text:
    A01A0851.
    In re COPELAN.
    (553 SE2d 278)
   Eldridge, Judge.

Evelyn Copelan appeals the jury verdict of the Superior Court of Putnam County finding her an incapacitated adult as to her person and property. For the reasons discussed below, we reverse.

The standard of review on appeal from the denial of a motion for directed verdict or for judgment notwithstanding the verdict is “any evidence.” OCGA § 9-11-50 (a); Crump v. McDonald, 239 Ga. App. 647, 648 (520 SE2d 283) (1999). However, “any evidence” means any evidence “sufficient under the applicable standard”; here, the standard is clear and convincing evidence. OCGA § 29-5-11 (a); Kodadek v. Lieberman, 247 Ga. App. 606, 610 (2) (545 SE2d 25) (2000). As such, under a clear and convincing standard, there must be substantial evidence to constitute “any evidence” to support a verdict under such intermediate standard of proof; a scintilla or slight amount of evidence would not satisfy such a higher standard of proof. OCGA § 29-5-11 (a); Kodadek, supra. As the “any evidence” standard means any evidence “sufficient under the applicable standard” in the court below, to determine whether to uphold the jury’s finding in this case, the evidence supporting guardianship over Mrs. Copelan’s person and property must, indeed, have been clear and convincing.

Viewed in this light, the evidence showed that Mrs. Copelan’s husband, Russell Copelan, died on September 11, 1992. Mr. Copelan, by will, left his estate, including a substantial dairy farm, to his wife if she survived him. If she failed to survive him, his four children inherited under the will to be distributed equally among them.

Mrs. Copelan actively participated in the day-to-day activities of running the dairy farm prior to, as well as after, her husband’s death. Most notable of these activities as adduced from the record included ongoing bookkeeping, check writing, and her voluntary completion of duly authorized survivor deeds.

After her husband’s death, Mrs. Copelan’s children assisted in some aspects of the dairy business. For example, her oldest son, Thomas, helped Mrs. Copelan manage the farm, while Willie David (“Danny”), the youngest, participated in the physical labor of the business. The other two children, Uyvonna and John, had independent employment and did not work on the farm in any ongoing substantive capacity. In approximately 1995, Uyvonna moved in with Mrs. Copelan.

Approximately two years after Mr. Copelan’s death, the dairy farm business began to go into debt totaling approximately $170,000. Uyvonna testified that Mr. Copelan “always told [Mrs. Copelan], if the business got bad to sell the cows, not to sell the land.” Mrs. Copelan proceeded to sell a herd of dairy cows to alleviate the debt.

This decision to sell the herd caused significant family conflict. Thomas believed that the dairy herd was his and that Mrs. Copelan would never dispose of this property unless something was wrong with her. John concurred in this opinion. The conflict reached such a peak that Christmas activities in 1996 were suspended and threatening words were exchanged among the children, most notably a vituperative phone message left by John on Danny’s answering machine threatening Mrs. Copelan with “embarrassment” in the community and a lawyer who was “chomping at the bit” to take the case.

Consequently, on October 1, 1997, Thomas and John filed a petition for the appointment of a guardian both as to Mrs. Copelan’s person and property alleging that she was an incapacitated adult. The specific incapacities designated by the petition were “mental disability” and “advanced age.” As such, the petitioner alleged that Mrs. Copelan: (1) lacked sufficient understanding or capacity to make significant responsible decisions concerning her person or [was] incapable of communicating such decisions; and (2) [was] incapable of managing her estate, and the property of the proposed ward [would] be wasted or dissipated unless proper management [was] provided or the property of the proposed ward [was] needed for her support or the support of persons entitled to be supported by the proposed ward.

On October 24, 1997, after reviewing the petition and the psychological evaluation report concerning Mrs. Copelan, the probate court found no probable cause to support a finding of incapacity. Significantly, the psychological evaluator of Mrs. Copelan, Jeff Duffey, found that Mrs. Copelan suffered symptoms of clinical depression, but was not incapacitated to such a degree that a guardian should be appointed over her person and property. However, as a result of the unfavorable probate court ruling, Thomas and John Copelan appealed to the superior court on November 24,1997, and a jury trial ensued.

At trial, the jury heard relevant testimony from expert and lay witnesses concerning Mrs. Copelan’s alleged incapacitation. Mrs. Copelan neither testified nor appeared at this trial. John testified that the apparent reason for her absence was “embarrassment,” as she was a “sweet, genteel, epitome of a southern lady” and “never liked to discuss the family business in the community.”

Dr. Anna Marie Paulsen, petitioner’s expert in mental incapacity, testified at trial by deposition. Dr. Paulsen was the psychiatrist who evaluated and treated Mrs. Copelan on several different occasions. The first visit with Dr. Paulsen was March 4,1996. Dr. Paulsen performed a “clinical interview” which entailed a basic review of systems and various counting tests. Significantly, Dr. Paulsen did not give Mrs. Copelan any “mental cognition tests” as she “came across very well in that first session.” However, at this initial visit, Dr. Paul-sen noted that Mrs. Copelan: “was very nervous, she felt anxious. She mentioned her husband’s recent death. She was nervous about what to do with the business and she made reference to there being some dissension between her sons about the business.” Dr. Paulsen’s diagnosis of Mrs. Copelan’s condition after the first visit was “major depression, single episode, severe.” Significantly, there was no mention of mental illness or mental incapacity. Dr. Paulsen’s reasons for this initial diagnosis were the following:

She [had] trouble sleeping through the night. She said she cries very easily, she said she is not sure why. She said it did start when her husband passed. She felt like she couldn’t stay by herself. She couldn’t remember names. She reported a tremendous amount of anxiety. Then she appeared very depressed and anxious, even a bit slowed, mentally slow and dull. She was self-conscious of information she seemed to be giving to me. She knew her age and she knew the day of the week, but in terms of — and she knew general information. She knew the birthdays of all of her children. But she seemed fuzzy in terms of trying to tell me some information. And she could not do counting by serial sevens down from 100, or threes.

As a result of the diagnosis, Dr. Paulsen prescribed an antidepressant, Pamelor, to treat Mrs. Copelan’s depression. On two subsequent visits, Mrs. Copelan’s status seemingly improved. Dr. Paul-sen noted Mrs. Copelan’s statements: “ ‘I’m feeling much better, I’m not crying as much. . . . Mentally clearer. . . .’ I noted she looked good, but seemed very sad.” On Mrs. Copelan’s December 11, 1996 visit, Dr. Paulsen stated that Mrs. Copelan was “clear, coherent and oriented,” but Dr. Paulsen noted that she was still “depressed.” As a result, Dr. Paulsen discontinued the Pamelor prescription, but prescribed Serzone to further treat Mrs. Copelan’s seemingly chronic depression. On the December 18, 1996 visit, Dr. Paulsen testified that Mrs. Copelan stated: “ ‘I feel the best I’ve ever felt, wow, a big difference. I feel motivated. I’m not too dizzy, I’m sleeping better and I have no side effects.’ ” As a result, Dr. Paulsen concluded that “she was alert, she was oriented, she was non-psychotic.”

On the next visit, Dr. Paulsen made no note of confusion or disorientation, but changed Mrs. Copelan’s medication to Effexor because the Serzone had not alleviated Mrs. Copelan’s depression. At the next visit, Dr. Paulsen noted in her records that Mrs. Copelan “[took] care of herself, sleeping, eating, clothing.” Finally, on October 8, 1997, Dr. Paulsen diagnosed Mrs. Copelan as: “awake and alert, but very distant . . . she had serious depression. I recommended that she go into a hospital to get help.” Despite her depression, Mrs. Copelan indicated to Dr. Paulsen that she was capable of managing her own affairs, telling her, “[I am] all right — I write my checks on my own.”

Significantly, on cross-examination, Dr. Paulsen was asked if she could state to any degree of medical certainty that Mrs. Copelan “didn’t know where she was, didn’t know what she was doing and couldn’t handle her affairs.” In response, Dr. Paulsen retorted that the date of her last record would “not indicate” such. The most Dr. Paulsen could conclude was that Mrs. Copelan was “sad.” In Dr. Paul-sen’s opinion, Mrs. Copelan needed to be hospitalized because she: “had a history of coming into treatment and out of treatment with irregularity, not following through with medication for any length of time.”

Testimony was also heard from an attorney, George Lawrence, who had been engaged by Mrs. Copelan to enact certain survivor deeds in 1997, but who also knew her personally for approximately 50 years prior. Lawrence testified that in 1997, Mrs. Copelan seemed to be in touch with reality and spoke articulately. Moreover, Mrs. Copelan returned and/or called a second and third time to Lawrence’s office to discuss and sign the deeds in his presence. When asked if Mrs. Copelan understood the legal implications of the survivor deeds, Lawrence testified that she comprehended the legality of the deeds or “[he] would not have drawn it otherwise.” This discussion occurred after Mrs. Copelan had taken the deeds home to peruse them on her own. Moreover, Lawrence, in his opinion, perceived no evidence of duress or undue influence over Mrs. Copelan.

Contrary to Dr. Paulsen and Lawrence, Thomas Copelan testified as a lay witness that Mrs. Copelan’s mind was slipping:

Q. Did you ever notice your mom after your dad died, . . . start to forget things or just act different than she did before?
A. Oh Yeah, Oh Yeah. I suppose a lot of it came with age and pressure and all. But she did. Her mind definitely was slipping, and she admitted to me a lot of times, you know, she’d say, I can’t remember this, can’t remember that, you’ll have to help me remember this, have to help me do that.

Thomas testified further that Mrs. Copelan exhibited forgetfulness that got worse with age:

Q. Prior to your dad’s death, had you ever noticed your mother having any problems with forgetfulness?
A. Well, . . . like I say, she was getting older, and it was — you could tell it was a progressive thing. I mean, the older she got the worse it got. And it started, you know, years ago. Of course, I guess I’m starting to forget a few things myself, you know.

However, Thomas also proffered evidence that, despite her apparent mental slippage and forgetfulness in his opinion, Mrs. Copelan: (1) maintained the books for the dairy farm, both prior to and after her husband’s death; (2) executed survivor deeds; and (3) drafted checks necessary to operate the dairy business.

Further, Thomas testified that Mrs. Copelan’s conduct, with respect to selling the cows, if not due to her alleged mental slippage, was otherwise promulgated by the undue influence of Uyvonna and Danny Copelan: “I started this litigation because she was giving away her property and not knowing what she was doing, or else under duress doing it. . . . Her life was being controlled by my sister [Uyvonna]. Being totally controlled, and she wasn’t living no kind of life. . . . [S]he was being manipulated.”

Similar to Thomas’ testimony, John testified at trial concerning Mrs. Copelan’s allegedly deteriorating mental condition:

Well, at the time daddy died, . . . she wasn’t able to deal with all of it because even then her mind was starting to slip, and she was nervous or she was taking anti-anxiety drugs all the time because she just couldn’t deal with it. She cried a lot, she just said that everything was driving her crazy. ... It got progressively worse. It got to the point that she was crying daily.

John further testified that Mrs. Copelan “told [him] that she really needed [his] help, that she just couldn’t do things for herself, and told that [John] was the only person that had ever helped her in the right way.”

John alleged that he and Thomas have had almost no contact with Mrs. Copelan as a result of the alleged undue influence of Uyvonna and Danny. “They [Uyvonna and Danny] had absolutely brainwashed her and had beaten that poor woman down until they have sucked every bit of life that she has out of her.”

John’s ex-wife, Ann Copelan, a professional artist and master’s level psychologist, without objection, also testified as to Mrs. Copelan’s mental capacity even though she was neither qualified nor tendered as an expert witness in the case.

Specifically, Ann Copelan testified to an isolated occurrence at Phipps Plaza mall where she and Mrs. Copelan were shopping together. She testified that Mrs. Copelan’s: “memory seemed to be failing at that time, because in going to some of the same places and everything, I would tell her to meet me at certain places, and she wouldn’t be there. And I would have to look to find her.” However, she never gave specific facts upon which the jury could weigh her lay opinion — i.e., appeared dazed, disoriented, did not know where she was as opposed to losing track of time shopping. For example, when asked whether there was anything in particular that led her to be concerned, Ann Copelan responded, “Just because she didn’t seem to be remembering things and she seemed to be a little confused.” Significantly, Ann Copelan “did not talk to Mrs. Copelan” about her behavior in the mall, but merely concluded that her conduct was probably a result of “stress” from the “family situation.” Importantly, however, evidence was adduced on cross-examination that Mrs. Copelan, on the same occasion at Phipps Plaza, was discussing her estate, estate taxes, and the “division of property” as affecting estate taxes.

Further, Ann Copelan testified that she had engaged in phone conversations with Mrs. Copelan after June 1997, in which Mrs. Copelan seemed confused, had memory loss, and appeared to be deteriorating. Ann Copelan gave no factual examples, and no further evidence was adduced at trial, showing how Mrs. Copelan was confused, exhibited memory loss, or appeared to be deteriorating during these telephone conversations. Again, however, Ann Copelan testified on cross-examination as to the substance of the telephone conversations; a central issue of the conversation was the “tax implications” of her estate. Ann Copelan testified that Mrs. Copelan “did not understand estate tax” and that she “did not know who to go and see.”

In addition, Ann Copelan testified that, from a videotape deposition of Mrs. Copelan taken in 1998, she had “diagnosed” Mrs. Copelan as seemingly “suffering a dementia, a disease associated with memory loss and decreased interest in activities as well as herself.” This lay opinion was proffered solely on the observance of the videotape in comparison to Ann’s past knowledge of Mrs. Copelan; no physical examination or evaluation was conducted, no tests were performed, no written diagnosis was made. She based her opinion on: (1) “all of my experience with persons that I have tested”; (2) “knowing her from the past, . . . and on having seen her in 1996”; and (3) “especially on the videotape deposition.” Importantly, the videotape was not entered into evidence so that the jury could view it to determine the weight and credibility of the lay opinion.

Lastly, Ann Copelan testified to Uyvonna’s alleged undue influence over Mrs. Copelan. She related an occurrence in June 1997, when John had a stroke. Apparently, Mrs. Copelan wished to visit her son in the hospital, but Uyvonna refused to bring Mrs. Copelan to the hospital.

Mrs. Copelan’s sister, Lillie Whitaker, also testified concerning Mrs. Copelan’s alleged mental incapacity as well as the alleged undue influence of Uyvonna and Danny. Specifically, Whitaker recounted instances where Mrs. Copelan could independently “drive around.” When asked if Mrs. Copelan was a person losing her faculties during those times, Whitaker responded, “not then.”

Concerning the alleged undue influence of Uyvonna, Whitaker also testified that a “block” was placed on Mrs. Copelan’s phone, allegedly by Uyvonna, after she attempted to contact Mrs. Copelan several times in one day. In addition, Whitaker testified that she last saw Mrs. Copelan at the beauty parlor, but apparently Mrs. Copelan appeared afraid to talk to her because of Uyvonna; however, Uyvonna was not physically present at the hair appointment.

Based on this evidence, a jury verdict was entered on September 22, 2000, in the Superior Court of Putnam County finding that Mrs. Copelan was an incapacitated adult, and that, as such, a guardian should be appointed over both her person and property in accordance with OCGA § 29-5-1. The defendant was denied a directed verdict as well as j.n.o.v., and, thus, Mrs. Copelan appeals the jury verdict. Held:

Mrs. Copelan contends that the verdict is not supported by the evidence. We find that the verdict is not supported by clear and convincing evidence and reverse.

A judge of the probate court may appoint guardians over the person of adults who are incapacitated by reason of mental illness, mental retardation, mental disability, physical illness or disability, chronic use of drugs or alcohol, or other cause, to the extent that such adults lack sufficient understanding or capacity to make significant responsible decisions concerning their persons or to the extent that they are incapable of communicating them.

OCGA § 29-5-1 (a) (1).

A judge of the probate court may appoint guardians over the property of adults who are incapacitated by reason of mental illness, mental retardation, . . . physical illness or disability, chronic use of drugs or alcohol, detention by a foreign power, disappearance, or other cause, to the extent that such adults are incapable of managing their estates and that the appointment is necessary either because the property will be wasted or dissipated unless proper management is provided or because the property is needed for the support, care, or well-being of such adults or those entitled to be supported by such adults.

OCGA § 29-5-1 (a) (2).

On appeal, the determination of guardianship over a person and property requires a consideration of any evidence under the applicable standard, here clear and convincing evidence, to determine whether the adult is incapacitated as enumerated in OCGA § 29-5-1 (a) (1) and (2). Kodadek, supra. In the instant case, appellees rely principally on the testimony of Dr. Paulsen and Ann Copelan which they submit “conclusively demonstrated evidence from which the jury could deduce Evelyn Copelan’s mental incapacity.” As such, the question for this Court is whether the evidence was clear and convincing such to justify the apparent deduction by the jury; we find that it was not.

The reliance on Dr. Paulsen’s testimony does not reach the threshold of clear and convincing evidence. Dr. Paulsen testified that the most she could say, to any degree of medical certainty, about Mrs. Copelan’s mental capacity, after several clinical visits, was that she was “sad” — i.e., she had lost a husband and had children fighting over her property. If anything, Dr. Paulsen’s record testimony clearly and convincingly establishes that Mrs. Copelan was clear, lucid, and/ or alert at each visit. At one point, Dr. Paulsen went so far as to declare Mrs. Copelan “alert, oriented . . . non-psychotic.” Dr. Paul-sen’s only concern, as reinforced by her repeated diagnoses and prescriptions, was Mrs. Copelan’s state of depression. The seemingly persistent depression and her failure to follow through on medication appear to be what prompted Dr. Paulsen’s recommendation for hospitalization, not her mental incapacity. Thus, Dr. Paulsen’s expert opinion does not support the verdict.

The unsoundness of mind which will justify an appointment must be more than mere physical disability. Epperson v. Epperson, 212 Ga. App. 420 (442 SE2d 12) (1994) (79-year-old man, advanced age and two prior strokes coupled with lack of capacity for responsible decision making such as driving a car against doctor’s orders as well as abuse of sleeping pills warranted guardian appointment over person and property); Doob v. Atkinson, 232 Ga. App. 471 (500 SE2d 657) (1998) (chronic alcoholism coupled with inability to decide whether to drink alcohol and refusal to take prescribed medicine warranted sustained appointment of guardian ad litem); see also 1977 Op. Atty. Gen. No. U77-65; compare Jones v. Jones, 191 Ga. App. 401 (381 SE2d 565) (1989) (affirming the termination of a guardianship after trial court examined medical evidence and conducted face-to-face interview with the ward in which he had an opportunity to observe ward’s appearance, speech, and demeanor). The test for mental incapacity is not whether one has merely mismanaged his affairs or is merely unclear in his mind or not bright; rather, “the test is one of capacity — whether the individual, being of unsound mind, could not manage the ordinary affairs of his life.” (Citations and punctuation omitted.) Walker v. Brannan, 243 Ga. App. 235, 237 (533 SE2d 129) (2000). When Dr. Paulsen was asked if Mrs. Copelan did not know where she was, did not know what she was doing, and whether she could not handle her affairs, Dr. Paulsen responded that her last record visit would not indicate such. Thus, Dr. Paulsen’s testimony was contrary to the verdict.

Reliance on Ann Copelan’s testimony places appellees’ argument on even weaker ground because she testified as a lay person. Ann Copelan had sufficient knowledge, training, and experience to be qualified as an expert, but, at trial, she testified only as a lay witness. A person’s state of mind or mental condition is properly the subject of opinion testimony, and after narrating the facts and circumstances upon which the conclusion is based, a nonexpert witness may express his or her opinion as to the state of mind or mental condition of another. O’Kelley v. State, 175 Ga. App. 503, 507 (3) (333 SE2d 838) (1985). However, a lay witness must “narrate the facts and circumstances upon which his conclusion is based” — i.e., lay a factual foundation for any conclusions; this is the fundamental difference between the opinions of experts and lay witnesses, because the jury must determine from the facts and circumstances whether the lay person had the opportunity to formulate the opinion, and from such facts, judge the weight and credibility of the lay opinion. Thornton v. Gaillard, 111 Ga. App. 371, 372 (141 SE2d 771) (1965); Glover v. State, 129 Ga. 717, 724 (9) (59 SE 816) (1907).

Aon Copelan’s testimony concerning the occurrence at Phipps Plaza, the telephone conversations in 1997, as well as her testimony based on the videotaped deposition, constituted lay testimony about Mrs. Copelan’s mental capacity. As such, Ann Copelan’s testimony, to be probative, had to be substantiated by laying a proper foundation. At trial, the facts upon which her opinion was based were insufficient. For example, Ann Copelan testified that “I would tell her to meet me at certain places, and she wouldn’t be there. And I would have to look to find her.” It goes without saying that a myriad of exigencies could provide a reasonable explanation for Mrs. Copelan’s absence. However, Ann Copelan did not think it necessary to inquire about Mrs. Copelan’s behavior. She merely speculated that her conduct was probably a result of “stress” arising from “the family situation.” Thus, Ann Copelan’s unsubstantiated conclusion and speculative lay opinion that Mrs. Copelan appeared confused and exhibited memory failure were not probative evidence and should have been disregarded by the jury. While ordinarily the sufficiency of the underlying facts to support the witness’s opinion is a jury question, when the reasons stated by the witness are “plainly and indisputably” insufficient, this Court may on review so hold as a matter of law, and a verdict founded upon such evidence should be set aside as being unauthorized. Whorton v. Boatwright, 233 Ga. App. 369, 370 (504 SE2d 216) (1998); Espy v. Preston, 199 Ga. 608, 609 (34 SE2d 705) (1945) (denial of new trial error because reasons stated by lay witnesses insufficient to support opinion regarding insanity and testamentary capacity).

Notwithstanding the evidentiary problems with Ann Copelan’s testimony, the substance of her testimony fails to establish clear and convincing evidence of a lack of mental capacity in Mrs. Copelan. On cross-examination, her testimony that Mrs. Copelan was discussing division of property at Phipps Plaza unequivocally calls into question her prior testimony and, thus, fails to meet the burden of clear and convincing evidence because Mrs. Copelan was aware of her estate, her children, and her donative intent.

Moreover, Ann Copelan’s telephone conversations with Mrs. Copelan in 1997 are subject to the same evidentiary and substantive deficiencies. At trial, Ann Copelan testified that during these telephone conversations Mrs. Copelan “seemed confused, had memory loss and appeared to be deteriorating.” Again, this lay testimony was proffered without any factual foundation rendering it nonprobative. Whorton, supra; Espy, supra. As with the substantive failure of the Phipps Plaza incident, Ann Copelan, again, called her own testimony into question. On cross-examination, she asserted that Mrs. Copelan discussed “tax implications” of her estate; discourse concerning the matters of Mrs. Copelan’s estate is clear and convincing evidence of her mental competency, not mental incapacity.

Any reliance on Ann Copelan’s apparent diagnosis of Mrs. Copelan based on her observance of a videotape not entered as evidence (neither was the videotape transcript entered) at trial fails. A lay witness must substantiate any opinions with facts admissible as evidence; an opinion based solely on out-of-court hearsay, not subject to any exception to the hearsay rule, is inadmissible. Carlson v. State, 240 Ga. App. 589, 590 (2) (524 SE2d 283) (1999) (Even if a witness qualifies as an expert, testimony based solely on hearsay, not subject to a hearsay exception, is inadmissible.); McEver v. Worrell Enterprises, 223 Ga. App. 627, 631 (478 SE2d 445) (1996); Brown v. State, 206 Ga. App. 800 (427 SE2d 9) (1992) (expert witness testified based on a videotaped deposition not before the court, his testimony was inadmissible hearsay without probative value even in the absence of an objection); Mallard v. Colonial Life &c. Ins. Co., 173 Ga. App. 276 (326 SE2d 6) (1985).

Ann Copelan’s “diagnosis” included no physical examination, test evaluation or written diagnosis of Mrs. Copelan, only an observance of a videotape not admitted as evidence. Inasmuch as such diagnosis was based on no more than nonprobative hearsay, the jury could not reasonably assess any weight and credibility of her testimony. As weight and credibility could not be reasonably and fairly assessed in this case, this testimony is deficient as a matter of law. As a result, reliance on Ann Copelan’s testimony based on the videotape unequivocally fails to meet the clear and convincing evidence standard required to appoint a guardian over Mrs. Copelan’s person and property.

The fatal blow to appellees’ argument that the evidence adduced at trial showing Mrs. Copelan’s alleged mental incapacity met the clear and convincing standard is the testimony of George Lawrence. Appellees contend that Mrs. Copelan’s mental incapacity is shown by the fact that she did not know what she had signed when she executed the survivor deeds in 1997. Appellees’ argument flies in the face of Lawrence’s testimony which clearly and convincingly shows Mrs. Copelan to have been competent, fully comprehensive, and in touch with reality when she endeavored to execute the deeds. Despite his acquaintance with Mrs. Copelan for over 50 years, Lawrence would have been obliged to refrain from her request if he had doubt of her mental capacity. Mrs. Copelan’s own conduct, in taking one of the deeds to peruse, supports this reasoning.

The lay testimony of Thomas and John Copelan also fails to meet the clear and convincing threshold as their testimony was unsubstantiated and inherently contradictory. Op the one hand, they testified to Mrs. Copelan’s forgetfulness, mental slipping, and memory failure. On the other hand, however, they testified to Mrs. Copelan’s continued and competent bookkeeping and check writing. If anything, their examples provided a clear and convincing foundation for mental competency, rather than mental incapacity.

Apparently in the alternative, appellees assert that clear and convincing evidence of undue influence falls within the parameters of OCGA § 29-5-1. Specifically focusing on the language “or other cause,” appellees take an exceptionally broad view of this phrase. Such a broad reading of OCGA § 29-5-1 flies in the face of basic statutory construction, because under the fundamental principle of expressio unius est exclusio alterius, the expression of one thing implies the exclusion of another. OCGA § 29-5-1 (a) and (b) clearly enumerate illnesses or physical condition which determine the test of mental incapacity; undue influence cannot reasonably be placed among the enumerated illnesses or physical condition and, thus, is excluded. The maxim of noscitur a sociis may also be applied in this case. The meaning of the phrase “or other cause” may be ascertained by reference to the list of illnesses that immediately precede and relate to it. Clearly, the enumerated list intends to include medically diagnosable illnesses or physical condition. As such, “or other cause” must be read and understood in this context only. However, undue influence coupled with clear and convincing evidence of mental incapacity could warrant a finding of guardianship over person and property.

Although there is no Georgia guardianship case discussing undue influence as a way of meeting the clear and convincing evidence standard of mental incapacity, there are voluminous cases discussing the same issue in the context of testamentary wills. As this area of law is inextricably related to the legal issues presented in the instant case, it provides fertile ground to determine whether the evidence adduced at trial meets the clear and convincing standard as to undue influence.

Thomas and John testified that if Mrs. Copelan’s conduct, with respect to selling the cows, if not due to her alleged mental slippage, was promulgated by the undue influence of Uyvonna and Danny over Mrs. Copelan: “[Uyvonna and Danny] had absolutely brainwashed her and had beaten that poor woman down until they have sucked every bit of life that she has out of her.” Moreover, Thomas and John alleged that Mrs. Copelan was forcefully isolated and cut off from her children. Lilly Whitaker, Mrs. Copelan’s sister, testified that Uyvonna allegedly placed a “block” on her phone to preclude any contact with Mrs. Copelan. In the testamentary context, “[t]he law presumes every man to be sane until there is evidence to the contrary, and the burden is on the party attacking a contract to show the incompetency of the signer at the time of the execution thereof.” Jones v. Smith, 206 Ga. 162, 165 (8) (56 SE2d 462) (1949). Similarly, the burden was on appellees to show incompetency and undue influence.

However, the evidence in the present case indicated that Mrs. Copelan may have been ignorant as to facts or law, lacked interest in business details, had implicit confidence in her children in whose hands she had placed some of her affairs, and even resented the incompetency proceedings because of embarrassment or since she would much prefer shifting responsibility to the shoulders of others than to worry about them herself, this Court cannot conclude that such confusion as appeared from the testimony showed clear and convincing evidence of a mind laboring under difficulty in functioning.

On the contrary, Mrs. Copelan’s mind was alert, lucid, and clear. Mrs. Copelan was clearly not subject to such undue influence as to undermine her own free will. Sims v. Sims, 265 Ga. 55 (452 SE2d 761) (1995); Bohler v. Hicks, 120 Ga. 800, 809 (48 SE 306) (1904) (undue influence is such influence as amounts either to deception or to force and coercion, destroying free agency). Evidence that shows no more than an opportunity to influence falls short of showing the exercise of undue influence. Brumbelow v. Hopkins, 197 Ga. 247 (29 SE2d 42) (1944). Nor does honest persuasion or argument constitute undue influence in the absence of fraud or duress when the individual in question has the mental capacity to choose between his original intention and the wishes of the other person. Morgan v. Ivey, 222 Ga. 850, 852 (152 SE2d 833) (1967). Moreover, in the context of a will, the testator’s choice of one relative rather than another as the favored beneficiary is an insufficient reason alone to deny probate to the will. Cornelius v. Crosby, 243 Ga. 26, 28 (252 SE2d 455) (1979). This reasoning should hold true in the context of guardianship. As such, influence is undue “only when it constrains or coerces a person into doing that which his best judgment tells him not to do and deprives him of his free agency and substitutes the will of another person for his own.” 1 Redfearn, Wills & Administration in Georgia, § 50 (S. Love 5th ed. 1988).

Susceptibility to undue influence arising from deep friendship for, or extreme confidence in others, alone, cannot establish clear and convincing evidence of incompetency of the victim unless it is to an extent which deprives the victim of free will; Mrs. Copelan was not subject to such undue influence undermining her own free will. Sims, supra. As such, susceptibility to undue influence may be the instrumentality used upon an incompetent victim, but there must be other independent evidence of that mental incompetence. Common sense would dictate that strong mentalities are sometimes the victims of undue influence.

In the instant case, the enactment of survivor deeds, while perhaps unfair, does not prove mental incapacity, quite the contrary. Lawrence testified to Mrs. Copelan’s coherency, her apparent awareness of reality, and comprehension of the significance of the survivor deeds. Lawrence saw no evidence of duress and would not have drawn up the deeds if he had reason to question her mental capacity.

Moreover, selling the herd of cows, while perhaps imprudent in her children’s eyes, does not establish clear and convincing evidence of mental incapacity when the estate was in arrears by approximately $170,000.

Since this Court finds that Mrs. Copelan’s mental incapacity was not shown by clear and convincing evidence sufficient to authorize a jury verdict thereon, evidence of susceptibility to undue influence alone is insufficient to meet the clear and convincing standard. Therefore, the verdict in this case cannot be justified under a theory of undue influence.

In the instant case, extensive evidence was proffered in support of Mrs. Copelan’s mental competency, and the probative force of this evidence is not to be ignored. The alleged conflicting evidence presented does not create an issue of fact upon which impartial minds may reach different conclusions; rather, the jury relied on testimony that was inadmissible, inappropriate, nonprobative, and/or unsubstantiated. Any verdict founded upon evidence inadmissible as hearsay should be set aside as being unauthorized. Whorton, supra; Espy, supra; Kodadek, supra.

Typically, the jury is necessarily vested with the primary responsibility of determining fact issues. We are and should be guided by the fact that much must necessarily be left, especially in proceedings of this kind, to the sound judgment of the jury and the trial court that have the advantage of being confronted with the witnesses, typically the alleged incompetent person, and the circumstances surrounding the entire proceeding. The trial court clearly is more capable than we of reaching a clear understanding of the situation and of the mental condition and capacity of the claimed incompetent person.

Decided July 31, 2001

Lambert & Roffman, E. R. Lambert, M. Joseph Reitman, Jr., Barry B. McGough, for appellant.

Adam R. Gaslowitz & Associates, Adam R. Gaslowitz, Walter Hamberg III, Duane D, Pritchett, for appellee.

However, the instant case showed that Mrs. Copelan is not a person of unsound mind, and that there was no clear and convincing evidence to support a finding that her normal mental faculties have deteriorated to the extent that she no longer possesses the degree of mental alertness, stability, and comprehension necessary to avoid the impositions of designing persons, or the waste that results from incompetent management of property as outlined by OCGA § 29-5-1. The evidence is therefore insufficient to justify the jury’s finding that a guardian should be appointed over Mrs. Copelan’s person and property. As such, we, therefore, need not address appellant’s second enumerated error.

Upon review of the trial court’s judgment and the entire record, this Court finds that the jury verdict was unfounded as it was based on insufficient and improper evidence which failed to meet the mandated standard of clear and convincing evidence. Kodadek, supra.

Judgment reversed.

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

       This Court must therefore view the evidence presented at trial and determine whether some evidence supported the jury’s verdict, and, in doing so, must view the evidence in the light most favorable to the party for whom the verdict was rendered. Kodadek, supra. Where a jury returns a verdict and it has the approval of the trial judge, the verdict must be affirmed on appeal if there is “any evidence” to support it as the jurors are the sole and exclusive judges of the weight and credit given the evidence. Id. This Court “must construe the evidence with every inference and presumption in favor of upholding the verdict, and after judgment, the evidence must be construed to uphold the verdict even where the evidence is in conflict. As long as there is some evidence to support the verdict, the denial of [the] motion for . . . new trial will not be disturbed.” (Citations and punctuation omitted.) MARTA v. Green Intl., 235 Ga. App. 419, 420 (1) (509 SE2d 674) (1998).

       She is currently employed by Putnam-Jasper Mental Retardation Center and is supervised by John Copelan, the Director of the Center. At the Center, Ann Copelan performs psychological evaluations among other duties.


source: Caselaw Access Project

author: Miller, Judge.

license: Public Domain

text:
    A01A0905.
    SCOTT v. THE STATE.
    (553 SE2d 276)
   Miller, Judge.

Robert D. Scott was convicted of two counts of aggravated assault and one count of possession of a firearm during the commission of a felony. After the denial of his motion for new trial, Scott appeals, asserting as error the denial of his motion to dismiss and the trial court’s refusal to give a jury charge on self-defense. Scott also complains of the State’s allegedly improper comments made during closing argument.

1. Although the court instructed the jury on the law of accident, it refused to give Scott’s requested charge on self-defense. Scott enumerates this failure as error. It is not error to fail to give a charge where there is no evidence to support it.

The defense of self-defense admits, but seeks to justify, the commission of an act. Scott testified that after an altercation with a patron in a club, he decided to leave. As he was leaving, the patron and two bouncers grabbed him from behind and a scuffle began. He further testified that one of the men had a gun of which he tried to gain control but was unable to, and that the gun fired during the struggle, injuring one of the men.

Scott presented no evidence that he committed the act that was the basis of the aggravated assault charges. On the contrary, he testified that he did not fire the gun and that his fingerprints would have been only on the gun’s barrel. As Scott’s testimony does not allow for even the possibility that he fired the gun, no evidence of self-defense was presented. Therefore, Turner v. State and its progeny do not apply to require the giving of the charge on self-defense. Thus, the trial court did not err in failing to give Scott’s requested charge on self-defense.

2. Scott argues that the court erred in denying his motion to dismiss on the ground of double jeopardy. Specifically, he contends that because he was acquitted in federal court for a crime involving the same conduct that was the basis for the state charges, he was impermissibly subjected to double jeopardy.

OCGA § 16-1-8 (c) provides that

[a] prosecution is barred if the accused was formerly prosecuted in a district court of the United States for a crime which is within the concurrent jurisdiction of this state if such former prosecution resulted in either a conviction or an acquittal and the subsequent prosecution is for the same conduct, unless each prosecution requires proof of a fact not required in the other prosecution or unless the crime was not consummated when the former trial began.

Scott was tried in federal district court for violation of 18 USC §§ 922 (g) and 924 (e). The federal charge required proof that Scott had been convicted of a crime punishable by imprisonment for a term exceeding one year, and that he knowingly possessed a firearm which had been shipped or transported in interstate or foreign commerce. The state charge, possession of a firearm during the commission of a felony, required proof that Scott possessed a gun during the commission of or the attempt to commit any crime against or involving the person of another, and which crime is a felony.

Decided July 31, 2001.

William P. Nash, Jr., for appellant.

J. Gray Conger, District Attorney, Samuel G. Merritt, Assistant District Attorney, for appellee.

Clearly the two offenses each contain an element not required by the other, and therefore the state conviction is not barred under OCGA § 16-1-8 (c). Thus, the trial court did not err in denying the motion to dismiss on this ground.

3. Scott contends that the State made improper comments during closing argument, but concedes this error was not preserved. Scott’s failure to object to the allegedly improper argument precludes appellate review.

Judgment affirmed.

Andrews, P. J, and Eldridge, J., concur.

        Alexis v. State, 273 Ga. 423, 426 (4) (541 SE2d 636) (2001).

       See Brown v. State, 267 Ga. 350, 351 (2) (478 SE2d 129) (1996); see generally OCGA § 16-3-21.

        Emerson v. State, 222 Ga. App. 596, 597 (2) (b) (474 SE2d 638) (1996).

       262 Ga. 359-360 (2) (418 SE2d 52) (1992).

       We will address this enumeration although the record, which does include a copy of the federal indictment, does not contain a copy of the acquittal.

       OCGA § 16-11-106 (b) (1).

       See Torres v. State, 270 Ga. 79, 80 (1) (508 SE2d 171) (1998); Moser v. State, 246 Ga. App. 268, 269-270 (2) (538 SE2d 904) (2000); McAlister v. State, 236 Ga. App. 609, 610 (1) (512 SE2d 53) (1999).

        Rogers v. State, 247 Ga. App. 219, 223 (5) (543 SE2d 81) (2000); Daker v. State, 243 Ga. App. 848, 854 (18) (533 SE2d 393) (2000).


text:
    A01A0948.
    PRICE v. STATE OF GEORGIA et al.
    (553 SE2d 194)
   Miller, Judge.

The question on appeal is whether inspection and law enforcement efforts by the Georgia Department of Natural Resources, resulting in an allegedly inaccurate statement to plaintiff that he could not operate a certain furnace in Georgia, are protected from liability under the doctrine of sovereign immunity. We hold that they are protected and affirm summary judgment in favor of the State of Georgia and the Department of Natural Resources (DNR).

Summary judgment is appropriate when “there is no genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law. . . ,” When reviewing an appeal from a grant of summary judgment, this Court conducts a de novo review of the law and views the evidence and all reasonable conclusions and inferences drawn from it in the light most favorable to the nonmovant.

So construed, the evidence showed that Jody Price operated Price’s Junkyard, Inc., a used auto parts and metal recycling business. To recycle scrap aluminum, Price used a “Twin Fire Cone” furnace to melt down auto parts. Observing thick, black smoke rising from Price’s property, a DNR ranger notified the DNR Environmental Protection Division that Price may be violating the Georgia Air Quality Act. After conducting an inspection of Price’s property, a DNR environmental specialist determined that the topless furnace did not adequately reduce smoke opacity (because it did not have an afterburner maintaining a constant temperature greater than 1,500 degrees Fahrenheit) and was not elevated on a concrete pad to prevent soil contamination. These circumstances plus tests of soil samples collected by the specialist from the property’s soil and local water well indicated that Price was violating the Georgia Air Quality Act, the Georgia Comprehensive Solid Waste Management Act, and the Georgia Hazardous Waste Management Act.

The DNR agent orally informed Price that the operation of the “Twin Fire Cone” furnace in Georgia was unlawful. Through correspondence the DNR notified Price that he must remedy the contamination on his property. The DNR provided instructions on how to bring his property into compliance with the Acts. Price was also made aware of the penalties that the DNR could impose if corrective action was not taken within the specified period. Price complied by shutting down his operation, installing a new kind of furnace, removing lead-contaminated soil from the site, and elevating the new furnace on a concrete pad.

Claiming that the old furnace could lawfully be operated in Georgia and that the DNR agents misled him in this regard, Price sued the State of Georgia and the DNR, seeking damages resulting from the shutdown of his operation, the purchase of the new furnace and incidentals required to install the apparatus, Price’s legal and investigative expenses, and the loss of the old furnace. The State of Georgia and the DNR moved for summary judgment on the ground of sovereign immunity, which the trial court granted.

1. In two related enumerations, Price contends that the trial court erred in finding that the DNR had statutory authority to conduct an inspection of his property and in concluding that the State of Georgia had not waived its sovereign immunity for losses resulting from inspection powers or functions.

Article I, Section II, Paragraph IX (e) of the 1983 Georgia Constitution explains the principle of sovereign immunity under Georgia law.

Except as specifically provided in this Paragraph, sovereign immunity extends to the state and all of its departments and agencies. The sovereign immunity of the state and its departments and agencies can only be waived by an Act of the General Assembly which specifically provides that sovereign immunity is thereby waived and the extent of such waiver.

In 1992 the Georgia legislature enacted the Georgia Tort Claims Act, which provides that Georgia’s sovereign immunity is waived “subject to all exceptions and limitations set forth” in the Act. OCGA § 50-21-24 of the Act provides that “[t]he state shall have no liability for losses resulting from ... (8) Inspection powers or functions, including . . . making an inadequate or negligent inspection of any property ... to determine whether the property complies with or violates any law, regulation, code, or ordinance or contains a hazard to health or safety. . . .” Indeed, public policy prescribes that employees and officers of the State must generally be free to act and to make decisions without fear of liability or exposure to lawsuits.

Here Price contends that he incurred losses resulting from the DNR’s inspection of his property. Price first avers that the DNR did not have statutory authority to inspect his property, which argument is without merit. When DNR agents have a reasonable belief that a violation of environmental regulations is occurring, they have statutory authority to enter private premises, to conduct an inspection, and to collect samples. The DNR environmental specialist here had authority, upon receiving information from the DNR ranger that thick, black smoke was rising from Price’s property, to enter the property and conduct an inspection. The alleged losses Price incurred from the inspection resulted from a DNR agent informing him that the old furnace could not be lawfully operated in Georgia. Assuming that the DNR conducted a negligent inspection and inaccurately informed Price that it was unlawful to operate the furnace in Georgia, the State of Georgia and the DNR would be immune from liability pursuant to the inspection powers or functions exception to the State’s limited waiver of sovereign immunity.

2. Price argues that the court erred in finding that the State of Georgia and the DNR were not liable for losses resulting from the method of providing law enforcement.

Subsection (6) of OCGA § 50-21-24 protects the State from liability for losses resulting from “the method of providing! ] law enforcement, police, or fire protection.” The DNR director or an authorized agent has the authority to ensure that the owner brings his property into compliance with the environmental regulations. Initially, the director or agent attempts to rectify the violation by “conference, conciliation, and persuasion.” When this fails, the director is authorized to issue an order specifying the provision that has been violated and the period in which corrective action must be completed. If the violations are not corrected as prescribed by the order, the property owner may be subjected to civil and criminal penalties.

Here the DNR exercised its statutory authority to enforce the environmental regulations. Price’s property was brought into compliance with the environmental regulations by conference, conciliation, and persuasion. It was not necessary to issue Price an order that prescribed a deadline for corrective action or imposed penalties. Price’s contention that the DNR’s false statements in this process caused him substantial losses does not render the DNR or the State liable, as the DNR was clearly providing law enforcement and thus was immune from liability.

Price argues that Blue Ridge Mountain Fisheries v. Dept. of Natural Resources precludes immunity here. Blue Ridge is inapplicable because it addresses federal qualified immunity and federal constitutional claims, rather than state sovereign immunity and state claims, which are at issue here. Moreover, because one judge concurred in judgment only, Blue Ridge is not binding on this Court as precedent. Since the State of Georgia did not waive its sovereign immunity with respect to losses resulting from the method of providing law enforcement, Price’s argument that the State of Georgia and the DNR were liable for his losses fails.

3. Price’s remaining enumeration is rendered moot in light of our holdings in Divisions 1 and 2.

Decided July 31, 2001

Ray C. Smith, Jr., for appellant.

Thurbert E. Baker, Attorney General, Kathleen M. Pacious, Deputy Attorney General, Loretta L. Pinkston, Senior Assistant Attorney General, David B. Fife, Jennifer D. Roorback, Assistant Attorneys General, for appellees.

Judgment affirmed.

Andrews, P. J., and Eldridge, J., concur.

       OCGA § 9-11-56 (c); see Matjoulis v. Integon Gen. Ins. Corp., 226 Ga. App. 459 (1) (486 SE2d 684) (1997).

        Matjoulis, supra, 226 Ga. App. at 459 (1).

       See OCGA § 12-9-1 et seq.

       Id.

       OCGA § 12-8-20 et seq.

       OCGA § 12-8-60 et seq.

       See Northwest Ga. Regional Hosp. v. Wilkins, 220 Ga. App. 534, 535 (1) (469 SE2d 786) (1996).

       OCGA § 50-21-20 et seq.

       OCGA § 50-21-23 (a).

        Wilkins, supra, 220 Ga. App. at 536 (1).

       OCGA §§ 12-8-70; 12-9-11.

       OCGA § 12-8-23.1 (b).

       OCGA §§ 12-8-71; 12-9-13.

       OCGA § 12-8-71.

       See id.

       OCGA §§ 12-8-30.6; 12-9-22; 12-9-23; 12-9-24.

       217 Ga. App. 89 (456 SE2d 651) (1995) (physical precedent only).

       See Court of Appeals Rule 33 (a).


text:
    A01A1032.
    CARSON v. THE STATE.
    (553 SE2d 312)
   Miller, Judge.

Everette Lee Carson was convicted of homicide by vehicle in the first degree, reckless driving, and improper lane change, stemming from an accident in which the vehicle he was driving struck a pedestrian who subsequently died. Carson was acquitted of one count of DUI, and the court declared a mistrial on a second count of DUI. On appeal Carson challenges the sufficiency of the evidence to sustain his reckless driving conviction and the grant of the State’s motion to exclude prior misconduct by the arresting officer.

1. Carson argues that the evidence is insufficient to sustain his conviction for reckless driving. On appeal the appellant no longer enjoys a presumption of innocence, and this Court does not weigh the evidence or determine witness credibility. This Court must view the evidence in the light most favorable to support the verdict. Several witnesses testified that they saw Carson’s vehicle swerving, and that Carson drove off the road onto a grassy area where he hit a pedestrian. Under OCGA § 40-6-390, “[a]ny person who drives any vehicle in reckless disregard for the safety of persons or property commits the offense of reckless driving.” Therefore, the evidence was sufficient for a rational trier of fact to find beyond a reasonable doubt that Carson’s actions constituted a reckless disregard for the safety of others.

2. During voir dire, the arresting officer, while standing in a hallway outside the courtroom, overheard a few individuals discussing the legal blood alcohol concentration limit for driving under the influence of alcohol. The officer interrupted the discussion and stated what he believed to be the legal limit. Once the officer realized that the individuals were potential jurors, he immediately walked away. This incident was brought to the attention of the court, and after reprimanding the officer for the improper communication, the court aborted the trial and began a new trial two months later. Prior to the second trial, the State made a motion to exclude reference to the incident, which motion the trial court granted, finding the officer’s actions irrelevant to the case.

Decided July 31, 2001.

Patricia F. Angelí, for appellant.

Robert E. Keller, District Attorney, Bonnie K. Smith, Assistant District Attorney, for appellee.

Carson argues that the court erred in excluding any reference to the incident. Specifically he contends that officer’s conduct shows bias against Carson, thereby affecting the officer’s credibility. Generally “questions of relevance are within the domain of the trial court, and, absent a manifest abuse of discretion, a court’s refusal to admit evidence on grounds of lack of relevance will not be disturbed on appeal.”

Carson is correct that it is permissible to question a witness to reveal any possible bias, but under these circumstances the officer’s statement, although unwise and improper, did not show bias against Carson. The officer was inappropriately attempting to explain what he believed to be a correct statement of law to individuals he was unaware were potential jurors.

Moreover, we see no harm in the exclusion of this incident where a new jury was impaneled and Carson was not convicted of either of the DUI counts. Thus, the court did not abuse its discretion in excluding any reference to the officer’s prior misconduct on the ground of relevance.

Judgment affirmed.

Andrews, P. J., and Eldridge, J., concur.

        Hill v. State, 207 Ga. App. 65, 66 (1) (426 SE2d 915) (1993).

        Gilbert v. State, 222 Ga. App. 787 (1) (476 SE2d 39) (1996); see Shadix v. State, 179 Ga. App. 644, 645 (3) (347 SE2d 298) (1986).

       (Citations and punctuation omitted.) Chapman v. State, 215 Ga. App. 340-341 (449 SE2d 903) (1994).

       OCGA § 24-9-68.

       Cf. Craig v. State, 205 Ga. App. 691-692 (1) (423 SE2d 417) (1992).


author: Ellington, Judge.

text:
    A01A1292.
    ASSOCIATED DOCTORS OF WARNER ROBINS, INC. et al. v. U.S. FOODSERVICE OF ATLANTA, INC.
    (553 SE2d 310)
   Ellington, Judge.

U.S. Foodservice of Atlanta, Inc. (“U.S. Foodservice”) sued Associated Doctors of Warner Robins, Inc. (“ADWR”), Freddie J. Wake-field, and Samuel Taylor on ADWR’s open account, on which Wake-field and Taylor were guarantors. The defendants appeal from the trial court’s order striking their answer and from the denial of their motion to open default. We affirm the trial court’s refusal to open the defaults of Wakefield and Taylor, but reverse the trial court’s decision to strike the answer of ADWR.

The record shows that U.S. Foodservice filed suit against the defendants on August 8, 2000. Wakefield was served personally on August 30, 2000, and was served as the Registered Agent for the corporation on September 6, 2000. Taylor also was served on September 6, 2000. On October 3, 2000, Wakefield filed a pro se “Answers in Writ to Complaints.” On November 7, 2000, U.S. Foodservice moved the court to strike the answer and to enter a default judgment against all defendants.

After receiving the motion to strike, the defendants hired counsel. On November 16, 2000, counsel filed an answer on behalf of all three defendants and also filed a motion to open default. Attached to the motion was an affidavit from Wakefield which alleged that he believed that the account was paid in full and that he believes “when all of the invoices are matched up with the checks which were submitted to US Foodservice, it will show that Defendants do not owe to US Foodservice any amount whatsoever.” Wakefield also stated that he thought that his answer was filed on behalf of himself and Taylor.

On January 9, 2001, the trial court granted U.S. FoodService’s motion to strike, finding that the only answer was filed by Wakefield pro se, and that the answer was both untimely and filed without payment of costs. See OCGA § 9-11-55 (a). The trial court also denied the defendants’ motion to open default, finding that they had failed to establish excusable neglect or providential cause, and this was not a proper case for opening default. The defendants appeal from this ruling.

1. The defendants contend the trial court erred in striking the answer as to ADWR. We agree. Wakefield’s pro se answer was filed within 30 days of service to ADWR and clearly set out defenses on behalf of the corporation. See OCGA § 9-11-12 (a). Since ADWR is a corporation, though, it can be represented in a court of record only by an attorney, so that “the answer filed by its nonattomey [officer] was defective. This was an amendable defect, however, which was cured pursuant to OCGA § 9-11-15 when, prior to entry of a pretrial order, an attorney representing [ADWR] filed an amended answer, which related back to the date of the original answer.” (Citations omitted.) Peachtree Plastics v. Verhine, 242 Ga. App. 21, 22 (528 SE2d 837) (2000). See also Eckles v. Atlanta Technology Group, 267 Ga. 801, 805 (2) (485 SE2d 22) (1997); North Ga. Med. Center v. Food Lion, 238 Ga. App. 78 (517 SE2d 799) (1999). Since the November 16, 2000 amended answer filed by counsel related back to the timely filing of the original answer filed by Wakefield on behalf of the corporation, any defect was cured. Therefore, the trial court erred in striking ADWR’s amended answer.

2. This same analysis does not apply to Taylor, however. Under OCGA § 9-11-11 (a), pleadings on behalf of a party who is represented by an attorney must be signed by that attorney. A party who is not represented by an attorney must sign his own pleading. Id. Because Taylor failed to sign the October 3, 2000 answer or have an attorney file an answer on his behalf within 30 days of service, he was in default as a matter of law. OCGA §§ 9-11-11 (a); 9-11-12 (a); 9-11-55 (a).

The Supreme Court’s ruling in Eckles v. Atlanta Technology Group, 267 Ga. at 805 (2), does not change this result. In Eckles, the Court allowed a pleading which was signed by an agent on behalf of a corporation to be cured by amendment, explaining that a corporation is an “artificial, not a natural, person” that acts only through its agents. A corporation “can deal with the world in no other way. [Therefore,] it has long been recognized . . . that a corporation can appear [in litigation] only by attorney, while a natural person may appear for himself? (Citations and punctuation omitted; emphasis supplied.) Id. at 803 (2). In this case, Taylor failed to hire an attorney or to “appear for himself” before defaulting, and the November 16, 2000 answer did not cure this oversight.

3. Further, the November 16, 2000 answer could not relate back to the October 3, 2000 answer to provide a defense for Wakefield. Wakefield’s original pro se answer was filed more than 30 days after he received personal service and was, therefore, invalid as untimely. See OCGA §§ 9-11-12 (a); 9-11-15. Therefore, like Taylor, Wakefield defaulted as a matter of law. OCGA § 9-11-55 (a). Further, both Taylor and Wakefield failed to open the default as a matter of right by filing a valid answer with costs within 15 days of default. Id.

4. The defendants contend that the trial court abused its discretion in failing to open the default. We disagree.

After 45 days have passed since service, and as long as judgment has not been entered in the case, the trial court “may allow the default to be opened for providential cause preventing the filing of required pleadings or for excusable neglect or where the judge, from all the facts, shall determine that a proper case has been made for the default to be opened, on terms to be fixed by the court.” OCGA § 9-11-55 (b). The trial court’s decision on whether to open default will not be reversed by this Court absent an abuse of discretion. Ellis v. Five Star Dodge, 242 Ga. App. 474, 475 (1) (529 SE2d 904) (2000).

Decided July 31, 2001.

Langdale, Vallotton, Linahan & Wetherington, William P. Langdale III, for appellants.

James W. Martin, for appellee.

Although the defendants contend that Wakefield’s mistaken belief that he had filed a timely, proper answer on behalf of all defendants amounted to excusable neglect or, in the alternative, presented a “proper case” for opening default, the trial court rejected this argument. The facts and circumstances of this case do not demand a contrary finding. Accordingly, we find that the trial court did not abuse its discretion in denying the defendants’ motion to open default.

Judgment affirmed in part and reversed in part.

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

       In reaching this conclusion, it is unnecessary to reach the defendants’ second enumeration, which is whether the language of the October 3, 2000 answer should be construed broadly to encompass Taylor’s defenses to this action.


author: Eldridge, Judge.

text:
    A01A1470.
    COLEMAN v. GRIMES.
    (553 SE2d 185)
   Eldridge, Judge.

This is an appeal from the Superior Court of Putnam County’s decree of adoption in which the trial court terminated the parental rights of appellant Devin Patrick Coleman to his daughter, five-year-old K. C., under the aegis of OCGA § 19-8-10 (a) (1) and (b) (1) and (2) and in conjunction with permitting K. C. to be adopted by her stepfather, appellee William “Tommy” Grimes, pursuant to OCGA § 19-8-6 (1). While often steeped in emotional conflict, an appeal from an order of adoption is just as often fairly straightforward, because “in matters of adoption the superior court has a very broad discretion which will not be controlled by the appellate courts except in cases of plain abuse.” However, this case presents a unique set of circumstances which, as explained below, requires us to find an abuse of the trial court’s discretion in terminating Coleman’s parental rights. Consequently, we must reverse the instant decree of adoption as ordered by the Superior Court of Putnam County.

The record of the adoption proceedings shows that Coleman and Angie D. Treece were co-habitating in 1995 when Treece became pregnant. Coleman and she continued to live together throughout the pregnancy, with Coleman aiding in the support of Treece. K. C. was born on November 24, 1995, and Coleman was the named father on K. C.’s birth certificate; Coleman and Treece were both 19 years old at the time of K. C.’s birth. They continued to live together for another 15 months, with Coleman aiding in the support of the child.

In February 1997, Coleman and Treece separated. Treece took K. C. and, during the month of February, moved to Cartersville, Georgia. That same month, Treece met appellee Grimes and began living with him. The couple then moved to Duluth with K. C. They remained in Duluth for ten months. Coleman continued to have contact with K. C. and Treece during the Duluth residency; as stated by Treece, “From the time we split up, we had contact until after I moved from Duluth.” Coleman attempted to provide support for K. C. during this period, as well.

In February 1998, Grimes and Treece moved with K. C. to Marietta, Georgia: “And he [Coleman] knew we were there. He had contact [sic] us.” Five months later, Grimes and Treece moved with K. C. to Mississippi. Treece did not tell Coleman that they were moving to Mississippi. From the following bit of circular reasoning contained in the record, it seems clear that Treece believed the responsibility of keeping in contact with K. C. during Treece’s continuous residence changing belonged to Coleman, alone:

[Defense Counsel:] [Did you notify Coleman] that you were taking [K. C.] out of the State of Georgia?
[Treece:] No.
[Defense Counsel:] And why didn’t you do that?
[Treece:] Because I didn’t have a number for him.
[Defense Counsel:] Did you try to find a number for him?
[Treece:] No, I did not.
[Defense Counsel:] Why didn’t you do that?
[Treece:] Because he didn’t want to contact — he didn’t stay in contact with me.
[Defense Counsel:] How can he stay in contact with you if he doesn’t even know what state you’re living in.
[Treece:] Oh, he did.
[Defense Counsel:] You just testified that he didn’t know you were in Mississippi.
[Treece:] Because I didn’t tell him. Well, there was another party that informed him of where we were.
[Defense Counsel:] And you don’t think that it is your responsibility to tell the father of your child where you are at?
[Treece:] If I don’t have a way to contact him.

Coleman lost contact with K. C. when she was moved to Mississippi. Three months later, in November 1998, Grimes and Treece moved with K. C. to Acworth, Georgia. At that point, K. C. had been moved five times in the twenty months since Coleman and Treece separated. Again, Treece did not tell Coleman that she had moved K. C., this time back to Georgia. Coleman testified that he found out about K. C.’s return to Georgia in April 1999, while Treece testified that Coleman found out about K. C.’s return in December 1998. Whichever date is correct, however, it is undisputed that Coleman learned of his child’s whereabouts only because he made the effort to track her down. As Treece testified, “he showed up on our door [in Acworth] and he informed me that he had gone to my father’s house and asked them where we were and, basically, my father pointed him in the direction and he knocked at our door.” Coleman testified that “[e]very time I found where she [K. C.] was, I would call and ask to see my daughter and offer child support.” In addition, Coleman was registered with the Department of Human Resources’ putative father registry.

Coleman further testified that, after he located K. C. in Acworth, “I would call at least every weekend and ask to see my daughter and to give her cash or whatever. She [Treece] would not accept because then she would feel that would give me the right to see my daughter.” Treece, on the other hand, testified that she never received any cash from Coleman and that she did not try to prevent him from seeing K. C.

On May 5, 1999, Coleman attempted to visit K. C. at the Acworth residence and give Treece $50 toward support. Coleman testified that Treece refused to permit him to visit K. C. and refused the child support payment. During this May meeting, Treece also informed Coleman that she and Grimes would be moving with K. C. to Eatonton, Georgia, some time in the future; “I just said Eatonton.” “I said, ‘If you want to find out where we’re moving, you need to call us before we move.’ ”

At that point, Coleman had already retained an attorney, and, on May 27, 1999, a petition to legitimate K. C., Coleman v. Treece, CV99-1187, was filed on Coleman’s behalf in the Bartow County Superior Court, which was Coleman’s county of residence. Coleman testified that “after she wouldn’t let me see my daughter, and that’s when I tried to — that’s when I went for legitimation so it would be all legal, and she couldn’t refuse the money.” That same day, May 27, 1999, an “Acknowledgment of Service and Waiver of Hearing” was filed. The acknowledgment, signed by Treece, stated, “The undersigned Defendant on the above-styled case [Coleman v. Treece, CV991187] hereby acknowledges personal service of the Petition to Legitimate a Child, and I also waive all hearings in this action and all additional service of process is hereby waived.” Treece’s signature was notarized.

Two months later, in July 1999, Treece married appellee Grimes. In November 1999, they moved to Putnam County, where Grimes’ “family has owned property in Eatonton hundreds of years.” The next month, Coleman went to the empty Acworth residence with a Christmas gift for K. C.; apparently, this was how he learned that K. C. had been moved again.

Although Treece had told Coleman that they were moving “to Eatonton,” her residence with K. C. was actually in rural Putnam County, not in the town of Eatonton. Further, although Grimes was in the telephone book, he was listed under the name “William T. Grimes,” not “Tommy Grimes,” the name by which Coleman knew him. Treece testified that in March 2000, four months after she moved, she telephoned Coleman and left a message on his answering machine with K. C.’s new address and telephone number. Coleman testified that Treece called him and left only a telephone number; “she gave a phone call, gave me a phone call, gave me her phone number and then I tried the Internet, but anyway, eventually I got her address.” Coleman testified that prior to that time, he could not communicate with K. C. or offer support “[b]ecause I had no contact and did not know where they were — she was.” Thereafter, he called Treece to work things out: “after she did call and left her phone number and I did find out where she was, anytime I would try to set anything up, she would disagree and we would have conversations over the phone.”

At the end of July 2000, a petition for Grimes’ adoption of K. C. was prepared. In conjunction, Treece prepared a “Mother’s Affidavit” as required under the statute for stepparent adoption, OCGA § 19-8-6 (g). Therein, Treece swore under oath that Coleman “Has not provided for my support (including medical care) during my pregnancy or hospitalization for the birth of the child; and Has not made any attempt to legitimate the child.”

On August 4, 2000, the petition for adoption and attached mother’s affidavit were filed; Coleman was noticed on August 11, 2000. Coleman attempted to call K. C. and send support money.

A hearing on the adoption petition had already been scheduled for October 17, 2000. Coleman’s attorney filed a defense and answer to the petition on September 11, 2000. Thereafter, on September 21, 2000, Coleman’s attorney filed a Notice of Pending Legitimation in Bartow County. On September 27, 2000, Grimes’ attorney sent Coleman’s attorney a letter requesting that Coleman cease any further attempts to pay child support or to telephone K. C.: “Please ask your client to refrain from any further contact with my clients or the child and let’s see how the [adoption/termination] hearing goes.”

For 16 months, since May 1999, Treece had not responded to Coleman’s petition for legitimation. A final hearing thereon was set in Bartow County Superior Court for October 5, 2000. The parties were noticed on September 25, 2000. On October 3, 2000, Grimes’ attorney requested and received by agreement of the parties a continuance of the legitimation hearing until October 12, 2000.

Thereafter, on October 4, 2000, Grimes’ attorney prepared an answer to the legitimation petition and sought therein a further continuance “until after October 17, 2000 which is the date of the Final Hearing of the proceedings in Case Number 20000A6-08 of Putnam Superior Court in which proceedings the Defendant in this action is seeking the termination of Plaintiff’s rights in this action to the minor child.” While Grimes claims that such answer was filed, the copy in the record before us bears no filing stamp, and there is no evidence in the record that the answer was filed.

On October 10, 2000, Grimes’ attorney filed a written motion to further continue the legitimation hearing because the October 17 adoption/termination hearing “would be dispositive, perhaps, of those issues” and because Grimes’ attorney was “unable to drive up there [Bartow County] based on doctor’s orders.” No doctor’s orders are made a part of the record in this case. The Superior Court of Bar-tow County denied the attorney’s request for continuance “due to the fact that the Petition to legitimate was continued for over one (1) year and the Defendant [Treece] filed no answer and this case has been pending longer than the Adoption Petition.” Apparently, the Bartow County Superior Court determined that, in the interest of fairness, Coleman’s sixteen-month-old petition to legitimate K. C. and obtain the rights of a legal father should be addressed before Grimes’ two-month-old petition to terminate his parental rights: “The Court is aware of the Petition to Terminate the Plaintiff’s rights to the minor child filed in Putnam County Superior Court, but elects to proceed with the Legitimation Petition because of the Plaintiff’s explicit rights to file such action as recognized in OCGA § 19-8-12 (e) and OCGA § 19-7-22.”

On October 12, 2000, the Superior Court of Bartow County heard Coleman’s petition to legitimate K. C. Grimes did not file a motion to intervene in the legitimation proceeding, and neither Grimes, Treece, nor counsel for same was present at the hearing. Thus, the Bartow County Superior Court heard uncontroverted testimony. No transcript of the hearing is before this Court. Thereafter, on October 12, 2000, the Bartow County Superior Court rendered an order, making the following findings of fact:

that Coleman “lived with and cared for said minor child for two (2) years before the parties separated”; that Coleman “was paying support for the minor child and having visitation with the minor child on a regular basis until May, 1999”; that such regular support was disrupted due to the fact that, after May, 1999, Treece “left with the minor child without notifying the Plaintiff of her or the minor child’s whereabouts”; that Coleman “has had a relationship with the minor child”; and that Coleman “is the biological father of the minor child and his petition to legitimate is hereby granted.”

In its order, the court also ordered child support payments of $100 per week and visitation rights. No attempt to challenge the Bartow County ruling is in the record before us. Following the court’s order, Coleman immediately attempted to comply with the child support terms and also sought visitation. The checks were returned, and Treece would not permit Coleman to see K. C.

Five days later, on October 17, 2000, the Superior Court of Putnam County heard Grimes’ petition to terminate Coleman’s parental rights and adopt K. C. Therein, Grimes, Treece, Coleman, and Coleman’s girlfriend testified as reflected above. During the hearing, Grimes’ counsel admitted that Treece had made a false statement on her “Mother’s Affidavit,” but claimed “[m]y client never knew that the pleadings had been filed.” Nonetheless, the Putnam County Superior Court specifically found that Treece swore in the “Mother’s Affidavit” Coleman “had not made any attempt to legitimate,” when “She knew better than that. She had signed the consent to legitimation in May of 1999. She knew he had made some attempt to legitimate this child.” Thereafter, however, the court determined that the affidavit was in “substantial compliance” with the requirements of OCGA § 19-8-26 (h), notwithstanding the false statements contained therein.

In addition, the Putnam County Superior Court was aware of the prior Bartow County order and legitimation, but the court determined that such prior ruling had no impact on the instant proceeding.

Subsequently, in a November 13, 2000 order dated nunc pro tunc to October 17, 2000, the court made the following findings of fact:

that the child has been abandoned by the biological Father, Devin Patrick Coleman, pursuant to OCGA § 19-8-10 (1) (a) and additionally that the biological Father for a period of one year or longer immediately prior to the filing of the Petition for Adoption in this action, without justifiable cause, has significantly failed to communicate or make a bona fide attempt to communicate with the child in a meaningful, supportive, parental manner or to provide for the care and support of that child as required by law.

The Superior Court of Putnam County terminated Coleman’s parental rights to K. C. and granted the petition for adoption. A motion for new trial was filed on Coleman’s behalf, and a hearing was held thereon. During the course of the hearing, Grimes’ attorney protested the fact that Coleman was still attempting to see K. C. “because he thinks he’s got visitation rights somehow or other because he legitimated the child.” In addition, Coleman’s child support checks were refused and returned. The court denied the motion for new trial, and the order carried the stipulation that

Devin Patrick Coleman Shall not attempt to exercise any visitation rights he may have during the pendency of this action and his failure to do so shall not be considered against him. Additionally any child support payments made by respondent for the benefit of the child shall be made to his attorney who shall hold the same in her trust account until further order of this court.

This appeal followed. Held:

1. Coleman contends that the doctrine of collateral estoppel bars the basis upon which his parental rights to K. C. were terminated. We agree.

(a) The doctrine of collateral estoppel, also known as estoppel by judgment, is similar to res judicata, but not identical.

Generally, res judicata bars relitigation of any matter of a cause of action that was, or could have been, put in issue and adjudicated in a prior proceeding between the same parties, while estoppel by judgment prevents relitigation in a subsequent suit [ — ] involving a different cause of action [ — ] a matter which was actually adjudicated in a former case. Neither defense, however, is available unless the subsequent suit is between the same parties or their privies.

“Privity connotes those who are in law so connected with a party to the judgment as to have such an identity of interest that the party to the judgment represented the same legal right.” And where this identity of interest is found to exist, “all are alike concluded and bound by the judgment.” While a husband and wife relationship alone does not create privity for purposes of collateral estoppel or res judicata, in this case Treece was a party in the Bartow County proceeding where she was the named defendant with the legal right to contest Coleman’s attempt to establish his status as K. C.’s “legal father.” As Treece’s husband and stepfather to K. C. with a petition pending to terminate Coleman’s parental rights and establish his own status as K. C.’s “legal father,” Grimes was in privity with Treece in the Bartow County action: Treece “represented her husband’s interests, and [could have] asserted the same legal rights relative to those interests,” in the Bartow County action. Grimes and Treece had an identity of interest in the Bartow County judgment and would both be bound thereby in relation to K. C.; further, Grimes had a mutual legal right to contest the establishment of Coleman’s parental rights in Bartow County, and indeed, Grimes had the right to intervene in the legitimation proceeding for just such purpose. In addition, Treece was in privity with Grimes in the Putnam County termination proceedings wherein her consent to Grimes’ adoption of K. C. was essential; her affidavit purporting to outline Coleman’s failure to exercise parental rights was required; and Grimes fully represented her interests and purpose in seeking the termination of Coleman’s parental rights to K. C.

As such, both Grimes and Treece had a full opportunity in Bar-tow County to litigate whether Coleman abandoned his interest in K. C. through his conduct toward Treece, the child, or otherwise and, thus, prevent legitimation. In Bartow County, Grimes and Treece could have litigated whether Coleman was “fit” to assume his parental rights using the same reasons they asserted in their Putnam County petition and affidavit as a basis for terminating those rights. Even their attorney recognized that the Bartow County proceeding “would be dispositive” of the same issues raised in Putnam County as a basis for terminating Coleman’s parental rights. “The subject matter was identical in both actions. [Grimes and Treece] had a full opportunity in the first action to litigate each and every claim existing between the parties which touched on [the issue of Coleman’s fitness to assume parental rights to K. C.] It was [their] duty to do so.”

However, this was not done. Instead, it appears that attempts to delay the Bartow County legitimation proceedings were made so that the same issues could be litigated in a different forum, perhaps anticipated to be more favorable to Grimes and Treece. In so doing, no objection to the legitimation appears of record, and the transcript of that prior hearing is not before us. Accordingly, we must assume that the judgment of legitimation in Bartow County was correct and authorized by the evidence.

As such, the Superior Court of Bartow County determined that Coleman did not abandon K. C. and that he is a “fit” parent to have custody of the child. As facts essential to the judgment, the Bartow County Superior Court specifically found that Coleman was financially supporting K. C. and had developed a relationship with her through visitation until such conduct was disrupted by the actions of Treece, who disappeared with K. C. without notifying Coleman of their whereabouts. Thus, because of Treece’s actions, not Coleman’s inactions, he did not know where K. C. was located in order to pursue visitation and financial support. There is nothing in the record demonstrating the Bartow County judgment was ever challenged. “A judgment of a court of competent jurisdiction shall be conclusive between the same parties and their privies as to all matters put in issue or which under the rules of law might have been put in issue in the cause wherein the judgment was rendered until the judgment is reversed or set aside.” Consequently, Grimes and Treece are estopped from relitigating in the Putnam County proceeding to terminate Coleman’s parental rights precisely the same issues previously determined in Bartow County when granting Coleman parental rights. Thus, the Putnam County Superior Court’s factual findings that Coleman abandoned K. C. and unjustifiably failed to provide support or pursue visitation — findings in direct contradiction to the prior Bartow County Superior Court’s findings underpinning its judgment — provide no basis for the termination of Coleman’s parental rights. Reversal of the Putnam County judgment is required.

(b) Upon remand and retrial of the petition for adoption/termination of parental rights, the Superior Court of Putnam County should defer to the findings of fact made in Bartow County with regard to Coleman’s conduct toward K. C. and his attempts to establish a familial bond. Clearly, there is no evidence of abandonment under OCGA § 19-8-10 (a), because, even from the evidence adduced in Putnam County, there is no evidence whatsoever of “an actual desertion, accompanied by an intention to sever entirely, as far as possible to do so, the parental obligations and forego all parental duties and claims.” Further, considering the number of times K. C. has been moved from residence to residence, Treece’s admitted failure to timely communicate the location of each new residence, her false statements in the “Mother’s Affidavit,” the Bartow County Superior Court’s determination that it was the actions of Treece that disrupted the familial bond between Coleman and K. C., and Coleman’s repeated attempts to comply with his rights as a legal father as soon as such rights were established, it is unlikely Grimes could show under the “clear and convincing” standard required to support a termination of parental rights that Coleman’s conduct met one of the two alternative grounds for terminating his rights under OCGA § 19-8-10 (b): failure for at least one year, without justifiable cause, to communicate meaningfully with or provide support for the child.

2. Coleman contends the trial court erred in denying his motion for new trial based on the fact that the “Mother’s Affidavit” filed by Treece contained false statements. We agree.

OCGA § 19-8-6 (g) states that “Whenever the legal mother . . . consents to the adoption of her child by her spouse pursuant to this Code section, she shall execute an affidavit meeting the requirements of subsection (h) of Code Section 19-8-26.” Subsection (h) (1) (G) of OCGA § 19-8-26 states, inter alia, that the affidavit of a legal mother “shall set forth: . . . Whether or not the biological father of the child has lived with the child, contributed to its support, provided for the mother’s support or medical care during her pregnancy or during her hospitalization for the birth of the child, or made an attempt to legitimate the child.” The sworn information required in the “Mother’s Affidavit” supplies factors for the court to consider in making a determination as to whether the father has abandoned the child or instead has established a familial bond with the child. “The purpose of the mother’s affidavit, as stated on the form itself, is to gather information to be used by the [court] in notifying and determining the rights of the father. It does not purport to protect or otherwise affect the rights of the mother.” Moreover, 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.” Such statutes governing the surrender of parental rights and adoption must be strictly construed in favor of the biological parent whose rights are at issue: “Adoption laws are to be strictly construed in favor of natural parents, for the application thereof results in the severance forever of the paternal relation.”

Here, in the “Mother’s Affidavit,” the record shows that Treece swore falsely both that Coleman had not provided support during her pregnancy and that Coleman had made no attempt to legitimate K. C. These false statements were directly related to the issues of abandonment and the establishment of a parental bond, both material elements in a petition to terminate parental rights. And the Putnam County Superior Court specifically determined that Treece “knew better” at the time she made the false statements. While the trial court correctly noted that an affidavit which is in “substantial compliance” with the form outlined in OCGA § 19-8-26 (h) is permissible, the form of the affidavit is not what is at issue here. In this case, the substance of the affidavit is knowingly false.

Decided July 31, 2001

Josie L. Redwine, for appellant.

Donald W. Huskins, for appellee.

Strictly construing the statute in favor of Coleman, as we must, we cannot say that the “Mother’s Affidavit” containing knowingly false statements purporting to address the material issues of Coleman’s lack of parental involvement “substantially complies” with the requirements of OCGA §§ 19-8-6 (g) and 19-8-26 (h) so as to sustain a judgment terminating Coleman’s parental rights based thereon.

3. Grimes moves to dismiss the instant appeal as untimely filed because the order denying Coleman’s motion for new trial was filed on February 26, 2001, while the notice of appeal therefrom was dated January 29, 2001. This contention is meritless. Despite its filing date, the order from which Coleman appeals was dated nunc pro tunc to January 9, 2001, the date on which the trial court first denied the motion for new trial following a hearing thereon. This is a proper use of a nunc pro tunc filing, which is “an entry made now of something actually previously done to have effect of former date.” Dating the order denying the motion for new trial “nunc pro tunc” gave the order “retroactive effect [to January 9, 2001], i.e., with the same effect as if regularly done.” Thus, Coleman’s notice of appeal, dated January 29, 2001, fell within the statutory period for timely filing from the denial of his motion for new trial pursuant to OCGA § 5-6-38 (a). And Grimes’ motion to dismiss is denied.

Judgment reversed and case remanded.

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

       (Citations and punctuation omitted.) Bateman v. Futch, 232 Ga. App. 271, 274 (2) (501 SE2d 615) (1998).

       Although Treece ultimately married appellee Grimes, we will refer to her as “Treece” throughout this opinion for clarity’s sake.

       We reject Grimes’ contention that the issue of collateral estoppel is waived because it was not raised in Coleman’s answer. Hardy v. Ga. Baptist Health Care Systems, 239 Ga. App. 596, 597 (521 SE2d 632) (1999). A review of the record shows that such issue was fairly raised and was before the court through responsive filings in opposition to the adoption, as well as the filing of the prior Bartow County pleadings and order thereon.

       (Citations and punctuation omitted.) Miller v. Steelmaster Material Handling Corp., 223 Ga. App. 532, 535 (3) (478 SE2d 601) (1996).

       (Citations and punctuation omitted.) Macuch v. Pettey, 170 Ga. App. 467, 469 (2) (317 SE2d 262) (1984).

       (Citations and punctuation omitted.) Pinkard v. Morris, 215 Ga. App. 297, 298 (1) (450 SE2d 330) (1994).

        Aycock v. Calk, 228 Ga. App. 172, 175-176 (491 SE2d 383) (1997).

        Waldroup v. Greene County Hosp. Auth., 265 Ga. 864, 866 (1) (463 SE2d 5) (1995).

        Macuch v. Pettey, supra at 469; Miller v. Charles, 211 Ga. App. 386, 387-388 (439 SE2d 88) (1993).

       OCGA § 9-11-24 (a) (2); In re Ashmore, 163 Ga. App. 194 (293 SE2d 457) (1982) (any interested party may file objection to legitimation petition). See also Hardy v. Arcemont, 213 Ga. App. 243, 246 (3) (444 SE2d 327) (1994).

        Macuch v. Pettey, supra at 469; Miller v. Charles, supra at 387-388.

       See In re Baby Girl Eason, 257 Ga. 292 (358 SE2d 459) (1987) (in legitimation, trial court must determine whether the father had abandoned his opportunity interest through his conduct with regard to the mother and the child and otherwise). See also LaBrec v. Davis, 243 Ga. App. 307 (534 SE2d 84) (2000).

       (Citations and punctuation omitted.) Buford-Clairmont Co. v. Cato Corp., 241 Ga. App. 50, 54 (4) (526 SE2d 104) (1999).

        Gregg v. Barnes, 203 Ga. App. 549, 551 (417 SE2d 206) (1992).

        Turner v. Wright, 217 Ga. App. 368, 369-370 (457 SE2d 575) (1995).

       OCGA § 9-12-40.

       (Citations and punctuation omitted.) Spires v. Tarleton, 225 Ga. App. 117, 119 (2) (483 SE2d 337) (1997).

       Id. at 119. See also Clark v. Wade, 273 Ga. 587 (544 SE2d 99) (2001) (termination of parental rights requires “clear and convincing” standard of proof).

        Cowdell v. Doe, 225 Ga. App. 97, 99 (483 SE2d 347) (1997).

       (Citation and punctuation omitted.) Mabou v. Eller, 232 Ga. App. 635, 638 (2) (c) (502 SE2d 760) (1998).

       (Citations and punctuation omitted.) In re Stroh, 240 Ga. App. 835, 840 (1) (b) (i) (523 SE2d 887) (1999).

        In the Interest of A. N. M., 238 Ga. App. 21, 24-25 (517 SE2d 548) (1999).

       (Citation and punctuation omitted.) Jones v. Sauls, 213 Ga. App. 55, 58 (3) (c) (443 SE2d 693) (1994).

       Compare Families First v. Gooden, 211 Ga. App. 272, 274-275 (2) (439 SE2d 34) (1993) (knowingly false statements in mother’s affidavit do not require reversal when mother attempts to reverse adoption based thereon, and “it would [be] inequitable to allow the ... mother to profit by her own intentional misconduct.” Spires v. Tarleton, supra at 118 (1)).

        Spires v. Tarleton, supra.

       (Citations omitted.) Andrew L. Parks, Inc. v. SunTrust Bank, 248 Ga. App. 846, 848 (545 SE2d 31) (2001).

       (Citation and punctuation omitted.) Mullins v. State, 224 Ga. App. 218, 219 (1) (480 SE2d 264) (1997) (Beasley, J., concurring specially).


text:
    A01A1526.
    MOSELY v. THE STATE.
    (553 SE2d 197)
    Decided July 31, 2001.

      John S. Wetzler, for appellant.
   Ellington, Judge.

A Jeff Davis County jury convicted Terrance Jay Mosely of armed robbery, OCGA § 16-8-41 (a). Mosely appeals from the denial of his motion for new trial, contending the trial court erred in admitting his custodial statement. Finding no error, we affirm.

Mosely argues that the trial court erred in ruling that his custodial statement was freely and voluntarily made and without the hope of benefit. He contends he gave a statement so that the police would “go easier” on him and he “would get mercy of the Court.” At a Jackson-Denno hearing, the State established that Mosely was taken into custody very shortly after the May 17, 2000 armed robbery of a Hazlehurst convenience store. Upon Mosely’s arrest and again immediately prior to his interview at the jail, an investigator read Mosely each of the Miranda warnings from a card. Mosely agreed to speak with the investigator without an attorney present. He signed a written statement admitting his involvement in the robbery. The investigator testified that he made no threats or promises to induce this statement, and that Mosely agreed to talk of his own free will.

In ruling on the admissibility of an in-custody statement, a trial court must determine whether, based upon the totality of the circumstances, a preponderance of the evidence demonstrates that the statement was made freely and voluntarily. Reinhardt v. State, 263 Ga. 113, 115 (3) (b) (428 SE2d 333) (1993). Although Mosely testified that an officer told him that if he cooperated, the police would “go easier” on him, the officer who was present and read Mosely his Miranda warnings testified to the contrary. “Unless clearly erroneous, a trial court’s findings as to factual determinations and credibility relating to the admissibility of [the defendant’s statement at a Jackson-Denno hearing] will be upheld on appeal.” (Citations and punctuation omitted.) Scott v. State, 240 Ga. App. 50, 51 (2) (522 SE2d 535) (1999). The trial court was authorized to accept the investigator’s testimony and reject Mosely’s self-serving explanation. Considering the totality of the circumstances, the record supports the determination that Mosely’s statements were freely and voluntarily made and without the promise of leniency.

Judgment affirmed.

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

Stephen D. Kelley, District Attorney, Jan Kennedy, Assistant District Attorney, for appellee.

       See Jackson v. Denno, 378 U. S. 368 (84 SC 1774, 12 LE2d 908) (1964).

       See Miranda v. Arizona, 384 U. S. 436 (86 SC 1602, 16 LE2d 694) (1966).