text:
    A96A1056.
    FOSTER v. THE STATE.
    (474 SE2d 38)
   McMurray, Presiding Judge.

Defendant’s convictions for burglary and giving a false name to a law enforcement officer were affirmed on direct appeal, but the case was remanded for an evidentiary hearing on his claim of ineffective assistance of counsel. Foster v. State, 218 Ga. App. 569 (462 SE2d 455). After a hearing, the trial court determined that “Defendant did not waive his right to claim ineffective assistance of counsel.” The trial court further determined that defendant “failed to show that his counsel was ineffective or conducted the trial so ineffectively [that] the outcome of the case, based upon evidence presented, would have been different.” This appeal followed. In his sole enumeration, defendant contends the trial court erred in overruling his motion for new trial on the special ground of ineffective assistance of counsel. Held:

On appeal, defendant urges that a “review of [trial] counsel’s cross[-]examination questions [reveals] no defense tactics and . . . ask[s] this Court to find [such] absence equates to ineffective assistance of counsel.”

“In the absence of testimony to the contrary, counsel’s actions are presumed strategic. Stanley v. Zant, 697 F2d 955 (11th Cir. 1983), cert. denied, 467 U. S. 1219 (1984).” Earnest v. State, 262 Ga. 494, 496-497 (5) (422 SE2d 188). “The decisions on which witnesses to call, whether and how to conduct cross-examinations, what jurors to accept or strike, what trial motions should be made, and all other strategies and tactical decisions are the exclusive province of the lawyer after consultation with [the] client.” (Citations and punctuation omitted.) Johnson v. State, 214 Ga. App. 77 (1), 79 (447 SE2d 74).

In the case sub judice, defendant took the stand and admitted giving a false name to a law enforcement officer. He defended the burglary charge on the basis of abandonment, a circumstance the jury chose not to believe. Thus, in the case sub judice, “ ‘it is not necessary to address specifically and individually each and every one of [defendant’s] instances of challenged trial tactics. It is sufficient to note that “strategic choices (made) after thorough investigation . . . are virtually unchallengeable.” Strickland (v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674).) (Cit.) The trial court (in the case sub judice) found, and the evidence supports the finding, that trial counsel thoroughly investigated the case and prepared for trial[, knowing that defendant’s accomplice would testify against him]. (Defendant) has shown nothing that would demonstrate that his trial counsel failed to exercise reasonable professional judgment in (the) handling of (defendant’s) case. See Ferrell v. State, 261 Ga. 115 (3) (401 SE2d 741) (1991).’ Stephens v. State, 265 Ga. 120, 121 (2), 122 (453 SE2d 443). The fact that defendant and his present counsel now claim they would have conducted the trial differently does not establish the ineffectiveness of trial counsel. Robinson v. State, 210 Ga. App. 278, 279 (3), 280 (435 SE2d 718). This enumeration is without merit.” Hudson v. State, 218 Ga. App. 671, 673 (1) (b) (462 SE2d 775).

Judgment affirmed.

Johnson and Ruffin, JJ, concur.

Decided June 20, 1996

Reconsideration denied July 11, 1996.

David E. Slemons, for appellant.

Daniel Foster, pro se.

Britt R. Priddy, District Attorney, Gregory W. Edwards, Assistant District Attorney, for appellee.


source: Caselaw Access Project

author: Beasley, Chief Judge.

license: Public Domain

text:
    A95A0587.
    GEORGE v. SOUTHWIRE COMPANY.
    (474 SE2d 768)
    Decided July 11, 1996.
    C. H. Lumpkin, Jr., for appellant.

      Smith, Wallis & Scott, Kenneth A. Smith, for appellee.
   Beasley, Chief Judge.

In Southwire Co. v. George, 266 Ga. 739 (470 SE2d 865) (1996), the Supreme Court affirmed the judgment of this Court but remanded the case with the direction that we remand the case to the Board for further findings under the correct legal standard. Accordingly, the judgment of the Supreme Court is made the judgment of this Court, the judgment appealed is reversed, and the case is remanded for further findings.

Judgment reversed and case remanded.

Pope, P. J., and Ruffin, J., concur.


author: Judge Harold R. Banke.

text:
    A96A0641.
    In the Interest of A. V. B., a child.
    (474 SE2d 114)
   Judge Harold R. Banke.

The Dougherty County Department of Family and Children Services (“DFCS”) obtained temporary custody of A. V. B. for up to 18 months beginning on October 11, 1993, after the juvenile court found that she was deprived. The court determined that A. V. B. was in a “runaway status” due to conflict at home with her father. The court later extended the temporary custody order on June 12, 1995, for up to two more years. A. V. B.’s mother is deceased but the parental rights of her father, allegedly presently incarcerated, have never been terminated.

After DFCS obtained custody, it unsuccessfully attempted various placements of A. V. B. and, ultimately, placed A. V. B. in Southwestern Regional Hospital (“Southwestern”), a state psychiatric facility located in Thomasville. In February 1995, A. V. B.’s attorney, Greg Bagley, successfully accomplished A. V. B.’s release from Southwestern based on Southwestern’s examining psychiatrist’s conclusion that A. V. B. was not clinically depressed or a danger to herself or others. On the same day A. V. B. was discharged from Southwestern, DFCS arranged for A. V. B.’s admission to West Central Georgia Regional Hospital (“West Central”) in Columbus, another psychiatric facility, where A. V. B. currently resides.

Appellant, the Georgia Advocacy Office (“GAO”), is a non-profit corporation designated by the Governor as the agency in Georgia to act under the federal Protection and Advocacy for Individuals with Mental Illness Act of 1986, 42 USC § 10801 et seq. (“the Act”). GAO seeks to protect individuals with mental illness from abuse, neglect, and violation of legal rights. After receiving a complaint about the treatment and life conditions of A. V. B. in the psychiatric unit at West Central, GAO initiated an investigation. GAO claims that its attempts to communicate and negotiate with DFCS about A. V. B.’s care were consistently ignored or rebuffed. Eventually, GAO filed a deprivation petition in which it asserted that DFCS had abused, neglected, and abandoned the child. GAO sought to have the court make a finding of deprivation and divest DFCS of temporary legal custody of A. V. B. GAO alleged that DFCS abandoned A. V. B. and committed her to a state psychiatric institution for its own convenience to avoid difficulties with placing her in a foster or group home. GAO contended that A. V. B. is improperly an in-patient at West Central, and that DFCS for years has mistreated and abandoned A. V. B. At no time did GAO seek custody of A. V. B., but rather sought the transfer of custody to, e.g., Lee County DFCS or another entity.

The Juvenile Court of Dougherty County dismissed the deprivation petition, denied GAO’s motion for review of Dougherty Juvenile Court files and denied GAO’s motion to make discovery on respondent’s (appellee’s) records. The court based its dismissal of GAO’s petition on two main findings: 1) that GAO had not exhausted its administrative remedies under the Act; and 2) that GAO should have filed a motion to modify an order pursuant to OCGA § 15-11-42. Held:

1. The juvenile court erred in finding that GAO had not exhausted its administrative remedies under 42 USC § 10807, and in dismissing GAO’s deprivation petition. Although the Act does as a general rule require the exhaustion of administrative remedies, the Act also provides for at least three exceptions to the exhaustion requirement. The first exception requires the timely exhaustion of “all administrative remedies where appropriate.” (Emphasis supplied.) 42 USC § 10807 (a). The second exception permits alternative action when “any matter with respect to such individual will not be resolved within a reasonable time.” 42 USC § 10807 (a). According to the third exception, “[s]ubsection (a) does not apply to any legal action instituted to prevent or eliminate imminent serious harm to [an] individual [with mental illness].” 42 USC § 10807 (b). If A. V. B. is, in fact, “deprived,” then her situation is unlikely to be resolved within a reasonable time, and legal action may be appropriate. If she is improperly institutionalized, then serious harm is occurring. Arguably, any or all three of these exceptions could apply under the facts alleged, but without an adjudication on the underlying deprivation petition as to whether DFCS abandoned or neglected A. V. B., it is not possible to make that determination.

The court held that the specific remedy which GAO failed to utilize was a hearing available under Rules of the Department of Human Resources, Chapter 290-4-7-.08. On the' advice of her attorney, A. V. B. cancelled a scheduled hearing on the issue of her continued confinement at West Central. The administrative hearing, however, was not a viable remedy to GAO for several reasons. First, the right to the hearing did not belong to GAO but belonged to A. V. B. See Chapter 290-4-7-.08 of DHR Regulations. Second, A. V. B. based her decision on the advice of her legal counsel, an attorney from the Georgia Legal Services Program (“GLSP”). Third, the relief that GAO sought was a finding that A. V. B. was deprived and neglected in the care of DFCS. Even if the hearing had culminated in A. V. B.’s release from West Central, it is GAO’s contention that A. V. B. would still be in DFCS’s legal custody, and thereby continue to be subjected to further deprivation and abandonment because “DFCS has many warehouses from which to choose.” Moreover, the relief which GAO sought was a judicial determination of deprivation with the hope that the court would order a change of custody. Even assuming arguendo that GAO failed to exhaust its administrative remedies, it was not required to do so because a party is not barred from relief by its failure to exhaust administrative remedies where those remedies were inadequate. Hilton Constr. Co. v. Rockdale County Bd. of Ed., 245 Ga. 533, 539 (3) (266 SE2d 157) (1980); see Conklin v. Zant, 202 Ga. App. 528 (414 SE2d 741) (1992).

2. The juvenile court erred in determining that GAO was not entitled to file the petition at issue and erred in dismissing the action. The threshold issues are procedural: whether GAO was entitled to bring the action and whether the court had the authority to grant the relief sought. The court held that GAO could not bring the deprivation petition because it was a subsequent deprivation petition, and that GAO was required to seek modification of the court’s prior order pursuant to OCGA § 15-11-42. We disagree. GAO’s petition alleges that A. V. B. is a deprived child under the care of her legal custodian, DFCS. Because this cause of action is separate and distinct from the initial deprivation adjudication concerning A. V. B.’s father, we find no merit to the State’s argument that GAO was collaterally estopped from bringing the petition. Collateral estoppel requires an identity of parties and an adjudication on the merits by a court of competent jurisdiction. Waldroup v. Greene County Hosp. Auth., 265 Ga. 864, 867 (2) (463 SE2d 5) (1995). GAO was not a party to the first petition, and no adjudication has ever been made on GAO’s claim that DFCS abandoned and neglected A. V. B.

A “ ‘[deprived child’ means a child who: . . . [h]as been abandoned by his parents or other legal custodian.” OCGA § 15-11-2 (8) (C). Under the Code, we find no statutory requirement that a petition for modification must be filed under OCGA § 15-11-42, instead of a deprivation petition under OCGA § 15-11-24. Nor does the State offer supporting authority for this conclusion. In statutory construction, it is presumed that Code sections are of equal dignity and should be properly construed as to be consistent where possible. Rollins v. State, 215 Ga. 437, 441 (2) (111 SE2d 63) (1959). Because the Juvenile Code does not state that OCGA § 15-11-42 negates OCGA § 15-11-24, the two sections should be read in pari materia and to effectuate the general purpose of the Code which is to protect the well-being of children. Rollins, supra. See OCGA § 15-11-1. See Sanderson v. State, 217 Ga. App. 51, 52 (456 SE2d 667) (1995). The jiuvenile court had the inherent authority to change, vacate, or modify its earlier temporary custody order, if it determined that A. V. B. was deprived in the custody of DFCS. OCGA § 15-11-34 (c). See In the Interest of A. L. L., 211 Ga. App. 767 (2) (440 SE2d 517) (1994); In the Interest of K. B., 188 Ga. App. 199, 200-201 (2) (372 SE2d 476) (1988). Compare Lewis v. Winzenreid, 263 Ga. 459, 461 (435 SE2d 602) (1993). For these reasons, the court erred in dismissing GAO’s petition.

3. The juvenile court erred in denying GAO’s motions to access confidential DFCS and juvenile court records on A. V. B. When the juvenile court denied access to GAO based on its interpretation of the Act, the court failed to consider applicable state law which permits reasonable access to records by “[a] legally mandated, public or private, child protective agency of this state or any other state bound by similar confidentiality provisions and requirements which is investigating a report of known or suspected child abuse. . . .” OCGA § 49-5-41 (a) (1). As noted in Division 1, GAO is a legally mandated, private, non-profit child protective agency mandated by 42 USC § 10805 (a) (1) (A), (B) to investigate incidents of abuse and neglect of individuals with mental illness. GAO is bound by similar confidentiality provisions. See 42 USC § 10806 (a). Moreover, GAO is attempting to investigate a report of known or suspected child abuse as alleged in the deprivation petition. Because GAO satisfies the statutory criteria, its motion to access confidential DFCS records should have been granted.

Decided July 11, 1996

James W. Beagle, for appellant.

Michael J. Bowers, Attorney General, William C. Joy, Senior Assistant Attorney General, Shalen A. Sgrosso, Assistant Attorney General, Paula K. T. Hanington, for appellee.

Torin D. Togut, Vicky O. Kimbrell, Lisa J. Krisher, Phyllis J. Holmen, amici curiae.

OCGA § 15-11-33 (d) provides that “[t]he parties or their counsel shall be afforded an opportunity upon request to examine and controvert written reports so received and to cross-examine individuals making the reports, except that portions of such reports not relied upon by the court in reaching its decision which, if revealed, would be prejudicial to the interests of the child or any party to the proceeding may be withheld in the court’s discretion.” Because GAO requested access to these records, the juvenile court should have granted GAO’s motion subject to the court’s exercise of discretion with regard to the portions of the record not relied upon. Accordingly, we reverse and remand the juvenile court to provide GAO access to the records upon which the court made its deprivation decision subject to the court’s determination as to whether any portions of the written record upon which it did not rely need to remain confidential.

Judgment reversed and case remanded with direction.

Beasley, C. J., and Blackburn, J., concur.

       GAO filed its petition in the Juvenile Court of Muscogee County, but that court ordered a transfer of venue to the Juvenile Court of Dougherty County. The petition was designated “Petition for Termination of Rights Due to Deprivation Pursuant to OCGA § 15-11-1 et seq. and for Loss of Legal Custody Pursuant to OCGA § 19-7-4.”

       The GLSP is the designated legal representative for DFCS minors admitted to state psychiatric hospitals for treatment and evaluation. GLSP’s amicus brief argues that GAO has an independent right to submit a deprivation petition under the circumstances here.


author: Smith, Judge.

text:
    A96A0760.
    PIERCE v. THE STATE.
    (474 SE2d 112)
   Smith, Judge.

Douglas Leonard Pierce became involved in a quarrel over an eviction that culminated in a general brawl and the stabbing, stoning, and beating of various participants. Pierce and another participant, Allen, were indicted on two counts of aggravated assault. The victim in this case, whose trial was severed from that of Pierce and Allen, was charged with one count of aggravated assault. OCGA § 16-5-21 (a) (2). A jury convicted Pierce of aggravated assault on one count and found him guilty of the lesser included offense of simple assault on the second count. OCGA § 16-5-20 (a). See Morrison v. State, 147 Ga. App. 410, 412 (249 SE2d 131) (1978). Pierce appeals from the judgment of conviction and sentence.

1. Pierce asserts the general grounds. Construed in favor of the jury’s verdict, the evidence shows that Pierce’s sister had been told by the victim to move out within 30 days. As she was moving her belongings, co-defendant Allen appeared in the doorway several times. The last time he returned, Pierce was with him, shouting threats against the victim and the victim’s wife. Pierce produced a knife and began waving it around, pointing it at the victim and his wife as he threatened to “cut” them. The victim obtained a stick to defend himself, and Pierce reached around Allen and cut the victim with the knife. Pierce and Allen also threw large rocks at the victim, and Allen then stabbed the victim.

As Pierce points out, the evidence was in conflict as to the instigation of the brawl and the intentions of the participants. But “the credibility of the witnesses was a matter for the jury; on appeal we consider the sufficiency of the evidence, viewing it in the light most favorable to support the jury’s verdict. [Cit.]” Ellis v. State, 211 Ga. App. 605, 608 (1) (440 SE2d 235) (1994). Viewed in this light, sufficient evidence was presented to enable a rational trier of fact to find that Pierce was guilty beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. Pierce contends the trial court abused its discretion in requiring him to proceed to trial without counsel. We disagree. At Pierce’s arraignment on May 31, 1995, approximately six months after the incident, he had not obtained counsel. The trial court instructed him to meet “today” with the county official responsible for the appointment of indigent defense counsel. The trial court also informed Pierce that it was “critical” for him to obtain private counsel if he did not meet the criteria for court-appointed counsel and that he otherwise would be required to represent himself. Although unable to meet the indigence standard, at the next calendar call, on August 3, 1995, Pierce still had not obtained an attorney. The trial court urged Pierce to “utilize every avenue” to obtain counsel and inquired as to his efforts to do so. Pierce responded that he had spoken to “several” lawyers but was unable to provide the trial court with their names.

The trial court made further inquiries at the August 14 and August 17 calendar calls regarding Pierce’s efforts to obtain counsel, but Pierce never was able to provide the names of any attorneys he had consulted or any specific information. Nothing on the record shows he undertook any of the strategies suggested by the trial court — speaking to the attorneys present in the courtroom at the calendar calls, taking a second and third job, or raising funds from family and friends. Pierce rejected the trial court’s advice that he observe another trial “so that you can get an appreciation for what you may find yourself doing without counsel.” Pierce acknowledged he made no effort to ascertain whether he qualified for indigent defense counsel after his employment status changed. The only justification given by Pierce for failing to obtain counsel was, “[W]e just can’t afford it.”

The trial court concluded that Pierce and Allen did not meet the criteria for appointed counsel, but requested that an attorney in the courtroom act on “a limited appointment” basis to consult with them on legal matters. Pierce agreed to this limited appointment.

The recent case of Flanagan v. State, 218 Ga. App. 598 (462 SE2d 469) (1995), decided after the trial of this case, establishes that “while a defendant who is not indigent is not automatically entitled to appointed counsel, he is entitled to have the trial court consider his request for appointed counsel based on the individual circumstances of his case; and the defendant’s diligence in attempting to retain counsel would be one circumstance to consider.” Id. at 599. In Flanagan, the trial court denied a non-indigent defendant’s request for counsel solely on the basis that he did not meet the indigence standard, despite the defendant’s contention that he was virtually illiterate and had obtained some, but not sufficient, funds for an attorney from his employer and family members. We reversed, concluding that “the court cannot simply deny all such requests as a matter of policy, [cits.]” and directing the trial court “to exercise its discretion on whether the circumstances warranted appointment of counsel. [Cit.]” Id. at 600-601.

Pierce relies upon Flanagan to insist that the trial court failed to exercise its discretion in his case. The better course perhaps would have been for the trial court to state explicitly on the record that it considered Pierce’s diligence and any other special circumstances and made a “limited appointment” of counsel in the exercise of its discretion. It is apparent from the record, however, that the trial court made extensive efforts in multiple pretrial hearings to accommodate Pierce and inquire into any special circumstances. Despite numerous suggestions, instructions, and inquiries from the court over a period of several months, the record contains no indication that Pierce undertook any of the actions suggested by the court. Unlike the defendant in Flanagan, he provided no specific information regarding his attempts to obtain funds or an attorney. Pierce made neither an evidentiary showing nor a contention on appeal that he is illiterate, mentally incompetent, or otherwise less able than the average citizen to undertake the task of obtaining counsel. In fact, evidence was presented showing that Pierce had previous experience with the criminal justice system.

Decided July 11, 1996.

Leo E. Benton, Jr., for appellant.

Lydia J. Sartain, District Attorney, Leonard C. Parks, Jr., Assistant District Attorney, for appellee.

While mindful of Flanagan’s teaching that the trial court must consider the appointment of counsel for a non-indigent defendant, we must balance that requirement with the defendant’s obligation to exercise due diligence. Unlike the trial court in Flanagan, the trial court in this case did not deny Pierce’s request for counsel “simply . . . as a matter of policy.” 218 Ga. App. at 600-601. The court affirmatively inquired into Pierce’s circumstances more than once. It is also apparent from the record that Pierce disregarded the substantial efforts of the trial court to assist him in obtaining counsel, and he failed to provide the court with specific information regarding his own efforts. Pierce’s lack of diligence is obvious and would render a remand under Flanagan valueless.

Moreover, the record affirmatively shows that the trial court did exercise its discretion in making a “limited appointment” of an attorney to assist Pierce and Allen with legal matters during the trial. Under these circumstances, we cannot conclude that the trial court failed to exercise its discretion in considering whether to appoint counsel for a non-indigent defendant, nor can we conclude that the trial court abused that discretion.

Judgment affirmed.

Pope, P. J., and Andrews, J., concur.


author: Ruffin, Judge.

text:
    A96A0804.
    HARISH et al. v. RAJ et al.
    (474 SE2d 624)
   Ruffin, Judge.

Drs. Gorli Harish, D. M. Jayaram and Ujjal Sandhu (collectively “plaintiffs”) sued Ranjan Raj and Gurubasava Raj (collectively “defendants”), alleging defendants fraudulently conspired to obtain their shares of Universal Business Partners, Inc. (“Universal”) for significantly less than its true market value in violation of the Georgia RICO statute (OCGA § 16-14-1 et seq.). The complaint also alleged fraud and deceit and breach of fiduciary duty. The trial court granted summary judgment to defendants, finding (1) defendants did not owe a fiduciary duty to plaintiffs since they were co-directors of Universal, and (2) plaintiffs failed to show any exercise of ordinary care on their part. Plaintiffs appeal from the trial court’s order granting summary judgment. For reasons which follow, we affirm.

The record shows that in July 1987, Harish approached Ranjan Raj about investing in an Atlanta family planning clinic that he and two other doctors were considering acquiring. The parties incorporated Universal for the purpose of purchasing and operating the clinic. Universal paid $231,000 for the clinic. All parties were members of the Universal board of directors, and Harish was chairman of the board of directors and medical director for the clinic. As medical director, Harish visited the clinic every five to six weeks, inspected its financial books, and was encouraged to ask questions about the business. Jayaram also visited Atlanta several times to inspect the business and financial statements. Ranjan Raj became president and chief executive officer and moved to Atlanta while the plaintiffs remained in West Virginia. Gurubasava Raj was Universal’s secretary and treasurer.

Universal obtained a certificate of need to operate the clinic. From 1987-1990 defendants operated the clinic and kept plaintiffs apprised of all problems. The clinic earned only marginal profits. The parties knew by late 1988 that MARTA planned to condemn the building where the clinic was located.

Northside Hospital was denied a certificate of need to set up a multi-specialty surgery center in 1990 and began inquiring into purchasing an existing permitted center. In the fall of 1990, North-side Hospital contacted Ranjan Raj about purchasing Universal’s clinic. In September 1990, Harish asked Raj if there were any buyers interested in the clinic, and Raj informed him Northside Hospital was interested. According to Harish, Raj made Northside Hospital’s interest sound insignificant and not to be taken seriously. Harish informed the other two plaintiffs of the offer. Sandhu obtained the name and telephone number of the Northside Hospital representative from Raj. Sandhu contacted Northside Hospital and conducted his own negotiations with the consent of the other two plaintiffs. Northside Hospital responded with an offer of $350,000, and Sandhu learned Northside would increase the offer to $450,000 or $500,000. Plaintiffs desired to sell the clinic since Ranjan Raj had been unable to attract physicians to the clinic or to make the clinic profitable. Ranjan Raj desired to expand the clinic’s services since his income growth depended upon expansion. Raj spoke with some individuals about establishing a multi-specialty surgery center. In addition, the parties engaged in heated discussions about the potential sale, ultimately hiring attorneys to protect their divergent interests.

Plaintiffs were eager to sell to Northside Hospital and gave Ranjan Raj an ultimatum: agree to sell the clinic to Northside Hospital at the price settled on or agree to buy their stock in Universal. Plaintiffs never questioned why Northside was interested in the clinic and never attempted to negotiate a higher sale price. Moreover, plaintiffs made no effort to discover if any other entity was interested in purchasing the clinic and made no effort to determine the clinic’s value. Defendants purchased plaintiffs’ stock for $255,000. A mutual release was executed with the agreement for purchase and sale of stock. Raj admitted he may have formed the intent to negotiate with other parties for the sale of the clinic prior to completing the above transaction. However, plaintiffs released defendants to do what they wished with the company, including selling to Northside.

After plaintiffs sold their interest, defendants again began negotiating with Northside Hospital. Among other things, Raj demanded $1.9 million plus other financial incentives. Raj claims this price was based on profits he could have earned had he expanded the clinic to a multi-specialty surgery center. Ultimately, defendants sold Universal to Northside Hospital for approximately $2.2 million. Northside Hospital explained its willingness to increase its offer to $2.2 million in mid-1991 because of both the quickly approaching acquisition of the clinic property by MARTA and the realization that they could not purchase another clinic’s certificate of need and transfer it across the county line.

1. In their first enumeration of error, plaintiffs contend the trial court erred in concluding, as a matter of law, that defendants did not owe them a fiduciary duty. We disagree.

It is well established that “the mere fact that one reposes trust and confidence in another does not create a confidential relationship. In the majority of business dealings, opposite parties have trust and confidence in each other’s integrity, but there is no confidential relationship by this alone.” (Citations and punctuation omitted.) Kienel v. Lanier, 190 Ga. App. 201, 203 (2) (378 SE2d 359) (1989). Moreover, courts have held that a confidential and fiduciary relationship is not presumed between brothers or close, personal friends, but “must be shown by proof, and the burden is upon the party asserting the existence of such relationship to affirmatively show the same.” (Citation and punctuation omitted.) Hancock v. Hancock, 223 Ga. 481, 486 (1) (c) (156 SE2d 354) (1967); Charles v. Simmons, 215 Ga. 794 (1) (113 SE2d 604) (1960).

Thus, while Harish and Ranjan Raj grew up in the same community and were close friends, this fact alone does not support the finding of a confidential or fiduciary relationship. In this case, the parties knew their interests were adverse, were involved in heated discussions regarding the sale of the clinic, contested the sale of the clinic with the help of separate attorneys to protect their individual interests, separately negotiated with Northside Hospital regarding a potential sale, and ultimately resolved the dispute with the stock sale. Thus, it is clear the parties dealt at arms length in the execution of the stock purchase agreement and mutual release. This is not a case where the plaintiffs blindly relied on representations from a trusted friend or business partner. “Although the parties may have owed each other a fiduciary duty in other respects, there is no basis in this case for an inference that a fiduciary or confidential relationship existed between them with respect to the transaction at issue.” (Emphasis in original.) Kienel, supra at 204.

In addition, the trial court correctly concluded that defendants, as directors of Universal, had no duty to disclose all material facts relative to the value of the corporate property to plaintiffs, who were also directors of Universal. See id.; Lariscy v. Hill, 117 Ga. App. 152 (1) (159 SE2d 443) (1968). “A director in dealing with another stockholder for the purchase of his stock is under the same duties as partners, agents, and other fiduciaries to make a full disclosure of all material facts relative to the value of the corporate property under his control, known to him and unknown to the selling stockholders. ... A director in buying the stock is not under such duty to the corporation or the other directors.” (Emphasis supplied.) King Mfg. Co. v. Clay, 216 Ga. 581, 586 (1) (118 SE2d 581) (1961). “Since the petition shows on its face that the sale was between co-directors of the corporation, and the only allegation made as to the plaintiffs’] failure to ascertain the insolvency of the corporation being that [they] resided in another locality and ‘took no active part in the corporation,’ ” the trial court did not err in granting defendants’ motion for summary judgment. Lariscy, supra at 154.

Based on the foregoing, the trial court did not err in concluding defendants did not owe plaintiffs a fiduciary duty.

2. In their second enumeration of error, plaintiffs assert the trial court erred in concluding, as a matter of law, that they did not exercise ordinary diligence and that there were no questions of fact regarding the exercise of diligence. In Georgia, if the allegedly concealed fact is discoverable through the exercise of ordinary care, there is no fraud. Southern Intermodal Logistics v. Smith & Kelly Co., 190 Ga. App. 584, 586 (1) (379 SE2d 612) (1989). Fraud is not committed if the allegedly defrauded party “by the exercise of the slightest degree of diligence could have prevented the results of fraud alleged to have been perpetrated upon him.” Charles, supra at 796.

In the present case, plaintiffs failed to exercise ordinary diligence by independently verifying the value of their stock before selling it. Therefore, they were barred from asserting an action based on fraud. See Henderson v. KM Systems, 188 Ga. App. 893, 899 (3) (374 SE2d 550) (1988), overruled on other grounds, Cohen v. William Goldberg & Co., 262 Ga. 606 (2) (a) (423 SE2d 231) (1992). See also Bragg v. Sirockman, 169 Ga. App. 643, 644 (2) (314 SE2d 478) (1984) (affirming summary judgment to the defendant since the plaintiff failed to exercise ordinary diligence and was “on an equal basis with [the defendants] in the corporation at the time the sale of the stock took place” and was also an officer and director of the corporation).

Decided July 11, 1996.

Weinstock & Scavo, Michael Weinstock, Richard J. Capriola, for appellants.

Lawson, Davis & Pickren, G. Thomas Davis, Alison H. Price, for appellees.

While plaintiffs contend defendants convinced them over the years that the business was worthless, and obtained an appraisal showing the business was worth less when they purchased it, they have failed to present any evidence showing defendants interfered with their ability to exercise ordinary diligence or prevented plaintiffs from ascertaining the value of their stock. Plaintiffs state “it was obvious to Harish that Ranjan Raj did not want to reveal the information that he possessed [about Northside’s interest in purchasing the clinic],” and they not only conducted their own negotiations with Northside Hospital, but also hired attorneys to represent their individual interests. Yet plaintiffs made no effort to discover why North-side Hospital wanted to purchase the clinic, made no effort to discover if any other entity had an interest in purchasing the company, and made no effort to ascertain the value of their stock. This forecloses plaintiffs’ suit based on fraud. See Hancock, supra at 485.

As appellate judges who examine the record for error, we must be ever cognizant of the special relationship error has with harm. If there is neither error nor harm, the trial court must be affirmed.

Under the circumstances of this case, the trial court did not err in concluding plaintiffs failed to exercise ordinary diligence.

Judgment affirmed.

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


text:
    A96A0886.
    In the Interest of J. B., a child.
    (474 SE2d 111)
   Judge Harold R. Banke.

J. B., a minor, was on probation when he ran away from home. After officers took him into custody, as OCGA § 15-11-17 (a) allows them to do, J. B. escaped their control and attempted to flee. The State filed delinquency petitions against the child based on his probation violation and on facts which would, if J. B. were an adult, merit the charge of misdemeanor escape (OCGA § 16-10-52). The juvenile court adjudicated him delinquent, and he appeals. Held:

Decided July 11, 1996.

W. Luther Jones, for appellant.

Peter J. Skandalakis, District Attorney, Dennis T. Blackmon, Kevin W. Drummond, Assistant District Attorneys, for appellee.

1. J. B. contends the trial court should have granted his motion to dismiss the charge based on the adult crime of misdemeanor escape. We agree. In Flanagan v. State, 212 Ga. App. 468 (1) (442 SE2d 16) (1994), we found the application of OCGA § 16-10-52 limited to persons who escape while in custody “prior to or after having been convicted of a felony, misdemeanor or violation of a municipal ordinance.” The officers’ custody of J. B. did not fall within this statute. “A juvenile under the jurisdiction of the juvenile court is not charged with the commission of a crime, but rather with the commission of a delinquent act, which is not a crime. . . .” In the Interest of M. B., 217 Ga. App. 660, 661 (458 SE2d 864) (1995). In that case, which involved a juvenile charged with bail jumping under OCGA § 16-10-51, we held the State could not show the juvenile had been “charged with ... a felony,” as provided by the statute, even though the delinquency petition alleged facts which would constitute a felony had M. B. been an adult. Here, similarly, the State could not show a material element of the escape charge: that J. B. had been charged with a felony, misdemeanor, or violation of a municipal ordinance. We reverse the adjudication of delinquency based on escape and remand to the trial court for resentencing.

2. J. B. has made no argument and has given no citation of authority in support of his two remaining enumerations of error. To the extent Division 1 of our opinion does not render those enumerations moot, they are deemed abandoned pursuant to Court of Appeals Rule 27 (c) (2).

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

Beasley, C. J., anil Blackburn, J., concur.


text:
    A96A1248.
    PENSON v. THE STATE.
    (474 SE2d 104)
   Judge Harold R. Banke.

Allen Wayne Penson was convicted of burglary and two counts of arson for illegally entering and setting fire to the Walker County Rescue Building and a vehicle. Following the denial of his motion for new trial, Penson appeals, enumerating several errors.

The State’s evidence was as follows. A person fitting the description of Penson was seen with a sandy-colored dog near the rescue building prior to the outbreak of the fire. Penson lived just 500 feet from the building and owned a sandy-colored dog. Investigators discovered blood at the scene indicating that someone may have broken a window to obtain entry. Penson had cuts or scratches on his arm which he claimed were from briars. Pursuant to a consent search of Penson’s home, police found a sheet of ordinary notebook paper which had bloodstains on it. A volunteer member of the rescue squad identified the notebook sheet as a “doodle sheet” which he had scribbled on and had either thrown in the garbage or left on the desk in the break room.

During the State’s case-in-chief, Investigator Ken Palmer from the State Fire Marshal’s Office qualified as an expert in the field of arson investigation. Through Palmer, the State introduced evidence of an FBI serial arsonist profile titled, “Record on Essential Findings of the Study of Serial Arsons.” During a hearing on the proffered testimony, Penson objected, arguing that the profile information was prejudicial and had no probative value. Not only was Penson not charged with being a serial arsonist, but also the State’s expert witness admitted that the profile was not used during the course of the arson investigation to develop a suspect in this case.

Despite defense objections, the trial court permitted Palmer to outline the serial arsonist profile but specifically instructed the State not to apply this profile to Penson. The trial court also prohibited the State’s expert from giving an opinion that Penson was a serial arsonist. Palmer testified that serial arsonists share certain common characteristics including the following: white males between 18-27, loners, educational failures, homosexuals or bisexuals, history of criminal activity, medical or mental problems, poor employment records, alcohol and drug abuse, and dysfunctional family backgrounds. According to the profile, serial arsonists are mainly walkers who set fires within two miles of their home and act on the spur of the moment, usually for revenge.

Even before the trial court admitted the expert testimony, the State had elicited through various witnesses much personal history and personality trait information including: Penson was age 26, lived alone, had a tenth grade education, was unemployed, did not own a vehicle, and walked to the scene of the Walker County Rescue Building fire which was 500 feet from his home. The jury could observe for itself that Penson is a white male.

Penson’s defense was alibi. Daphne Young testified that Penson had been present at her birthday party on the night in question. Jeffrey Cameron testified that after the birthday party concluded, Penson accompanied him and his girl friend to Cameron’s residence and remained there until the fire whistle sounded. Cameron testified that after he heard the alarm, he went out on the porch and Penson came out after him. Cameron’s residence is between an eighth and a quarter of a mile from the rescue building. Cameron claimed that if the front door had ever opened he would have heard it. Held:

1. The trial court erred in admitting the serial arsonist profile. “[U]nless a defendant has placed [his] character in issue or has raised some defense which the [profile] is relevant to rebut, the state may not introduce evidence of the [profile], nor may the state introduce character evidence showing a defendant’s personality traits and personal history as its foundation for demonstrating the defendant has the characteristics of a typical [profilist].” Sanders v. State, 251 Ga. 70, 76 (3) (303 SE2d 13) (1983). In this case, the profile did not rebut Penson’s alibi defense that he was attending a birthday party at the time the fire originated or aid the jury in determining whether Penson was at the birthday party on the night of the fire. Compare Allison v. State, 256 Ga. 851 (353 SE2d 805) (1987) (State’s expert could testify in rebuttal if proper notice afforded defendant); Smith v. State, 247 Ga. 612, 619 (277 SE2d 678) (1981) (defense expert could testify on battered women syndrome because subject beyond the ken of ordinary jurors). Nor had Penson placed his character in issue.

The trial court’s directive to the State that it not apply the serial arsonist profile to Penson was meaningless given the State’s extensive exploration of Penson’s personal history and personality traits and the State’s transparent efforts to subtly correlate this information to the serial arsonist profile. Even before the State’s expert testified, the prosecutor acknowledged that certain seemingly irrelevant exhibits would later become relevant in light of the profile. The admission of the serial arsonist profile was plainly error, and Pen-son’s conviction must be reversed unless it was highly probable that the error did not contribute to the verdict. Sanders, 251 Ga. at 76.

We are unable to accept the State’s contention that even absent the serial profile evidence it had a “strong” circumstantial evidence case. Having reviewed the transcript and considered the totality of the State’s evidence, we do not find the evidence was otherwise overwhelming, and we are unable to conclude that it is highly probable that the profile evidence did not contribute to the verdict. Id. Compare Cornelius v. State, 213 Ga. App. 766, 772 (6) (445 SE2d 800) (1994).

2. The trial court erred in allowing the State to introduce similar transaction evidence for a separate, subsequent unsolved vacant house fire which occurred while Penson was out on bond, one week after Penson had been indicted for the rescue building fire. At the scene of the house fire, an officer deeming Penson’s explanation for his presence to be unreasonable, took Penson into custody. The vacant house fire occurred about a quarter of a mile from Penson’s home. Penson told investigators that after he heard the fire whistle, he saw an orange glow in the sky, and thinking it might be his brother’s house, walked to find out. His brother’s house was the house next door to the one which burned. Two people thought they saw Penson lurking in the area prior to the fire, but no one was able to positively identify Penson. A witness testified that two men turned around fast and took off running after the police arrived.

Before similar transaction evidence can be introduced, the State must make three affirmative showings: 1) introduction of the evidence of the independent offense for some appropriate purpose which has been deemed to be an exception to the general rule of inadmissibility; 2) sufficient evidence to establish that the accused committed the independent offense; and 3) sufficient connection or similarity between the independent offense and the crime charged so that proof of the former tends to prove the latter. Williams v. State, 261 Ga. 640, 642 (2) (b) (409 SE2d 649) (1991). Under Williams, subsequent similar offenses can be admitted if the requisite criteria are satisfied, and it is not necessary that such offense resulted in indictment or conviction. Brown v. State, 183 Ga. App. 476, 477 (1) (359 SE2d 233) (1987) (evidence of subsequent drug sale particularly useful when identity at issue).

In this case, the investigating officer admitted that the only evidence he had that Penson burned the vacant house was that he was present at the scene when it was burning. Although two people thought they had seen a man matching Penson’s appearance prior to the fire, neither was able to discern the person’s facial features. Both fires were set between midnight and 3:00 a.m.; neither fire was set using an accelerant; both were fairly near Penson’s home; and in both cases, a person seeming to match Penson’s physical appearance was noticed before the blazes. Deeming it a close call, the trial court indicated there were enough similarities to allow the jury to assess the evidence with proper instructions. We disagree. The State never even informed the trial court of the purpose for which the evidence was being offered to enable the court to make the essential preliminary determination as to whether the State had a proper purpose. See Mells v. State, 206 Ga. App. 163, 164 (2) (424 SE2d 844) (1992). In view of the inflammatory serial arsonist insinuations implicitly directed at Penson, the failure of the State to make the requisite satisfactory showing of all three prongs of Williams, supra, was particularly egregious.

3. The State witness’s comment on Penson’s request to speak with his attorney during questioning was improper. After police took Penson into custody, while at the police station, Investigator Hullender questioned Penson about “his side of it.” At trial, the prosecutor asked Hullender, “Did you ever hear Mr. Penson say anything in your presence?” Hullender responded, Wes, sir, after I began, you know, an interview with Mr. Penson, and of course he requested an attorney and —.”

Decided July 11, 1996.

Steven M. Ellis, for appellant.

Ralph L. Van Pelt, Jr., District Attorney, Melodie S. Bedford, Assistant District Attorney, for appellee.

Improper comment on a defendant’s silence at the time of arrest should be excluded when objected to. Brewer v. State, 219 Ga. App. 16, 19 (4) (463 SE2d 906) (1995). Penson objected and moved for a mistrial and later renewed the motion for mistrial at the close of the State’s evidence. We are unable to conclude that the comment of Hullender, a police veteran with 19 years’ experience, was inadvertent and was not an intentional comment on Penson’s silence and invocation of his right of counsel. Compare Ford v. State, 219 Ga. App. 562, 563 (2) (466 SE2d 11) (1995).

4. In light of our holding in Division 1, we need not reach the remaining enumeration.

Judgment reversed and case remanded.

Beasley, C. J., and Blackburn, J., concur.


author: McMukray, Presiding Judge.

text:
    A96A1410, A96A1411, A96A1412, A96A1413.
    STEPP v. FARM & HOME LIFE INSURANCE COMPANY (four cases).
    (474 SE2d 108)
   McMukray, Presiding Judge.

Pursuant to powers contained in security deeds, Home & Farm Life Insurance Company (“applicant”), as successor in interest to Appalachian Heritage Communities, Inc., foreclosed on four separate lots securing respondent Jeanette Stepp’s debt to Appalachian Heritage Communities. After publication of notice, the four lots were sold on the courthouse steps, with applicant being the sole bidder in each case. Thereafter, applicant sought confirmation in the Superior Court of Gordon County. Respondent opposed confirmation, and the issue of true market value was tried to the superior court. After a hearing, the superior court determined that notice was proper; that the sales were conducted under power of sale; that the true market value of each lot was $6,800; and that this true market value was less than the amount of the indebtedness secured by each lot. The debt ranged from $24,912.80 to $26,978.20. Respondent appeals from the final orders confirming applicant’s foreclosure on her four lots. The four separate appeals are hereby consolidated for appellate disposition in this single opinion. Held:

1. Respondent first contends the trial court erred in failing to dismiss the confirmation proceedings under OCGA § 44-14-161 (a) because no report of the non-judicial sales was tendered into evidence.

OCGA § 44-14-161 (a) provides: “When any real estate is sold on foreclosure, . . . under powers contained in security deeds, . . . and at the sale the real estate does not bring the amount of the debt secured by the deed, ... no action may be taken to obtain a deficiency judgment unless the person instituting the foreclosure proceedings shall, within 30 days after the sale, report the sale to the judge of the superior court of the county in which the land is located for confirmation and approval. . . .” (Emphasis supplied.) Nothing in this language imposes an evidentiary or procedural requirement that any such report to the superior court be formally tendered into evidence as an exhibit. In each of the cases sub judice, the initial pleadings were captioned “APPLICATION FOR CONFIRMATION OF FORECLOSURE SALE UNDER POWER,” and each recites: “This Application is a report of a sale under power of real property located in Gordon County, Georgia, which sale was made pursuant to that certain Deed to Secure Debt With Power of Sale (the ‘Security Deed’) dated September 28, 1990, recorded at Deed Book 337, Folio 352, Gordon County, Georgia Records. This Application is also a petition for an order of confirmation and approval of said sale.” The applications further recite the date of non-judicial sale and the amounts received. “Clearly, when the application for confirmation was presented to the judge of the superior court to obtain a rule nisi, reciting the fact of the sale, the price obtained, and all pertinent factors concerning the sale, this was a report of the sale to the judge of the superior court, and the terms of the statute were fully complied with.” (Emphasis in original.) Dukes v. Ralston Purina Co., 127 Ga. App. 696, 697 (194 SE2d 630). Consequently, this enumeration is without merit.

2. Over,respondent’s objections as to authentication and hearsay, the superior court admitted into evidence plaintiff’s Exhibit 1, the affidavit of the publisher of the Calhoun Times, indicating that the notice of applicant’s impending sale under power was published on August 11, 18, 25, and September 1, 1993. This evidentiary ruling is enumerated as error.

John S. Hetzel, one of the attorneys for applicant, testified that he conducted the foreclosures and affirmed that in preparation, he “cause[d] those foreclosures to be advertised during the month preceding the foreclosure,” in the legal organ of Gordon County. Mr. Hetzel identified the publisher’s affidavits of publication and affirmed that the “ads [ran] four times during the month preceding foreclosure.” Consequently, respondent’s contention that the publisher’s affidavits were erroneously admitted without a proper foundation is without merit. As to respondent’s additional contention that the publisher’s affidavit is inadmissible hearsay, it is our view that the affidavits are competent proof of the facts recited therein, namely the contents of the advertisement and the dates of publication. The publisher’s sworn statement is aided by the presumption of regularity. “ ‘The law presumes that every [citizen], in [both] private and official character, does [one’s] duty until the contrary is shown.’ Nicholson v. Spencer, 11 Ga. 607, 611; [cit.]; English v. Poole, 31 Ga. App. 581 (2) (121 S.E. 589).” Aiken v. Armistead, 186 Ga. 368, 388-389 (3) (198 SE 237). The superior court did not err in admitting the publisher’s affidavit over respondent’s hearsay objection.

3. With respect to Case Nos. A96A1410 and A96A1412, respondent contends the superior court erred in failing to dismiss the confirmation proceeding, arguing there was no evidence of the foreclosure notice “mandated by OCGA § 44-14-162.2.”

“Code Ann. § 67-1503 [now OCGA § 44-14-161] is a debtor’s relief Act to subject a land foreclosure sale under a power to the scrutiny of the court. Its purpose is to pass upon the notice, advertisement and regularity of the sale and to re-insure that the property was sold for a fair value.” Wall v. Fed. Land Bank &c., 240 Ga. 236 (1), 237 (240 SE2d 76). In the cases sub judice, however, the uncontradicted evidence is that respondent’s lots remained unimproved at the time of the last appraisal. “The notice requirement of Code Section 44-14-162.2 shall apply only to the exercise of a power of sale of property all or part of which is to be used as a dwelling place by the debtor at the time the mortgage, security deed, or lien contract is entered into.” OCGA § 44-14-162.3 (a). Consequently, the notice requirements of OCGA § 44-14-162.2 were not applicable to applicant’s foreclosure of respondent’s unimproved lots. It follows that the superior court did not err in failing to dismiss the confirmation proceedings in these two cases.

4. In her fourth enumeration, respondent enumerates the general grounds, contending the superior court erred in failing to dismiss the confirmation proceedings because the foreclosure sale was not conducted in good faith.

The law imposes upon the holder of a mortgage or security deed with power of sale the duty “‘“to advertise and sell the property according to the terms of the instrument, and [to ensure] that the sale be conducted in good faith.” ’ Scott v. Paisley, 271 U. S. 632, [636] (46 SC 591, 70 LE 1123). [Cits.]” Giordano v. Stubbs, 228 Ga. 75, 76 (1), 78 (184 SE2d 165). “The general morality of the law is higher than many good people suppose; is very much higher in the matter of guarding public sales of property against collusive combinations to suppress bidding. The standard it has in view is not merely conscience, but enlightened conscience. It condemns not only what the average [citizen] would regard as fraudulent, but what [one] ought to regard as contravening a sound public policy.” Barnes v. Mays, 88 Ga. 696, 698 (1) (16 SE 67).

In support of her contention that foreclosure in the four cases sub judice was conducted in bad faith, respondent points to the circumstance that the developer (applicant’s predecessor in interest), Appalachian Heritage Communities, was in bankruptcy when the commercial real estate appraiser, Henry J. Wise, was first retained to appraise respondent’s lots. Henry J. Wise affirmed that “once the developer goes into bankruptcy, there is a chilling effect on the values of [the] lots.” But Henry J. Wise did not attribute any chilling effect on the value of the lots to collusion, fraud, or conspiracy. Rather, in his opinion, lots in respondent’s particular subdivision declined in value after the developer’s bankruptcy because “there were many fewer transactions. There was no longer an organized sales force, an organized marketing process, and the transactions were what [Henry J. Wise] call[ed] the normal or natural rate of transaction that is through the secondary brokerage community.”

“Inadequacy of price paid upon the sale of property under power will not of itself and standing alone be sufficient reason for setting aside the sale. It is only when the price realized is grossly inadequate and the sale is accompanied by either fraud, mistake, misapprehension, surprise or other circumstances which might authorize a finding that such circumstances contributed to bringing about the inadequacy of price that such a sale may be set aside by a court of equity. [Cits.]” Giordano v. Stubbs, 228 Ga. 75, 79 (3), supra. Contrary to respondent’s contentions, however, in the cases sub judice, the circumstances relied on are not evidence that the prices received at foreclosure were chilled or diminished as a result of collusion or fraud on the part of applicant in conducting the foreclosure. “ ‘The superior court . . . had sufficient data in evidence upon which (it) could apply (its) own knowledge and ideas so as to derive (its) own opinion as to the market value of the project at the time of the sale.’ BPI Constr. Co. v. Collective Fed. Savings &c. Assn., 186 Ga. App. 324, 325 (367 SE2d 269) (1988). There being sufficient competent evidence to support the superior court’s conclusion that, as to each parcel, the price brought at foreclosure was at least the true market [value] of that parcel, the enumeration of the general grounds is without merit.” Armstrong v. California Fed. Savings &c. Assn., 192 Ga. App. 508, 509 (2) (385 SE2d 113).

Judgments affirmed.

Johnson and Ruffin, JJ., concur.

Decided July 11, 1996.

Mark T. Sallee, for appellant.

Macey, Wilensky, Cohen, Wittner & Kessler, Susan L. Howick, Rachel A. Snider, for appellee.


text:
    A96A1599.
    AT&T et al. v. COTTEN.
    (474 SE2d 102)
   Ruffin, Judge.

In this discretionary appeal, AT&T and its workers’ compensation insurer, Travelers Insurance Company (collectively “AT&T”), appeal from the superior court’s order affirming the award of the appellate division of the State Board of Workers’ Compensation. The appellate division’s award reversed the decision of the administrative law judge (“ALJ”). In their sole enumeration of error, AT&T asserts the superior court erred in concluding that the appellate division applied the correct standard of review. For reasons which follow, we reverse and remand with directions.

Cotten, who was employed by AT&T, sustained a work-related injury to his lower back on July 27, 1988. Cotten received authorized medical treatment from Dr. Howard Collier, who referred Cotten to Dr. Michael Fleming, a neurosurgeon. Beginning in 1988, Cotten also sought treatment from Dr. Dwight Jones, his private medical doctor. AT&T filed a notice to controvert Dr. Jones’ treatment, claiming Dr. Jones was unauthorized to treat Cotten. Thereafter, Cotten paid Dr. Jones from his personal funds.

On November 20, 1989, Dr. Fleming released Cotten to return to light-duty work. On December 28, 1992, Cotten returned to Dr. Jones for treatment. Cotten alleges that he went to Dr. Jones based upon the referral of Hattie Bonds, an AT&T nurse. However, Bonds was killed in a car accident and was unable to testify as to her conversation with Cotten. Dr. Cheloliber, medical director of AT&T, testified that Bonds’ alleged statements would have been in violation of company policy concerning change of authorized physicians. He further testified that AT&T distinguishes between a claimant’s private medical doctor and an authorized workers’ compensation doctor, and Bonds led him to believe Dr. Jones was Cotten’s private medical doctor.

In January 1993, Cotten returned to light-duty work for AT&T. By letter dated February 3, 1993, AT&T informed Cotten that he needed to see Dr. Fleming to evaluate his condition and determine if he had any permanent partial disability. Cotten did not see Dr. Fleming as instructed. On January 20,1994, AT&T filed a second notice to controvert Dr. Jones’ treatment on the ground that Cotten never requested a change in physician from AT&T. Cotten admitted he never requested a change in physician; however, from January 1993 until September 1994, AT&T paid Dr. Jones’ medical fees for Cotten.

In June 1994, Dr. Jones instructed Cotten to remain out of work based upon low back syndrome. On July 18, 1994, Cotten underwent an independent medical examination by Dr. Basil Griffin, who found no objective signs of abnormality in his orthopedic and neurological examination of Cotten and released Cotten to return to work. On August 15, 1994, AT&T scheduled an appointment for Cotten to see Dr. Fleming, but Cotten did not keep this appointment or provide an explanation for missing it. AT&T contends that it has and continues to hold a light-duty position open for Cotten.

The ALJ found that Cotten never requested a change of physician from AT&T, never obtained authorization from AT&T to use Dr. Jones, and never requested the Board to order a doctor change. While a letter from Dr. Jones dated February 22, 1994, stated that Bonds referred Cotten to him and that Travelers Insurance paid his charges since December 28, 1992, the ALJ found that the company may have paid Dr. Jones under an employee-sponsored benefit plan other than workers’ compensation. The ALJ further found that AT&T controverted treatment by Dr. Jones on two occasions and requested Cotten to return to Dr. Fleming on two occasions. Based on these facts, the ALJ concluded that Dr. Fleming remained Cotten’s authorized treating physician and that Dr. Jones was not an authorized treating physician.

The ALJ also noted that Dr. Griffin, who performed an independent medical examination on Cotten, found “ ‘no objective signs of orthopedic or neurological abnormality’ ” and released Cotten to return to work on July 18, 1994. In addition, after reviewing Dr. Jones’ deposition, the ALJ found that while Dr. Jones disabled Cotten from work on June 2, 1994, he did not disable Cotten from work after December 1994 and testified that Cotten was capable of returning to light-duty work. Based on these facts, the ALJ concluded there was insufficient evidence to support Cotten’s current alleged disability from light-duty work because Dr. Jones’ restrictions were based upon subjective complaints by Cotten and Dr. Jones testified Cotten was able to continue light-duty work, which has been continuously available.

The appellate division vacated the ALJ’s findings of fact and conclusions of law. It found that AT&T had authorized and acquiesced in treatment by Dr. Jones through (1) the statements of Bonds and (2) the payment of Dr. Jones’ fees, beginning in December 1992, for almost two years. According to the appellate division, AT&T’s second notice to controvert, filed in January 1994, was too late since Dr. Jones was already the authorized treating physician at that time. The appellate division further found that Cotten became disabled on June 2, 1994, and remains disabled. Based on these findings, the appellate division concluded Cotten was entitled to payment for Dr. Jones’ past and future medical treatment and the recommencement of income benefits based on a change in condition.

The superior court affirmed the appellate division’s award, finding it was supported by the evidence and that the appellate division applied the correct standard of review.

Under the 1994 amendment to OCGA § 34-9-103 (a), “[t]he findings of fact made by the administrative law judge in the trial division shall be accepted by the appellate division where such findings are supported by a preponderance of competent and credible evidence contained within the records.” This amended subsection deleted language contained in the former version which gave the State Board (now the appellate division) discretion to hear additional testimony. Thus, in Clinical Arts &c. v. Smith, 218 Ga. App. 681 (462 SE2d 757) (1995), we held that “although the Board was previously authorized to engage in a de novo consideration of the evidence and substitute its findings for those of the ALJ as long as there was any evidence to support its substituted findings, the Appellate Division does not have such authority under the new standard of review.” Bennett-Murray, Inc. v. Barnes, 222 Ga. App. 137, 138 (473 SE2d 166) (1996). See also Truckstops of America v. Engram, 220 Ga. App. 289 (2) (469 SE2d 425) (1996).

However, the new standard still authorizes the appellate division to weigh the evidence, make determinations regarding the credibility of the evidence, and engage in a broader standard of review than that permitted under the “any evidence” standard. Id.

In the present case, the appellate division’s award does not mention which standard it employed in vacating the ALJ’s award and making its own findings of fact and conclusions of law. Therefore, we cannot ascertain whether, in rendering its decision, the appellate division applied the amended version of OCGA § 34-9-103 (a) as the standard of review, rather than the de novo review applicable under the former version of the statute. “Accordingly, we reverse and remand the case to the superior court with directions that the case be recommitted to the appellate division of the Board for review under the proper standard as set forth in this opinion.” (Citation and punctuation omitted.) Engram, supra at 291; Smith, supra at 683.

Judgment reversed and case remanded with directions.

Birdsong, P. J, and Johnson, J., concur.

Decided July 11, 1996.

Saveli & Williams, John M. Williams, Silvia L. Simpson, for appellants.

Larry G. Conner, for appellee.


text:
    A96A0105.
    MACON-BIBB COUNTY PLANNING & ZONING COMMISSION et al. v. BIBB COUNTY SCHOOL DISTRICT.
    (474 SE2d 70)
   Beasley, Chief Judge.

The Bibb County School District applied to the Macon-Bibb County Planning & Zoning Commission for a conditional use permit authorizing construction of a football stadium at one of the county’s middle schools. The Commission denied the application on the ground that construction plans do not provide the minimum number of off-street parking spaces required by the Comprehensive Land Development Resolution for the City of Macon and Bibb County.

The School District sued the Commission and its members, seeking a declaratory judgment and injunctive relief, claiming that it is exempt from local zoning regulations. In an order which cited Macon Assn. &c. v. Macon-Bibb County Planning &c. Comm., 252 Ga. 484 (314 SE2d 218) (1984), and Macon-Bibb County Hosp. Auth. v. Madison, 204 Ga. App. 741 (420 SE2d 586) (1992), the court granted the School District’s requests for relief. Appeal was taken to the Supreme Court of Georgia, Ga. Const. Art. VI, Sec. VI, Par. Ill (5). That court transferred it, stating that injunctive relief was corollary to legal issues and citing Macon-Bibb County Hosp. Auth., supra, as a similar example of the Court of Appeals’ jurisdiction.

We granted the Commission’s application for discretionary appeal. OCGA § 5-6-35 (a) (1). See Miller v. Ga. Dept. of Public Safety, 265 Ga. 62 (453 SE2d 725) (1995). The Commission contends, advancing several grounds, that the court erred in determining that the School District is exempt from the parking requirements of the Resolution.

1. In Macon Assn., supra at 488 (3), the Court recognized that in this country, the general rule granting immunity from local zoning ordinances to governmental entities is supported by essentially four traditional tests: the Superior Sovereign Test, the Governmental Propriety Test, the Power of Eminent Domain Test, and the Statutory Guidance Test.

“The Superior Sovereign Test holds that since the state and its units and agencies occupy a superior position to municipalities in the governmental hierarchy, their exemption from municipal zoning regulation is a matter of preemption. The Governmental-Propriety Test holds that property of a state governmental unit is exempt from local zoning when a governmental function is being performed but not when a proprietary function is being performed. Cases applying the Power of Eminent Domain Test take the position that when a political unit is authorized to condemn, it is automatically immune from local zoning regulation when it acts in furtherance of its designated public function. Under the Statutory Guidance Test, the courts simply look to the legislative statutes in order to glean some expression of legislative intent on the immunity question.” Id.

The Court in Macon Assn, observed that “all of these tests have been criticized, as constituting nothing more than ‘unhelpful epithets.’ [cit.],” and that “[i]t thus has been suggested that these tests should be eschewed in favor of a balancing-of-interests test to resolve the ‘critical question of which governmental interest should prevail when there is a conflict between the zoning ordinance of one political unit and the statutory authority of another unit to perform a designated public function.’ [Cits.]” Id. at 488-489. However, the Court rejected the balancing-of-interests test as “too nebulous and judicially unmanageable.” Id. at 490 (6).

The question in Macon Assn, was whether property owned by a nonprofit corporation is immune from local zoning regulations if the corporation is performing services which are governmental in nature. The Court held that such property does not have zoning immunity “at least in the absence of a clear expression of intent by the legislature that such immunity be extended.” Id. Although the Court in Macon Assn, employed a statutory guidance analysis, it has rejected such an analysis where the question was whether a governmental entity is amenable to local zoning ordinances. West v. Housing Auth. &c. of Atlanta, 211 Ga. 133, 135 (1) (84 SE2d 30) (1954), held that the fact that a municipal housing authority was condemning property for a housing project in violation of a municipal zoning ordinance was not a valid ground to enjoin the authority from proceeding with the project, even though the state statutory housing authorities law required all such housing projects to conform to local zoning laws.

In Madison, the question was whether the Macon-Bibb County Hospital Authority was subject to a regulation of the Commission prohibiting the placement of roof signs on buildings. We answered this question in the negative because a hospital authority is an instrumentality of county government and “ ‘[a] county may use property it owns for a necessary governmental purpose, even though such use violates a zoning ordinance.’ [Cit.]” Madison, supra at 742.

2. The Commission argues that Bibb County and City of Macon ordinances have conferred upon it the power to enforce its zoning regulations against the county. But even if an exception to Georgia’s zoning immunity rule could be recognized in this instance, the ordinances referred to are not included in the record, and we cannot take judicial notice of them. Knutzen v. O’Leary, 210 Ga. App. 590, 593 (3) (437 SE2d 347) (1993).

Decided June 25, 1996

Reconsideration denied July 9, 1996 and Reconsideration dismissed July 12, 1996

Almand & Ruffin, O. Hale Almand, Jr., Roy W. Griffis, Jr., David L. McGuffey, for appellants.

Jones, Cork & Miller, W. Warren Plowden, Jr., Howard J. Strick land, Jr., Sharon H. Reeves, Shawn M. Story, for appellee.

3. The Commission argues that it has the power to enforce a zoning ordinance against the School District because, under a local constitutional amendment (Ga. L. 1947, p. 1240), Macon and Bibb County have conferred their zoning power upon the Commission. Martin Marietta Corp. v. Macon-Bibb County Planning &c. Comm., 235 Ga. 689, 691 (221 SE2d 401) (1975). The constitutional amendment does not confer such a power in contravention of the immunity rule.

4. Next, the Commission argues that the School District does not have zoning immunity because in this case, unlike Madison, violation of the zoning ordinance reaches beyond the boundaries of the subject property and into the surrounding community, creating traffic congestion and assorted safety hazards. As authority, it relies on Robinson v. Indianola Municipal Separate School District, 467 S2d 911 (Miss. 1985), and School Dist. of Philadelphia v. Zoning Board of Adjustment, 207 A2d 864 (Pa. 1965). In those cases, the Supreme Courts of Mississippi and Pennsylvania held that the zoning ordinance of a municipality governing off-street parking does apply to a municipal school district in its construction of a public school. These decisions were based on statutory guidance rationales incompatible with the zoning immunity rule as applied in Macon Assn, and West. We have no authority to create an exception to the immunity based on the effect which the district’s use of its land may or will have on area traffic. It will be necessary instead to find other means of controlling or abating this resulting impact.

5. Finally, the Commission argues that in this case, unlike Macon Assn., application of a balancing-of-interests test is appropriate. Although it has utility, it was rejected in Macon Assn. Therefore, we are not authorized to apply it.

Judgment affirmed.

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


author: Pope, Presiding Judge. Smith, Judge,

text:
    A96A0656.
    HARRIS v. STATE OF GEORGIA.
    (474 SE2d 201)
   Pope, Presiding Judge.

The pivotal question in this forfeiture case is whether the document filed by Ronnie Harris is sufficient to constitute a claim under OCGA § 16-13-49 (n) (4). See State of Ga. v. Cannon, 214 Ga. App. 897 (449 SE2d 519) (1994).

Law enforcement officers executed a search warrant on April 13, 1995, at the residence of Ronnie and Sharon Harris, arrested the Harrises, and charged them with possession of cocaine with intent to distribute. During the search, the officers seized various property in rem, including a savings passbook ($2,112.83). The State proceeded to effect forfeiture by the procedure specified in OCGA § 16-13-49 (n). Harris was served with the notice of forfeiture, and the notice was then posted and duly published.

Within 30 days, Harris filed a document entitled “Claim in Response to Notice of Seizure,” which purported to be a claim to the defendant property in rem under OCGA § 16-13-49 (n) (3). The State filed a motion for judgment of forfeiture and disposition of property, claiming that Harris’ claim was insufficient under the specific pleading requirements of subsection (n) (4). The court granted the motion, finding that the claim Harris had filed was insufficient and deficient under OCGA § 16-13-49 (n) (4), and was equivalent to no claim being filed. In so finding, the court specified that the claim failed to set out the nature and extent of Harris’ interest in the property; that it failed to set out the date, identity of transferor, and circumstances of his acquisition of the property interest; that it failed to specify the Code provisions relied on in asserting that the property was not subject to forfeiture; that it failed to set out “all essential facts supporting each assertion that the property was not subject to forfeiture”; and that it failed to assert facts to support the denial that the property was used to facilitate a violation of the Georgia Controlled Substances Act.

Here, Harris claims that the trial court’s grant of the State’s motion was erroneous and that his claim complied with the statute. We agree and reverse the trial court’s order.

Harris’ signed claim stated that the money in the savings account was accumulated from three sources: an inheritance Harris received as a result of his father’s death on October 13, 1994; a life insurance benefit in the amount of $350 he received because of his father’s death; and winnings of $2,200 he won in the Georgia Lottery during February 1995 at the Jet Food Store in Eatonton. Harris then denied that the money was contraband under OCGA § 16-13-49 (d) (2), denied that it was subject to seizure, and denied that the funds were involved in facilitating any transaction regarding controlled substances. He then stated that the funds were not in close proximity to any property which was subject to forfeiture and were not subject to seizure pursuant to OCGA § 16-13-49 (d) (6).

“It is well established that the legislature may impose pleading requirements in a special statutory proceedings in addition to those found in the Civil Practice Act and in such cases, the sufficiency of a pleading must be judged in light of the specific statutory requirements.” State v. Alford, 264 Ga. 243 (444 SE2d 76) (1994). Although compliance with the strict pleading requirements is mandated, see Jarrett v. State of Ga., 220 Ga. App. 559 (472 SE2d 315) (1996), these requirements must be interpreted reasonably.

In addition to requiring that the claim be signed, that it set forth the caption of the proceedings, the claimant’s address and the relief sought, OCGA § 16-13-49 (n) (4) requires that the claim set forth: “(C) The nature and extent of the claimant’s interest in the property; (D) The date, identity of the transferor, and circumstances of the claimant’s acquisition of the interest in the property; (E) The specific provision of this Code section relied on in asserting that the property is not subject to forfeiture; (F) All essential facts supporting each assertion.”

We conclude that Harris’ claim adequately set forth each of these elements. Unlike State v. Alford, 264 Ga. 243; Jackson v. State of Ga., 218 Ga. App. 437 (461 SE2d 594) (1995); Mitchell v. State, 217 Ga. App. 282 (457 SE2d 237) (1995); and State of Ga. v. Cannon, 214 Ga. App. 897, Harris’ claim did not simply set forth conclusory allegations that the contested money was his. See Williams v. State of Ga., 222 Ga. App. 270 (474 SE2d 98) (1996). Instead, in accordance with subsection (D), Harris outlined the dates of acquisition of the money, the source of the money and the circumstances regarding his acquisition, albeit broadly. He also complied with the requirements of subsections (E) and (F). Although the better practice would have been to include more details concerning the funds (the name of the insurance company, the amount of money received from each source, and a more precise accounting of the remaining funds), Harris’ failure to do so does not render the claim “insufficient” or “deficient” as a matter of law.

This result comports with the legislative intent behind this statute. In State of Ga. v. Cannon, 214 Ga. App. at 898, this Court recognized that the required particularity was the legislature’s attempt “to assure some degree of legitimacy to the claim and to elicit supportive factual information so as to expedite the proceeding.” Id. Nevertheless, the statute’s attempt to assure legitimacy can only go so far. The dissent’s focus on the source of the money with which Harris bought the lottery tickets expands the requirements of the statute beyond reasonable interpretation. Here, Harris’ claim met the requirements and concerns of the statute, and the court improperly granted the State’s motion.

Judgment reversed.

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

Smith, Judge,

dissenting.

I respectfully dissent. I do not believe the issues may be as simply addressed as by the majority’s general, conclusory statement that Harris “complied with the requirements of subsections (E) and (F)” of OCGA § 16-13-49 (n) (4). Harris’s failure to “include more details concerning the funds” was not simply a matter of poor practice; such a failure was fatal to his claim. One claiming interest in property in response to the State’s notice of seizure must “specifically set forth with particularity the elements enumerated at OCGA § 16-13-49 (n) (4).” (Citations and punctuation omitted; emphasis supplied.) Jackson v. State of Ga., 218 Ga. App. 437, 439 (461 SE2d 594) (1995).

Harris failed to set forth his claim with the requisite particularity demanded by OCGA § 16-13-49 (n) (4) in several respects. For example, he described his acquisition of the funds in the account in general terms, without detailing “[a]ll essential facts supporting each assertion.” OCGA § 16-13-49 (n) (4) (F). Notably, he did not account for the source of the money with which he bought winning lottery tickets. This fact was essential in light of the allegation in the record, which the majority does not mention, that the lottery winnings resulted from Harris’s purchase of lottery tickets with proceeds from the sale of drugs. If indeed the lottery tickets were purchased with proceeds from an illegal -transaction, the fund, or at least a portion of it, would be contraband under OCGA § 16-13-49 (d) (2), which provides that “any proceeds derived or realized” from a violation of the Georgia Controlled Substances Act are contraband. The source of funds used to purchase the lottery tickets was a fact peculiarly within Harris’s knowledge, a fact he conveniently failed to mention in his claim.

Decided June 28, 1996.

Martin L. Fierman, for appellant.

Fredric D. Bright, District Attorney, Alberto C. Martinez, Jr., Assistant District Attorney, Lance K. Hiltbrand, for appellee.

Harris’s failure to comply strictly with OCGA § 16-13-49 (n) (4) violated the “plain mandate” of that statute: “to assure some degree of legitimacy to the claim and to elicit supportive factual information so as to expedite the proceeding.” State of Ga. v. Cannon, 214 Ga. App. 897, 898 (449 SE2d 519) (1994). The “facts” appearing in the claim were insufficient to “expedite the proceeding,” and the trial court did not err in entering the judgment of forfeiture.

I am authorized to state that Presiding Judge McMurray, Presiding Judge Birdsong and Judge Blackburn join in this dissent.

       The contents of the savings account were the only property addressed in the court’s order and the only property discussed by the parties here; accordingly, we limit our review to consideration of that account.

       Harris’ wife also filed and served upon the District Attorney a pleading which purported to he a claim to the defendant property in rem. On June 16, the court determined that the pleading Sharon Harris filed was insufficient and deficient under OCGA § 16-13-49 (n) (4) and that the judgment of forfeiture as to her alleged interest in the property was granted to the State. Because Ronnie Harris is the sole appellant here and the order appealed is that regarding the sufficiency of his claim, we will not address the propriety of the order regarding Sharon Harris.


author: Beasley, Chief Judge. Blackburn, Judge,

text:
    A96A0185.
    WILLIAMS v. STATE OF GEORGIA.
    (474 SE2d 98)
   Beasley, Chief Judge.

A vehicle used by Rodney Bernard Gude to transport crack cocaine was seized by law enforcement officers pursuant to OCGA § 16-13-49 (g). Thereafter, Gude’s girl friend, Pamela Williams, filed a claim to the vehicle alleging to be the owner. In response, the State filed an in rem complaint for forfeiture under OCGA § 16-13-49 (o) alleging that Gude was the true owner of the vehicle; that the vehicle was titled in Williams’ name for the purpose of disguising Gude’s ownership of the vehicle; that Gude had been observed to have had exclusive use of the vehicle in the past; and that Williams was a mere nominee or strawperson.

Williams answered but the trial court granted the State’s motion for judgment of forfeiture and disposition of property on the ground that Williams’ answer failed to satisfy the pleading requirements of OCGA § 16-13-49 (o) (3). Williams appeals.

“It is well established that the legislature may impose pleading requirements in special statutory proceedings in addition to those found in the Civil Practice Act and in such cases, the sufficiency of a pleading must be judged in light of the specific statutory requirements.” State of Ga. v. Alford, 264 Ga. 243, 245 (2) (a) (444 SE2d 76) (1994).

OCGA § 16-13-49 (o) (3) (D), (E), and (F) provide that an answer asserting a claim to property subject to forfeiture must set forth, inter alia, the “circumstances of the claimant’s acquisition of the interest in the property!,] • • • [t]he specific provision of this Code section relied on in asserting that the property is not subject to forfeiture . . . [and] [a]ll essential facts supporting each assertion.”

Claimant Williams’ verified answer, which incorporates copies of her certificate of title to the subject car and the tag registration, “set[s] forth” the items required by OCGA § 16-13-49 (o) (3) concerning her relationship to the car and to Rodney Gude’s alleged crime. Considering her answer in its entirety, she asserts that she purchased the used 1984 four-door Deville Cadillac on January 29, 1994, from Dixie Auto Sales in Decatur, Georgia, that seller had a first lien or security interest, that she was solely responsible for payment of the purchase loan, that the lien or security interest of seller Dixie Auto Sales had been released on March 2, 1995, that there were currently no other interest holders besides herself, that Gude had driven her vehicle in the past, and that the vehicle is used by her for personal transportation.

Although the State contends Williams did not specifically aver that she purchased the car, the registration shows her as the owner, Dixie Auto Sales as both the lienholder and “the party from whom purchased” on January 29, 1994, Pamela Williams as “the purchaser whose name appears above,” and what is apparently her signature attesting that this information is correct on penalty of fine or imprisonment. To deny her a hearing because she incorporated documents showing this but did not repeat elsewhere in her answer that she purchased the car from Dixie Auto Sales on that date would elevate form over substance to an intolerable degree.

Williams’ eight-page answer is a far cry from the two-paragraph response which was held to be insufficient in Alford, supra. That answer, which Alford conceded at oral argument was insufficient under OCGA § 16-13-49 (o) (3), merely denied all allegations of the State’s complaint except the description of the property (cocaine, cash, handgun, mobile home, and its land) and, by amendment, included citations to the “innocent owner” provisions of OCGA § 16-13-49 (e). Williams’ answer, on the other hand, provided all the information required by subsection (o) (3) to be in the pleading.

The State faults Williams for providing no details in her answer as to the circumstances of her acquisition of the car. But the statute does not require that, and the statute must be strictly construed, not judicially amplified. Lang v. State of Ga., 168 Ga. App. 693, 695 (4) (310 SE2d 276) (1983). Besides, Williams gave the date of her purchase, the name of the dealership from which she bought the car, and the information that the car was financed by the seller. If such details are contemplated by subsection (o) (3) (F), she provided them. The statute does not suggest that she must state and swear that she earned the money to pay for the car by way of labor or investment or got the funds from a relative or some other benefactor. Nor does it require that documentary proof of purchase be included with or in the answer. That may be aired at the hearing, but this is merely the pleading stage.

Part of the intent of the legislature in enacting the very detailed and precise scheme in OCGA § 16-13-49 is “to protect the interests of innocent property owners.” Alford, supra at 245. The pleading requirement must be construed to implement that intent. Hollowell v. Jove, 247 Ga. 678, 681 (279 SE2d 430) (1981). True, there is another judicially discerned legislative intent, i.e., to provide for the prompt disposition of contraband property. See Alford, supra at 245, and cases cited thereat. But the desire for speed is not a higher value than that of protecting the rights of innocent property owners. See State of Ga. v. Jackson, 197 Ga. App. 619, 620-621 (1) (399 SE2d 88) (1990). That includes a hearing soon after a sufficient answer is filed by the party who wishes return of the property from the custody of the State. OCGA § 16-13-49 (o) (5).

The State also argues that Williams failed to point to any provision of the statute which she relies on in asserting that the car was not subject to forfeiture (subsection (o) (3) (E)). But she expressly and under oath claims each of the negative facts required to establish herself as an innocent owner under subsection (e). In other words, she is not asserting that any other procedural or substantive impediment forecloses forfeiture, such as that, for example, the complaint is deficient (subsection (o) (1)), or the action was brought in the wrong county (subsection (c)), or the property was seized without probable cause (subsection (g) (2)). Of course, she must, as the statute states, “establish” these facts by proof at the hearing, but the case is merely at the pleading stage.

Unlike the unsigned and uninformative conclusory claim in State of Ga. v. Cannon, 214 Ga. App. 897, 898 (449 SE2d 519) (1994), or the partially false and deficient answer in Mitchell v. State of Ga., 217 Ga. App. 282 (457 SE2d 237) (1995), or the conclusory claim in Jackson v. State of Ga., 218 Ga. App. 437, 439 (461 SE2d 594) (1995), Williams’ answer sufficiently met the mandate of the statute “so as to assure some degree of legitimacy to the claim and to [provide] supportive factual information so as to expedite the proceeding.” Cannon, supra at 898.

The judgment of forfeiture is reversed and the case remanded for a hearing within 60 days after receipt of the remittitur. See OCGA § 16-13-49 (o) (5).

Judgment reversed.

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

Blackburn, Judge,

dissenting.

I respectfully dissent from the majority opinion, as I believe that Williams failed to sufficiently comply with the pleading requirements of OCGA § 16-13-49 (o) (3). OCGA § 16-13-49 (o) (3) (D), (E) and (F) provide that an answer asserting a claim to property subject to forfeiture must set forth, inter alia, the “circumstances of the claimant’s acquisition of the interest in the property;. . . [t]he specific provision of this Code section relied on in asserting that the property is not subject to forfeiture; . . . [and] [a]ll essential facts supporting each assertion.” (Emphasis supplied.) The issue before us is not whether Williams’ answer sufficiently alleged that she is the “legal” title holder, as the State concedes this fact in its complaint. The issue is whether her answer sufficiently alleges facts supporting her position that she is not a mere nominee or strawperson with regard to her ownership interest in the vehicle, as alleged in the State’s complaint.

The majority opinion erroneously states that “[Williams] asserts that she purchased the used 1984 four-door Deville Cadillac on January 29, 1994 from Dixie Auto Sales in Decatur, Georgia.” (Emphasis supplied.)

To the contrary, Williams’ answer artfully avoids addressing who purchased the vehicle and who actually paid for same as required by law. Williams simply alleged that she was the owner of the vehicle, that Rodney Bernard Gude has no interest in the vehicle (par. 6), that she was solely responsible for payment of the purchase money loan, and that she “acquired her interest” in the vehicle prior to the subject criminal act.

Williams attached to her answer, but did not incorporate therein, a copy of the tag registration showing the vehicle was placed in her name, and a certificate of title dated March 19, 1994, showing her as the owner and Dixie Auto Sales as the first lienholder. The lien was satisfied on March 2, 1995.

Williams does not allege that she actually paid for the vehicle with personal funds or that no funds therefor were provided by Rodney Bernard Gude. Neither did she attach the most significant documents related to such issues, i.e., the sales contract, the note, if any, copies of cancelled checks or receipts showing payment.

The fact that a vehicle is placed in her name on the title (as alleged by the State) does not establish the circumstances of the claimant’s acquisition and all essential facts supporting Williams’ claim, as required by law. Title may be placed in the name of anyone at the direction of the purchasing individual and would be in the case of a nominee.

In State v. Jackson, 197 Ga. App. 619, 623, n. 1 (399 SE2d 88) (1990) this Court stated “[w]e take note that in addressing the issue of standing it may be appropriate in some circumstances for courts to look beyond a bare allegation of legal title to determine whether the formal holder of title is nothing more than a “strawman” designed to conceal the illegal affairs of others. People engaged in illegal activities often attempt to disguise their interests in property by placing title in someone else’s name. The criminal’s need to hide his ownership of property is especially acute when the property itself is used in the illegal activity. In such cases, proof of base legal title may not be sufficient to establish standing.” (Citations omitted.)

OCGA § 16-13-49 (o) (3) (D), (E) and (F) was drafted to deal with this type of situation and that is why it specifically requires that one asserting a claim for such property allege the “circumstances of the claimant’s acquisition of the interest in the property . . . [and] [a]ll essential facts supporting each assertion.” (Emphasis supplied.)

Simply denying the State’s allegations and citing applicable Code sections, without asserting all essential facts supporting each assertion, is not sufficient to satisfy the pleading requirements of OCGA § 16-13-49 (o) (3). See State v. Alford, 264 Ga. 243, 245 (444 SE2d 76) (1994); see also Jackson v. State, 218 Ga. App. 437, 439 (461 SE2d 594) (1995). Proof of legal title is not sufficient to establish standing in the instant case because the title holder is accused of being a mere nominee or strawperson. State v. Jackson, supra.

The fact that Williams actually purchased the vehicle with her own funds and the means by which Williams obtained the funds to do so were essential facts supporting her claim of innocent ownership. As such, Williams’ answer failed to comply with OCGA § 16-13-49 (o) (3) (D), (E) and (F). This failure frustrated the mandate of the statute which was particularized “so as to assure some degree of legitimacy to the claim and to elicit supportive factual information so as to expedite the proceeding.” (Emphasis supplied.) State v. Cannon, 214 Ga. App. 897, 898 (449 SE2d 519) (1994).

Although the majority argues that this information does not need to be addressed at the pleading stage, this argument is not supported by the express statutory language of OCGA § 16-13-49 (o) (3) or the caselaw. “It is well established that the legislature may impose pleading requirements in special statutory proceedings in addition to those found in the Civil Practice Act and in such cases, the sufficiency of a pleading must be judged in light of the specific statutory requirements.” Alford, supra. Thus, under the facts of this case, the trial court properly found that Williams’ answer was deficient.

Based on the foregoing, I would affirm the trial court’s ruling. I am authorized to state that Presiding Judge McMurray, Presiding Judge Birdsong and Judge Smith join in this dissent.

Decided June 27, 1996

Reconsideration denied July 12,1996.

J. Ellis Millsaps, for appellant.

Fredric D. Bright, District Attorney, Alberto C. Martinez, Jr., Assistant District Attorney, Lance K. Hiltbrand, for appellee.