification, which governs only prospective changes in support payments, Thorpe should have made a motion to set aside. “A motion to set aside may be brought to set aside a judgment based upon . . . [fraud, accident, or mistake.” OCGA § 9-11-60 (d) (2). Any such motion, however, could have been made only within three years of the entry of the original judgment. OCGA § 9-11-60 (f).

As Thorpe petitioned the trial court only for modification of support payments, her remedies are limited to prospective alterations of Rose’s support obligations. And because the trial court’s order requiring that Rose make back payments is tantamount to a retroactive modification of a child support obligation, neither the requirement to pay nor the contempt sanctions for nonpayment may stand.

Decided November 16, 1999.

Alonzo Nelson, for appellant.

Arnita Thorpe, pro se.

A permanent child support judgment is res judicata and enforceable until modified, vacated or set aside. Until a final decree amending the child support is properly entered in the modification proceeding the permanent judgment stands. A child support judgment cannot be modified retroactively.

(Citations and punctuation omitted.) Jarrett v. Jarrett, 259 Ga. 560, 561 (1) (385 SE2d 279) (1989).

In this case, even if we assume that Rose under-reported his income, the $17,500 lump payment required by the trial court cannot be truly classified as past due “arrearages” because the original support order required that Rose pay only $460 a month, which he did. A child support obligation may be modified on a prospective basis only, and, by determining that the amount of past payments was insufficient, the trial court improperly modified the support obligation on a retroactive basis, thereby increasing past payments on a monthly basis. Therefore, we must reverse the trial court’s requirement that Rose make back payments totaling $17,500 and its finding of contempt for nonpayment of this amount.

We must point out that the holding in this case affects only the trial court’s finding that Rose owed “arrearages” and its imposition of sanctions for contempt for nonpayment of this amount. As a prospective modification of Rose’s child support obligation, the trial court’s increase of Rose’s monthly payments to $950 remains valid and binding.

Judgment reversed.

Eldridge and Barnes, JJ, concur.


author: Eldridge, Judge.

text:
    A99A1234.
    In re STROH et al.
    (523 SE2d 887)
   Eldridge, Judge.

This case involves the Echols County Superior Court’s denial of an adoption petition filed by an Alabama couple, Allan G. and Brenda Stroh, appellants. For the reasons stated herein, we affirm the trial court’s denial of the adoption of the child, T. M. G., but reverse the trial court’s refusal to grant custody of the child to the appellants while they pursue an adoption in Alabama.

The undisputed facts of this case are as follows: T. M. G. was born in Georgia on January 30, 1996. His mother, C. L. G., was not married to the child’s putative father, K. J. In 1993, C. L. G. had given birth to a girl, A. D. S., in Alabama. The appellants adopted the girl as an infant.

When T. M. G. was approximately two months old, the Georgia Department of Human Resources (“DHR”) obtained temporary custody of the child; the record is not perfected as to the basis for such custody. The DHR placed the child with a foster family, the Edmonsons (hereinafter “foster family”). The DHR, through the Echols County Department of Family & Children Services (“DFCS”), worked with C. L. G. in developing a reunification plan. Six months later, at a September 1996 hearing pursuant to a DFCS motion to extend temporary custody for one year, C. L. G. signed a document entitled “Acknowledgment of Surrender of Rights,” allegedly surrendering her parental rights to T. M. G. and releasing him for adoption. The circumstances surrounding the signing of the alleged surrender (hereinafter “DHR surrender”) are in dispute. However, it is undisputed that no surrender document was executed; the acknowledgment form was not dated; and the required affidavit from the DHR official supervising the DHR surrender was not attached. See OCGA §§ 19-8-4 (h); 19-8-26 (a), (j). Further, the record shows that, even though the DHR asserted that it had a valid surrender of C. L. G.’s parental rights in September 1996, the DHR did not pursue a permanent placement for this child or the termination of the putative father’s rights, nor did the foster family pursue an adoption, during the next six months.

In the meantime, in July 1996, the appellants became aware of the birth of T. M. G. through the half-sister’s former guardian ad litem, with whom they had worked during that adoption. The couple began adoption proceedings in Georgia and filed a petition for adoption in February 1997. In the same petition, the appellants asked the trial court for a temporary restraining order to prevent the DHR from placing the child for adoption or participating in any adoption proceedings on anyone else’s behalf until their adoption petition could be ruled upon. The temporary restraining order was issued on February 27, 1997.

On March 5, 1997, C. L. G. signed a surrender of parental rights and release for adoption pursuant to OCGA § 19-8-5 (hereinafter “Stroh surrender”). The Stroh surrender clearly identified the appellants as the individuals to whom C. L. G. released her parental rights, giving the appellants 60 days during which to file an adoption petition. See OCGA § 19-8-5 (k). As such petition previously had been filed, the appellants filed an amendment to the petition on April 11, 1997, attaching the Stroh surrender and accompanying affidavits by C. L. G.

A notice was published in April and May 1997, notifying the putative father, K. J., of the pending adoption action. K. J. subsequently was personally served while incarcerated in Florida. On May 9, 1997, K. J. responded to the service by denying paternity of T. M. G. and demanding a blood test. On June 2, 1997, the DHR moved to intervene in the adoption petition under OCGA § 9-11-24 (a) (2), asserting that, “unless it is allowed to intervene, the State’s interest in protecting the best interests of the minor child, [T. M. G.], will not be adequately represented by the existing parties to the action.” The DHR claimed that, because it had temporary custody of the child pursuant to the March 1996 juvenile court order, it

had an interest in the outcome of this pending adoption case[,] has insufficient information to determine if [the appellants] are the fit and. proper persons for adoption of the minor child, [T. M. G.], and whether or not it would not [sic] be in this child’s best interests for the adoption to proceed.

On the same date, the DHR moved the trial court to appoint a guardian ad litem, alleging that “the child’s interests are in conflict with the [appellants’] interest and it would be in the best interest of the child for a guardian ad litem to be appointed.” See OCGA § 19-8-17 (c).

A hearing was conducted on June 23, 1997. During the hearing, the appellants requested that the trial court consider the adoption a “private adoption” premised upon the mother’s surrender of rights to them. The appellants also asked the trial court to exclude the DHR and the foster family from the case and proceed exclusively on the private adoption petition.

The trial court denied the appellants’ request to declare their petition a private adoption, granted the DHR’s motion to intervene, and appointed a guardian ad litem. The trial court also told the foster family that, if they wanted to adopt T. M. G., they had permission to either move to intervene in the current petition or file a separate adoption petition.

On August 6, 1997, the appellants filed a second amendment to the petition requesting, as an alternative to granting the Georgia adoption petition, that the trial court grant custody of T. M. G. to the appellants for one year so that they could complete an adoption in Alabama. Five months later, the trial court scheduled a final trial on the adoption petition for February 16, 1998. However, in January 1998, the trial was stayed indefinitely so that the DHR could file a petition for termination of both parents’ rights to the child, even though the DHR continued to assert that C. L. G. had validly surrendered her parental rights to them in September 1996.

On May 12, 1998, the foster family filed a petition to adopt T. M. G., 11 months after having received permission to do so by the trial court. The final hearing on both the appellants’ petition and the foster family’s petition was held on July 16, 1998. During the hearing, the trial court heard testimony from both couples, as well as numerous friends and neighbors. The appellants presented evidence which showed the following: they had been married to each other for 22 years; they adopted T. M. G.’s half-sister in 1993 in Alabama; they own a five-bedroom house on five acres in Montgomery, Alabama; Mr. Stroh owns and operates several radio stations; Mrs. Stroh is a homemaker; they are active in their church; they are both in good health; and they are financially stable, with adequate health insurance coverage. The foster family also presented evidence regarding their adoption petition.

After the close of evidence regarding the fitness of the two families, the trial court remarked that

I feel comfortable in saying to everyone here today that regardless of what the ruling of the court is, that ruling will not depend on the fitness or unfitness of one party as opposed to the other necessarily. I don’t think there’s been any evidence submitted today to suggest in any way that neither one of these couples would make an excellent parent for the child.

The trial court then heard evidence regarding the validity of the mother’s DHR surrender and the subsequent Stroh surrender. The mother, C. L. G., testified that, at the time she signed the DHR surrender, she was told by the DHR representative that the appellants would be able to adopt T. M. G. once she signed the papers. She stated that “I signed [the DHR surrender] because I wanted my son to be with his sister with the Strohsf,]” and that she would not have signed the DHR surrender otherwise. She then testified that she assigned to the appellants her rights to T. M. G. and gave permission to adopt him on March 5, 1997, and that she still wanted the appellants to adopt him. The DHR countered this evidence with testimony from the DHR representative who supervised the DHR surrender in September 1996. The DHR representative testified that C. L. G. did not request any specific placement when she signed the DHR surrender.

The trial court denied the foster family’s adoption and dismissed the petition on August 26, 1998, finding that the petition failed to comply with the statutory requirements under OCGA § 19-8-4, § 19-8-5, or § 19-8-13.

In a separate order dated the same day, the trial court denied the appellants’ petition, finding that the fact that the appellants were not Georgia residents for the six-month statutory period under OCGA § 19-8-3 (a) (3) mandated denial of the petition. In its order, the trial court specifically found that the appellants had adopted T. M. G.’s half-sister, presented evidence that they could provide T. M. G. a good home, and had secured a surrender from C. L. G. The trial court also found that C. L. G. preferred that the appellants adopt T. M. G. The trial court’s order did not address the appellants’ request for temporary custody of T. M. G. so that they could pursue an Alabama adoption.

On September 22, 1998, the appellants filed a motion for reconsideration, asking the trial court to address their request for custody pending an Alabama adoption. In December 1998, the trial court granted the motion to reconsider, voided the previous order, and issued a new order. In the revised final order, the trial court denied the appellants’ request for custody, finding that, because C. L. G. had “executed all documents necessary for the placement of [T. M. G. with DFCS],” custody should remain with the DHR/DFCS and the agency should proceed with placing T. M. G. for adoption. The appellants timely appealed from this order. Held:

1. In their first enumeration, the appellants contend that the trial court abused its discretion in refusing to grant them custody of

T. M. G. pending adoption, pursuant to the Interstate Compact on the Placement of Children (“Interstate Compact”), OCGA § 39-4-1 et seq. We agree.

(a) As an initial matter, this Court reluctantly affirms the trial court’s determination that OCGA § 19-8-3 (a) (3) requires the denial of the appellants’ adoption petition. See H. C. S. v. Grebel, 253 Ga. 404, 405 (321 SE2d 321) (1984). The uncontradicted evidence showed that the appellants were not residents of Georgia for the requisite six months prior to filing the adoption petition.

(b) However, the trial court abused its discretion in refusing to place the child in Alabama pending adoption. In reaching such conclusion, this Court reviewed the case from the onset of the DHR’s custody in March 1996 to establish the legal status of T. M. G, the appellants, and the DHR prior to the final hearing in July 1998.

(i) The surrender of rights to the DHR. The trial court found that C. L. G. had executed all documents necessary to surrender her rights to the DHR, thereby indicating, without expressly finding, that such surrender was valid. However, such conclusion was error as a matter of law.

“The requirements of the adoption statute are mandatory and should be strictly construed and meticulously followed so that beyond all peradventure the adoption will not later be subject to attack.” (Citations and punctuation omitted.) Tyson v. Dept. of Human Resources, 165 Ga. App. 414, 415 (301 SE2d 485) (1983). See also Johnson v. Smith, 251 Ga. 1, 3 (302 SE2d 542) (1983); Bozeman v. Williams, 248 Ga. 606 (285 SE2d 9) (1981); Nelson v. Taylor, 244 Ga. 657 (1) (261 SE2d 579) (1979). However, the executed forms may vary slightly from those presented in OCGA § 19-8-26, as long as they substantially conform to the statutory text.

In this case, the record does not contain the “Surrender of Rights — Final Release for Adoption” form, required under OCGA § 19-8-26 (a). The absence of this essential form invalidates this surrender as a matter of law.

In addition, under OCGA § 19-8-4 (h), “[w]henever rights are surrendered to the department or to a child-placing agency, the department or agency representative before whom the surrender is signed shall execute an affidavit meeting the requirements of subsection (j) of Code Section 19-8-26.” See also Tyson v. Dept. of Human Resources, supra. Such affidavit affirms that the person signing the surrender form “knowingly, intentionally, freely, and voluntarily” surrendered all rights to the child. OCGA § 19-8-26 (j). It is undisputed that this affidavit was not attached to the acknowledgment form, and no such affidavit appears in the record of this case. The absence of this affidavit is particularly significant in this case, as the circumstances surrounding the signing of the DHR surrender are in dispute. The mother, C. L. G., testified at the final hearing that she clearly expressed her desire for the child to be placed with the appellants and was assured by DHR officials that such placement would take place. This understanding is also reflected in C. L. G.’s affidavit, which was attached to the Stroh surrender. However, DHR claims that no such assurance was given; that C. L. G. initiated the DHR surrender that day; and that C. L. G. seemed unconcerned about the eventual placement of the child. Under the circumstances, the DHR affidavit attesting to the voluntariness and intent of the surrender was a necessary attachment to the surrender, and the absence thereof invalidates the document. See Bozeman v. Williams, supra (surrender was invalid when it was not dated, notarized, or accompanied by an acknowledgment of rights being surrendered); Tyson v. Dept. of Human Resources, supra (surrender was invalid when wrong form was utilized).

In addition, the DHR surrender document was undated, a singular defect which may not have invalidated it but, coupled with the missing surrender form and DHR affidavit, clearly demonstrates that the surrender documents did not “conform substantially” to the statutory requirements. See OCGA § 19-8-26 (g), (j). As such, this alleged surrender was legally insufficient and, therefore, invalid as a matter of law.

(ii) The Stroh surrender. In contrast, the Stroh surrender was legally valid, in that it was in substantial compliance with the requirements of OCGA §§ 19-8-5 and 19-8-26. Since C. L. G. did not execute a valid surrender to the DHR, she retained her parental rights and was able to subsequently voluntarily surrender those same rights to the appellants, vesting standing in the appellants to seek physical custody of T. M. G. immediately.

Although the DHR did not challenge the Stroh surrender directly, asserting only that the prior DHR surrender invalidated any subsequent surrender of rights, we note that the Stroh surrender also was missing affidavits by C. L. G. and the appellants as to whether the surrender was executed knowingly and voluntarily. See OCGA § 19-8-26 (g), (k). However, C. L. G. never contested the validity of the Stroh surrender but, instead, reaffirmed at the final hearing her intention to release the child to the appellants and consent to their adoption of T. M. G.; this affirmation constituted the substantial equivalent to the missing affidavits. Accordingly, the absence of the affidavits did not invalidate the Stroh surrender. Mabou v. Eller, 232 Ga. App. 635 (502 SE2d 760) (1998); Lee v. Stringer, 212 Ga. App. 401, 402 (1) (441 SE2d 861) (1994) (surrender was valid even though certain specific statutory language was missing, as it was “mere surplusage” under the circumstances of the case).

(iii) The termination of the mother’s parental rights. Since C. L. G. voluntarily and completely released her parental rights to the appellants and consented to their adoption of T. M. G., the State’s subsequent termination of C. L. G.’s rights was void ab initio, as was the permanent placement of custody in the DHR following such termination. See OCGA §§ 15-11-80 et seq.; 19-7-1 (b) (2); 19-8-5.

Therefore, at the time of the final hearing, the DHR only retained temporary custody of the child pending adoption by the appellants and never secured permanent custody. The filing of the appellants’ adoption petition pursuant to the valid surrender should have caused the DHR to initiate an investigation on the petition in anticipation of the adoption by the appellants, as required by OCGA § 19-8-16 (a), and to pursue the termination of the putative father’s parental rights in a timely manner. See OCGA § 19-8-11 (a) (2). It is undisputed that the DHR did neither. It is also clear from the record that this failure to act was the major cause of a delay in the adoption proceedings from February 1997, when the appellants’ adoption petition was filed, until July 1998, when the final hearing was conducted. During this time, T. M. G. remained in foster care in Georgia.

(c) Since the appellants obtained a valid surrender but were legally precluded from adopting in Georgia, it is clear that the trial court should have transferred custody to them in order to assist in their pursuit of an Alabama adoption. Such action would have been consistent with the Interstate Compact, the Uniform Child Custody Jurisdiction Act, other Georgia statutes, Georgia’s public policy, and the best interest of T. M. G.

(i) The Interstate Compact. Under Georgia’s Interstate Compact, “ [i] t is the purpose and policy of the party states to cooperate with each other in the interstate placement of children” so that each child receives the maximum opportunity to be placed in a suitable environment or home. OCGA § 39-4-4, Art. I (a). Further, the Interstate Compact provides a mechanism for states which are cooperating in an interstate adoption to ascertain the facts and circumstances of the proposed adoption, including allowing the opportunity for the sending state to “obtain the most complete information on the basis of which to evaluate a projected placement before it is made.” OCGA § 39-4-4, Art. I (b), (c). See also OCGA §§ 39-4-4, Art. V (b); 39-4-10. Under this provision, “ [appropriate jurisdictional arrangements for the care of children will be promoted.” OCGA § 39-4-4, Art. I (d). In addition, “[t]he provisions of this compact shall be liberally construed to effectuate the purposes thereof.” OCGA § 39-4-4, Art. X.

Notably, OCGA § 19-8-5 (1) requires that, in any surrender of parental rights to the DHR, the provisions of the “Interstate Compact on the Placement of Children, if applicable, shall be complied with.” See also OCGA § 19-8-4 (j) (same provision applies to surrenders to DHR or a child placement agency). Clearly, the Interstate Compact provides the statutory authority under which the DHR could have obtained necessary information for its pre-adoption investigation. The DHR could then have notified Alabama of the pending interstate placement and obtained the state’s consent, as required by the Interstate Compact, OCGA § 39-4-4, Art. III.

Further, once T. M. G. was transferred to Alabama pursuant to the Interstate Compact, Georgia would have retained jurisdiction over the child “sufficient to determine all matters in relation to the custody, supervision, care, treatment and disposition of the child which it would have had if the child had remained” in Georgia until the Alabama adoption was final. OCGA § 39-4-4, Art. V (a). Such jurisdiction includes the “power to effect or cause the return of the child” to Georgia. Id. Therefore, if the appellants did not file a timely adoption petition in Alabama, or if the Alabama adoption was not finalized, the trial court would be authorized to return the child to Georgia and place the child in the DHR’s custody. See OCGA § 19-8-5 (k). DHR would then have the responsibility of placing the child for adoption by other interested individuals. OCGA §§ 19-8-4; 19-8-5 (k); 15-11-90 (d). Accordingly, even after the placement of T. M. G. in Alabama, Georgia would retain the ability to supervise and protect the child until adoption. Under these circumstances, the trial court should have ordered the DHR to act under the Interstate Compact to effectuate the placement of T. M. G. with the appellants.

(ii) The Uniform Child Custody Jurisdiction Act. Further, since the appellants were not eligible to adopt T. M. G. in Georgia, their only opportunity for such adoption was in Alabama’s courts. However, since T. M. G. has resided in Georgia his entire life, Georgia has exclusive personal jurisdiction over T. M. G.’s custody under the Uniform Child Custody Jurisdiction Act (“UCCJA”), OCGA § 19-9-40 et seq. The UCCJA applies to adoption proceedings and is to be construed in pari materia with other statutory provisions regarding child custody and adoption. OCGA § 19-9-42 (3); see also Gainey v. Olivo, 258 Ga. 640, 641 (373 SE2d 4) (1988); Gambrell v. Gambrell, 246 Ga. 516, 517 (272 SE2d 70) (1980).

Under the UCCJA, Alabama can obtain jurisdiction over T. M. G. only if Alabama is his “home state” for at least six months prior to the adoption. Alabama Code § 30-3-22 (5); see also OCGA §§ 19-9-42 (5); 19-9-43 (a) (1) (A). Therefore, unless T. M. G. is placed in Alabama pursuant to the appellants’ amended petition, the only way they will be able to adopt the child would be to establish residency in Georgia, pursuant to OCGA § 19-8-3 (a) (3), at least six months prior to filing a new adoption petition. As the appellants have demonstrated that they have a stable, long-term residency in Alabama, and because the Interstate Compact and the UCCJA provide other options, imposing such relocation as a condition precedent to adoption is per se unreasonable and against the public policy of Georgia.

(iii) Public policy and other statutory provisions. The public policy of Georgia is clear that, when possible, individuals with blood relationships should be kept together. This policy is codified in OCGA § 15-11-90 (a) (1), which states that if “there is no parent having parental rights, the court shall first attempt to place the child with the child’s extended family or with a person related to the child by blood or marriage.” The appellants in this case are the adoptive parents of T. M. G.’s only identified blood relative, his half-sister. It is consistent with the public policy of this state that T. M. G. be placed in the same home so that the children may be raised as siblings.

(iv) The best interest of the child. The only remaining issue, therefore, is the determination of whether such placement is in the child’s best interest. OCGA § 19-8-18 (b). Although the trial court has substantial discretion in making a determination as to this issue, this Court notes that the trial court did not make any findings regarding T. M. G.’s best interest. Instead, the trial court found that, since the DHR had permanent custody of the child pursuant to the termination of both parents’ rights, the agency should retain custody and proceed with placing the child for adoption.

However, this Court previously determined that the appellants had secured a valid surrender from C. L. G. and that the DHR never had more than temporary custody of T. M. G. pending adoption. See Division 1 (b), supra. Further, the record clearly demonstrates that the appellants are “capable of assuming responsibility for the care, supervision, training, and education of the child,” OCGA § 19-8-18 (b), and would be eligible to adopt but for the OCGA § 19-8-3 (a) (3) residency requirement. The guardian ad litem interviewed individuals in Georgia and Alabama and concluded that the appellants would provide an “excellent” home for T. M. G. Although the evidence indicated that the foster family had bonded to some extent with T. M. G. during their two and one-half year relationship, such evidence is not dispositive, since the evidence also demonstrated that the child would not have remained in the foster family’s custody for this length of time if the DHR had not unreasonably delayed the pursuit of this adoption. This child should not lose the opportunity to be raised as a sibling to his half-sister by a clearly qualified couple due to bureaucratic delays and avoidable mistakes. The alternative to placing this child with the appellants would be to keep the child in foster care until adopted by another couple. Under the circumstances of this case, it is clearly in T. M. G.’s best interest to be placed with the appellants while they pursue an Alabama adoption.

Therefore, this Court finds that the trial court abused its discretion in refusing to grant the appellants custody of T. M. G. while they pursue an Alabama adoption. We remand this case to the trial court with direction to grant the appellants’ petition for custody pending such adoption. This Court further directs the DHR to cooperate with Alabama authorities to obtain that state’s consent regarding this transfer of custody and to assist Alabama as necessary to effectuate the proposed adoption.

2. The appellants also challenge the trial court’s refusal to consider their adoption petition a “private” or independent adoption, i.e., one that is accomplished when parental rights to a child are surrendered to a third party pursuant to OCGA § 19-8-5. Under such arrangement, the third party has 60 days in which to file an adoption. OCGA § 19-8-5 (k). Except in cases of excusable neglect, if no petition is filed within 60 days, the surrender transfers to the DHR, which assumes custody and places the child for adoption through its standard procedures. Id.

Having previously found that the Stroh surrender was valid, this Court finds that the appellants’ petition should have been considered a private adoption under OCGA § 19-8-5. However, the appellants have failed to demonstrate how a “private adoption” status would have altered the trial court’s determination that, as non-residents, they were not eligible to adopt in Georgia under OCGA § 19-8-3 (a) (3). Accordingly, the trial court’s refusal to consider the petition a private adoption does not require reversal of its denial of the adoption.

3. In their third enumeration, the appellants assert that the trial court erred in allowing the DHR to intervene in this action. Even though this Court has given specific directions for the trial court upon remand, the status of the DHR in this action must be addressed.

In Division 1 (b) (iii), supra, this Court found that the DHR never acquired more than temporary custody of T. M. G. pending adoption. Although the DHR claimed that it had an interest in the matter that could not be protected absent its intervention, “the requirements for intervention under [OCGA § 9-11-24 (a) (2)] are three-fold: interest, impairment resulting from an unfavorable disposition, and inadequate representation.” (Citations and punctuation omitted.) Kubler v. Goerg, 197 Ga. App. 667, 668 (1) (399 SE2d 229) (1990).

Without deciding whether the DHR’s temporary custody arose to an “interest” that would fulfill the first requirement, we find that there is no evidence that such interest would be impaired by the disposition of this case. The DHR had temporary custody pending adoption by the appellants, so that a successful adoption by the appellants would have ended its interest in the case. This result is not an impairment but is, in fact, the desired result of DHR’s assuming temporary custody. See OCGA § 49-5-8 (a) (7). In the event that the adoption was not completed, custody would be vested in the DHR, which could then place the child for adoption. See OCGA §§ 19-8-5 (k); 19-8-26 (c). Either way, the DHR’s “interest” in this child would not be impaired if intervention was denied.

Further, as to whether the DHR’s role in protecting the child would have been compromised because of inadequate representation, the DHR has presented no authority — and we have found none — that demonstrates that the DHR must be a party to an adoption petition in order to perform its statutory duties in investigating the adoption petition and making recommendations to the trial court. Contrary to the assertions of the DHR, there are several statutory mandates that provide the framework and authority for such investigation by the DHR, as well as protect the DHR’s ability to make nonbinding recommendations to the trial court regarding whether the adoption is in the best interest of the child. OCGA §§ 19-8-16 (a); 19-8-17 (a), (b); 49-5-8 (a) (7), (b), (c) (allows DHR to contract with another state “for the reciprocal provision of adoption assistance services!,]” including pre-adoption investigations); see also OCGA §§ 39-4-4, Art. V (b); 39-4-10. In addition, the trial court in this case appointed a guardian ad litem to protect the interest of the child.

Decided October 20, 1999

Reconsideration denied November 17, 1999

Saliba, Edwards & Moore, George M. Saliba II, for appellants.

Charles R. Reddick, for appellee.

Under these circumstances, the DHR was not entitled to intervene in this action under OCGA § 9-11-24 (a) (2), and the trial court abused its discretion in allowing such intervention.

4. The appellants’ remaining enumeration has been addressed in Division 1 (c) (iii), supra.

Judgment affirmed in part, reversed in part, and remanded with direction.

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

       For confidentiality reasons, the child, his sister, and his parents will be referred to by their initials.

       The couple explained to the trial court that they had attempted to file adoption papers earlier, but that their first attorney had failed to pursue it in a satisfactory manner.

       On March 26, 1997, the DHR moved to dismiss the adoption petition, claiming that they were a necessary and proper party to the adoption and had not been served with notice. The trial court did not rule on this motidn.

       According to the DHR, the Echols County Juvenile Court subsequently terminated the parental rights of both C. L. G. and the putative father, K. J., on June 9,1998.

       Under OCGA § 19-8-3 (a),
      [a]ny adult person may petition to adopt a child if the person: (1) [i]s at least 25 years of age or is married and living with his spouse; (2) [i]s at least ten years older than the child; (3) [h]as been a bona fide resident of this state for at least six months immediately preceding the filing of the petition; and (4) [i]s financially, physically, and mentally able to have permanent custody of the child.

       Alabama has no such residency requirement. Alabama Code § 28-10A-5.

       We note that the DHR implicitly recognized that the surrender was invalid when it later moved to terminate the mother’s parental rights, an action that would have been unnecessary if the surrender was valid.

       This Court will not rule as to the validity of the termination of the father’s parental rights since such determination is not before this Court.

       Although the DHR claimed that the appellants’ February 27, 1997 restraining order prevented them from conducting the mandatory pre-adoption investigation or from terminating the putative father’s rights, the language of the order only restrains the DHR from placing T. M. G. for adoption and assisting in his adoption by anyone other than the appellants.

       Alabama has adopted an almost identical provision, Alabama Code § 44-2-20 et seq.

       Alabama has adopted a similar version of the UCCJA, Alabama Code § 30-3-20 et seq.

       In addition to its reliance on the clearly invalid DHR surrender, its failure to act promptly to pursue an investigation on the appellants’ adoption petition or to terminate the putative father’s parental rights, and its misguided interpretation of the temporary restraining order, the DHR also repeatedly and incorrectly asserted that the juvenile courts had exclusive jurisdiction over this case. However, the superior court has exclusive subject matter jurisdiction over the adoption, as well as concurrent jurisdiction over the termination of parental rights, which was in connection with the adoption. OCGA §§ 15-11-5 (a) (2) (C) (prior to its amendment, which was effective July 1,1997, the statute also gave the superior court exclusive jurisdiction over terminations which were in connection with adoptions); 19-8-2 (a); H. C. S. v. Grebel, supra at 406 (1); In the Interest of D. L. N., 234 Ga. App. 123 (506 SE2d 403) (1998); In the Interest of B. G. D., 224 Ga. App. 124, 125 (1) (479 SE2d 439) (1996); Edgar v. Shave, 205 Ga. App. 337, 338 (1) (422 SE2d 234) (1992); see also Division 3, infra.

       See Edgar v. Shave, supra at 338-339 (2), (4) (wherein a grandmother with temporary custody of children had no right to intervene in pending adoption, which followed mother’s surrender of rights to adopting family); but cf. Drummond v. Fulton County Dept. of Family &c. Svcs., 237 Ga. 449, 458 (4) (228 SE2d 839) (1976) (DFCS was allowed to intervene in adoption petition because it stood in loco parentis after it obtained “all the legal rights of a natural parent” following termination of mother’s rights); In re Ashmore, 163 Ga. App. 194 (293 SE2d 457) (1982) (wherein this Court found that a private adoption agency, which had permanent custody of the child following the mother’s surrender of her rights, had an interest in the outcome of the father’s petition to legitimate, so that it had a right to intervene).


author: McMurray, Presiding Judge.

text:
    A99A1834.
    GATEFIELD CORPORATION v. GWINNETT COUNTY.
    (524 SE2d 553)
   McMurray, Presiding Judge.

Gwinnett County mistakenly condemned certain land owned by Gatefield Corporation (“Gatefield”). Because this error unfairly penalized Gatefield, this Court remanded the case sub judice to the trial court in Gatefield Corp. v. Gwinnett County, 234 Ga. App. 621, 622 (2) (507 SE2d 164), with directions for the trial court to conduct a hearing to determine an amount required to reimburse Gatefield for the actual and necessary expenses incurred by Gatefield as a result of the County’s error. Grady Smith, a major stockholder and vice-president of Gatefield, was the only witness who appeared at a hearing which the trial court conducted upon remand. Smith testified that Gatefield’s expenses for responding to the County’s condemnation action were $84,699.30. Smith explained that this total includes a $20,000 consulting fee to his brother, $28,030 in attorney fees, $3,862.50 for his own time, $733 for a transcript, $2,500 for an appraisal, an unspecified amount for property taxes paid while the property was “tied up for 2 years [,]” and an unspecified amount for damaged trees on Gatefield’s property. Smith admitted during cross-examination that Gatefield had not actually paid his brother’s $20,000 consulting fee; that this fee was based on a $10,000 per day rate; and that Gatefield retained Smith’s brother as a consultant because “[h]e’s been involved in a lot of law suits and condemnations and so he’s pretty educated.”

Decided November 4, 1999

Reconsideration denied November 17, 1999.

Harrison & Harrison, Gresham H. Harrison, for appellant.

Karen G. Thomas, Michael V. Stephens II, for appellee.

The trial court entered an order finding that Gatefield’s expenses amounted to $37,125.50. Gatefield filed this appeal, contending that the trial court erred in failing to adopt all of Smith’s testimony as the measure of Gatefield’s actual and necessary expenses. Held:

1. The trial court, sitting as a finder of fact, was not required to accept Smith’s testimony as the measure of Gatefield’s actual and necessary expenses because the question of damages relating to the expenses of litigation is a matter left solely to the finder of fact. Tab Sales v. D & D Distrib., 153 Ga. App. 779, 780 (2) (266 SE2d 558). See Hallman v. Emory Univ., 225 Ga. App. 247, 251-252 (3) (483 SE2d 362). Further, since we cannot say that Smith’s testimony was without possibility of bias or fault, we find that Gatefield has misplaced reliance on the rule that direct and positive testimony, which is not incredible, impossible, or inherently improbable, must not be arbitrarily rejected by a finder of fact. See OCGA § 24-4-7. Compare Thomas v. Lockwood, 198 Ga. 437, 445 (1) (31 SE2d 791); Western &c. R. Co. v. Beason, 112 Ga. 553, 555-556 (37 SE 863); Alexander v. Dealers Supply Co., 109 Ga. App. 375, 376 (136 SE2d 252).

2. Since the County has not filed a cross-appeal, we do not reach the County’s assertions that the evidence is insufficient to sustain the trial court’s findings regarding the measure of Gatefield’s actual and necessary expenses.

Judgment affirmed.

Johnson, C. J., and Phipps, J., concur.


text:
    A99A1940.
    BOGGS v. MADISON COUNTY et al.
    (524 SE2d 252)
   Eldridge, Judge.

Plaintiff-appellant Carol E. Boggs appeals pro se from a grant of summary judgment to defendant-appellee Madison County and adds as parties on appeal Nathanial Hobbs, Building Inspector; Leo Smith, Commissioner of Madison County; and the Madison County Planning & Zoning Commission. From a convoluted procedural history, we adduce the following facts:

Plaintiff owned a 72-foot-long mobile home that she wanted to move from Loganville to Madison County. In furtherance thereof, she purchased Lot 13 of the Madison Acres Mobile Home Subdivision. On May 3, 1994, plaintiff applied for a Madison County manufactured home permit. Such permit is required before a mobile home can be moved into Madison County and permanently set up. At the time she applied for the permit, defendant Nathanial Hobbs, Building Inspector, gave plaintiff a complete information package, which contained information regarding Madison County requirements for the set-up of a manufactured home, including foundation, set-back, and inspection requirements following set-up in order to ensure compliance with Madison County regulations. At the time that the permit was sought and pursuant to requirements, plaintiff brought in a plat of the subdivision. She showed Hobbs the plat and informed him that she intended to place her mobile home diagonally on Lot 13 and that such placement would comply with the county’s set-back requirements. Hobbs issued a permit to plaintiff, and, at that time, plaintiff signed such permit certifying that “[a] 11 provisions of laws and ordinances governing this type of work will be complied with.”

On June 5, 1994, plaintiff’s mobile home was transported to Lot 13 of the subdivision and placed diagonally on the lot. However, the immediately surrounding mobile homes were placed horizontally, facing the street. A county zoning ordinance required placement of plaintiff’s mobile home in a manner “for which a pattern has been established.” Before plaintiff’s mobile home could be tied down and set up permanently, her new neighbors called the Building Inspector’s office, complaining about the placement of plaintiff’s mobile home.

Because of the zoning ordinance, defendant Hobbs would not permit plaintiff to set up her mobile home diagonally on Lot 13. Hobbs informed plaintiff that he had forgotten the zoning ordinance at the time they discussed the placement of plaintiff’s mobile home and he issued the permit.

At her request, plaintiff was referred to Hobbs’ supervisor, Earl Cooper. Cooper gave plaintiff a copy of the minutes reflecting the action of the Board of Commissioners with regard to establishing the relevant zoning ordinance. The minutes stated:

A Motion was passed by the Board of Commissioners on March 08, 1994 to “grandfather” all subdivisions and manufactured home parks whose final plats were approved on or before December 31, 1993 thereby permitting the placement of [a] dwelling for which a pattern has been established or as intended by the subdivision developer or manufactured home park owner.

Cooper explained to plaintiff that, pursuant to this ordinance, county set-back requirements that would otherwise apply were excused in a manufactured home park affected by the action of the board. However, despite the fact that county set-back requirements need not figure in the placement of her mobile home, plaintiff still wanted to position her mobile home diagonally on Lot 13. At her request, plaintiff was next referred to Cooper’s immediate superior, Bill Madden, Chairman of the Board of Commissioners of Madison County.

Plaintiff met with Madden. At their meeting, he informed plaintiff that she would need to seek a zoning variance with the County in order to place her mobile home diagonally on the lot and that it would take six months to a year for such variance request to be placed on the Planning & Zoning Commission’s calendar and decided upon.

Thereafter, on June 29, 1994, plaintiff filed a pro se suit against defendants for breach of contract. Plaintiff’s complaint was premised on the notion that the county issued the mobile home permit knowing that she intended to place her mobile home diagonally on Lot 13; that the mobile home permit was a contract between plaintiff and the defendants which authorized such diagonal placement; that plaintiff moved her mobile home to Madison County in reliance on such contract; and that the contract was breached when the diagonal set-up of the mobile home was denied. Defendants filed a motion for summary judgment on plaintiff’s contract action, alleging: (1) a mobile home permit is not a contract; and (2) plaintiff signed the permit certifying that she would comply with “[a] 11 provisions of laws and ordinances,” which included the zoning ordinance in question.

However, prior to a ruling on defendants’ motion, and with the consent of all parties, the trial court permitted plaintiff to: dismiss with prejudice her complaint against defendants Hobbs, Smith, and the Zoning Commission; join Madison County as a new party defendant; and pursue her complaint as one for inverse condemnation against Madison County.

Plaintiff then amended her complaint as one for inverse condemnation and claimed that Madison County “exceeded its police powers by granting a building permit, permitting the Plaintiff to rely on it and then, arbitrarily, withdrawing the permit, citing an ordinance requirement of set-back lines which it had capriciously enforced in the past.”

Madison County filed a motion for summary judgment on plaintiff’s inverse condemnation action, claiming: (1) plaintiff failed to exhaust administrative remedies prior to the filing of her suit in that she failed to seek a zoning variance; and (2) plaintiff failed to show that the zoning ordinance was invalid in that it was unrelated to a public benefit. The trial court granted summary judgment to Madison County on plaintiff’s inverse condemnation action. Held:

Plaintiff, again pro se, filed the instant appeal. As best we can decipher, plaintiff now alleges that Madison County — along with Building Inspector Hobbs, Commissioner Smith, and the Madison County Planning & Zoning Commission — committed acts of negligence against her. In her brief to this Court, plaintiff contends:

Mr. Hobbs [’] negligence in issuing [a] permit cause [d] extreme damages, financial punitive, structural, making liable the County, its agents, by tort law. . . . All of these, especially Mr. Hobbs [,] took money for Plaintiff’s permit and told her she had met any and all restrictions. Obvious negligence and wrongful act causing hardships, structural damages, financial and punitive damages. Tort law applies here.

By asserting on appeal new theories of tort liability on the part of Madison County (and others), which contentions were neither raised nor ruled upon in the court below, plaintiff has failed to allege any basis for review by this Court.

Decided October 28, 1999

Reconsideration denied November 17, 1999.

Carol E. Boggs, pro se.

McLeod, Benton, Begnaud & Marshall, Andrew H. Marshall, Michael C. Pruett, for appellees.

An appellant cannot travel on one ground below, find the wind blowing in another direction, change tack, and head elsewhere on appeal. Where the objection urged below is not argued here it must be treated as abandoned, and where an entirely different basis of objection is argued on appeal which was not presented at trial, we will not consider this as error, for we are limited on appeal to those grounds presented to and ruled upon by the trial court and then enumerated as error.

(Citations and punctuation omitted.) Ga. Farm &c. Ins. Co. v. Blackburn, 223 Ga. App. 423, 424 (480 SE2d 848) (1996). Accordingly, plaintiff’s tort theory of liability presents no grounds for reversing the trial court’s grant of summary judgment to Madison County on plaintiff’s inverse condemnation claim.

Judgment affirmed.

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

       These requirements are 20 feet from property lines and 50 feet from the center of the road.

       Plaintiff stated that “[b]ecause of the large tree and the length of [the] trailer, it had to fit diagonally” on the lot.

       Plaintiff then relocated her mobile home to land she subsequently purchased in Lexington, Georgia; she moved in at the beginning of September 1994. The finance company released plaintiff from liability on her contract to purchase Lot 13 of Madison Acres, and plaintiff’s down payment thereon was returned to her.

       “An action for the value of private property taken or damaged for a public purpose is not, in the ordinary parlance, either a tort or a contract; it is simply a constitutional right which the citizen may not be denied.” (Citations omitted.) C.F.I. Constr. Co. v. Bd. of Regents &c. of Ga., 145 Ga. App. 471, 476 (4) (243 SE2d 700) (1978).


author: Blackburn, Presiding Judge. Barnes, Judge,

text:
    A99A1584.
    CITY OF EAST POINT v. SEAGRAVES et al.
    (524 SE2d 755)
   Blackburn, Presiding Judge.

The City of East Point (City) appeals the trial court’s order requiring it to pay former employees, Louis P. Seagraves and Lawrence E. Daniels, compensation for unused sick days from January 1, 1979, to the date of their retirement. Based on agreement by the parties, the trial court decided the case on briefs submitted. The trial court determined that Seagraves and Daniels had a vested right in compensation for their unused sick days and that the impairment clause of the Georgia Constitution precluded the application of a 1979 ordinance which changed the City’s policy on payment for unused sick days. The City contends that the trial court erred by: (1) failing to consider whether the statute of limitation barred Sea-graves’ and Daniels’ claims and (2) finding that the impairment clause of the Georgia Constitution prohibited the City from changing its policy regarding payment for unused sick days. For the reasons set forth below, we reverse.

When Seagraves and Daniels began employment with the City in the early 1970s, the governing ordinance granted compensation to employees for all unused sick days upon their retirement. In 1979, the City amended the Code of Ordinances to provide that unused sick leave accrued after December 31,1978, would not be compensated for at retirement. Seagraves and Daniels retired in August 1993 and June 1995, respectively, at which time, they were paid for unused sick leave accrued prior to December 31, 1978. They were not compensated for any accrued after the date of the new ordinance.

1. Although in its enumeration of error the City contends that Seagraves’ and Daniels’ claims were waived, it argues in its brief that the waiver is based on the expiration of the statute of limitation. In order to fairly consider the City’s contentions, we will address this enumeration of error. Seagraves and Daniels contend that their right to be compensated for all unused sick leave during their employment with the City vested in them when they began working under the terms of the 1966 City ordinance. Their complaint raises breach of contract claims.

In City of Lafayette v. Bates, 234 Ga. App. 662 (507 SE2d 252) (1998), a retired city employee sued the city seeking payment for unused sick leave. During his tenure with the city, the ordinance providing for payment of unused sick leave was amended and eventually phased out altogether. Id. We determined that Bates was required to file suit within the six-year statute of limitation for breach of contract. OCGA § 9-3-24. We held that “[t]he City’s obligation to pay for unused sick leave would have arisen effective upon the date of the policy’s enactment” (Emphasis supplied.) City of Lafayette v. Bates, supra at 662. Additionally,

[i]n contract actions the time of the breach controls, not the time the actual damages result or are ascertained. R. L. Sanders &c. Co. v. Miller, 153 Ga. App. 225, 226 (1) (264 SE2d 731) (1980). As held in Mobley v. Murray County, 178 Ga. 388 (1) (173 SE 680) (1934), “the true test to determine when the cause of action accrued is ‘to ascertain the time when the plaintiff could first have maintained his action to a successful result.’ ” Actual damage is not essential, but the right of action has its inception upon the breach of duty.

Gamble v. Lovett School, 180 Ga. App. 708, 710 (350 SE2d 311) (1986). Therefore the breach, if any, in the present case occurred in 1979 when the ordinance granting the benefits was repealed. “Here, although the monetary damage was yet to come, the contract was breached when the security was lost, more than six years before the action was brought.” Id. This is consistent with our holding in City of Lafayette v. Bates. Both Seagraves and Daniels continued to work without objection to the policy change well beyond six years from the date of amendment in 1979. For this reason, Seagraves’ and Daniels’ claims are barred by the statute of limitation.

Seagraves and Daniels erroneously argue that their claims cannot be barred by the expiration of the statute of limitation because the impairment clause does not raise an action for breach of contract, but is a separate and distinct claim altogether. However, Georgia courts have historically treated impairment clause cases as breach issues. City of Lafayette v. Bates, supra. See also Murray County School Dist. v. Adams, 218 Ga. App. 220 (461 SE2d 228) (1995); Pulliam v. Ga. Firemen’s Pension Fund, 262 Ga. 411 (419 SE2d 918) (1992); City of Athens v. McGahee, 178 Ga. App. 76 (341 SE2d 855) (1986).

The special concurrence does not disagree with the analysis in this division, it merely contends that the issue is not ripe for consideration by this Court. However, the issue is appropriately addressed herein because it demonstrates the procedural pitfalls of litigation involving retirement benefits. Determining the application of the statute of limitation is essential in this type of case and gives necessary guidance to the bench and bar. Our Supreme Court has recently indicated its dissatisfaction with this Court’s hypersensitivity to technical rules as a basis for not addressing issues before this Court. See Felix v. State, 271 Ga. 534 (523 SE2d 1) (1999), reversing 234 Ga. App. 509 (507 SE2d 172) (1998).

2. Additionally, regardless of whether Seagraves’ and Daniels’ claims are barred by the expiration of the statute of limitation, they are substantively without merit.

The trial court’s ruling was based on an erroneous finding that the City ordinances were part of the Retirement Benefits Plan (Retirement Plan) to which the plaintiffs had made monetary contributions. The trial court reasoned that benefits under a government retirement plan vest if the employee contributes to the benefits to be received and if services are performed by the employee during the effective dates of the law granting those benefits.

The trial court’s reasoning was correct with regard to retirement benefits. See City of Athens v. McGahee, supra. However, in the present case, the City’s policy of paying for unused sick leave was separate and distinct from the City’s retirement plan. The Retirement Plan is found in the City Charter, and sick leave benefits were provided for in the Code of Ordinances. While Seagraves and Daniels made monetary contributions to their retirement fund, they concede that there is no reference in the Retirement Plan to sick leave benefits and that they made no contributions to benefits under the sick leave plan. They contend, however, that the ordinances integrate sick leave benefits into the retirement benefits. The ordinances do not integrate sick leave benefits and only refer to retirement as a reference point. This is a logical inclusion since it is impossible to know how many total unused sick days a person will have until he reaches retirement. Thus, the ordinance’s reference to retirement is a matter of administrative convenience rather than an attempt to integrate it with the Retirement Plan. Sick leave benefits were not part of the Retirement Plan. Seagraves and Daniels did not make financial contributions for sick leave benefits.

Moreover, even if the unused sick leave policy was part of the Retirement Plan, under these facts the employees would not have a vested right to those benefits. The Retirement Plan, Article XIII of the City Charter, provides:

the employer expects the plan to be continued indefinitely but, of necessity, reserves the right to terminate the plan and contributions thereunder at any time by action of the governing authority. Such termination shall be accomplished by the adoption of an ordinance by the governing authority terminating the plan.

A statute similar to this provision was at issue in Pritchard v. Bd. of Commrs. of Peace Officers Annuity &c., 211 Ga. 57, 59 (84 SE2d 26) (1954), wherein the Court held that a state employee “should not have any vested right to annuities or benefits,” where the act creating benefits states that it is subject to legislative change. This principle was reaffirmed by the Supreme Court, when it held that rights to employee benefits arise “because they become part of the contract of employment, and as this court pointed out in Pritchard, the provision for subsequent amendment was part of the contract when appellant entered into it.” Pulliam v. Ga. Firemen’s Pension Fund, supra at 413 (1). Seagraves and Daniels, therefore, had no vested right to compensation for unused sick days under Georgia law.

Judgment reversed.

Ellington, J., concurs. Barnes, J., concurs specially.

Barnes, Judge,

concurring specially.

Even though I agree with the majority that the trial court’s judgment must be reversed for the reasons stated in Division 2, I write separately because I cannot agree that the issue discussed in Division 1 is properly before this court.

Our Supreme Court recently held:

This Court and the Court of Appeals are courts of review. 1983 Ga. Const., Art. VI, Sec. V, Par. Ill; Art. VI, Sec. VI, Par. II. As appellate courts, we are courts for the correction of errors of law made by the trial courts. Mills v. State, 188 Ga. 616, 623 (4 SE2d 453) (1939). In appellate practice, an error of law is “a false or mistaken conception or application of the law. Such a mistaken or false conception or application of the law to the facts of a cause as will furnish ground for a review of the proceedings. . . .” Black’s Law Dictionary (5th ed.). An error of law has as its basis a specific ruling made by the trial court. In order for a Georgia appellate court to review a trial court ruling for legal error, a party must set forth in the enumeration of errors the allegedly erroneous ruling. OCGA § 5-6-40. The appellate court is precluded from reviewing the propriety of a lower court’s ruling if the ruling is not contained in the enumeration of errors. Lee v. State, 265 Ga. 112 (8) (454 SE2d 761) (1995); Irvin v. Askew, 241 Ga. 565 (2) (246 SE2d 682) (1978).

Decided November 4, 1999.

David J. Couch, for appellant.

Daniel F. Byrne, for appellees.

Felix v. State, 271 Ga. 534, 539 (523 SE2d 1) (1999).

Because the City’s sole enumeration of error alleges only that “[t]he superior court erred in ruling that the City of East Point must pay the claimed unused sick leave benefits by holding that the City’s 1979 ordinance was precluded by the Georgia Constitution and by not considering the employees’ claims waived,” the City never moved for summary judgment based on the statute of limitation, and, consequently, the trial court never ruled on this issue, we cannot reverse the trial court based upon what we perceive to be a violation of the statute of limitation. Felix v. State, supra. See Boggs v. Madison County, 240 Ga. App. 849 (524 SE2d 553) (1999) (“An appellant cannot travel on one ground below, find the wind blowing in another direction, change tack, and head elsewhere on appeal.”). Accordingly, I cannot concur with reversing the trial court on an issue that was neither enumerated as error nor presented to the trial court for a ruling.